exv4w1



 






EXECUTION COPY




HUTCHINSON TECHNOLOGY INCORPORATED




3.25% CONVERTIBLE SUBORDINATED NOTES DUE 2026




 






INDENTURE




DATED AS OF JANUARY 25, 2006




 






LASALLE BANK NATIONAL ASSOCIATION,




AS TRUSTEE





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I            DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 1.01	 	Definitions	 	 	1	 
	 
	 	Section 1.02	 	Other Definitions	 	 	10	 
	 
	 	Section 1.03	 	Trust Indenture Act Provisions	 	 	11	 
	 
	 	Section 1.04	 	Rules Of Construction	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II            THE SECURITIES	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 2.01	 	Form And Dating	 	 	12	 
	 
	 	Section 2.02	 	Execution And Authentication	 	 	14	 
	 
	 	Section 2.03	 	Registrar, Paying Agent and Conversion Agent	 	 	14	 
	 
	 	Section 2.04	 	Paying Agent To Hold Money In Trust	 	 	15	 
	 
	 	Section 2.05	 	Lists of Holders of Securities	 	 	16	 
	 
	 	Section 2.06	 	Transfer And Exchange	 	 	16	 
	 
	 	Section 2.07	 	Replacement Securities	 	 	17	 
	 
	 	Section 2.08	 	Outstanding Securities	 	 	17	 
	 
	 	Section 2.09	 	Treasury Securities	 	 	18	 
	 
	 	Section 2.10	 	Temporary Securities	 	 	18	 
	 
	 	Section 2.11	 	Cancellation	 	 	18	 
	 
	 	Section 2.12	 	Additional Transfer And Exchange Requirements	 	 	19	 
	 
	 	Section 2.13	 	CUSIP Numbers	 	 	21	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III            REDEMPTION AND PURCHASE	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 3.01	 	Optional Redemption	 	 	22	 
	 
	 	Section 3.02	 	Selection Of Securities To Be Redeemed	 	 	22	 
	 
	 	Section 3.03	 	Notice Of Redemption	 	 	23	 
	 
	 	Section 3.04	 	Effect Of Notice Of Redemption	 	 	24	 
	 
	 	Section 3.05	 	Deposit Of Redemption Price	 	 	24	 
	 
	 	Section 3.06	 	Securities Redeemed In Part	 	 	24	 
	 
	 	Section 3.07	 	Conversion Arrangement On Call For Redemption	 	 	25	 
	 
	 	Section 3.08	 	Repurchase Of Securities At Option Of The Holder Upon a Fundamental Change	 	 	25	 
	 
	 	Section 3.09	 	Effect Of Fundamental Change Repurchase Notice	 	 	28	 
	 
	 	Section 3.10	 	Deposit of Fundamental Change Repurchase Price	 	 	29	 
	 
	 	Section 3.11	 	Repayment To The Company	 	 	29	 
	 
	 	Section 3.12	 	Purchase Of Securities At Option Of The Holder On Specified Dates	 	 	29	 
	 
	 	Section 3.13	 	Securities Purchased In Part	 	 	33	 
	 
	 	Section 3.14	 	Compliance With Securities Laws Upon Purchase of Securities	 	 	33	 
	 
	 	Section 3.15	 	Purchase Of Securities In Open Market	 	 	34	 






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	 	 	 	 	 	 	Page	 
	ARTICLE IV            CONVERSION	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 4.01	 	Conversion Privilege And Conversion Rate	 	 	34	 
	 
	 	Section 4.02	 	Conversion Procedure	 	 	39	 
	 
	 	Section 4.03	 	Fractional Shares	 	 	40	 
	 
	 	Section 4.04	 	Taxes On Conversion	 	 	41	 
	 
	 	Section 4.05	 	Company To Provide Stock	 	 	41	 
	 
	 	Section 4.06	 	Adjustment Of Conversion Rate	 	 	41	 
	 
	 	Section 4.07	 	No Adjustment	 	 	49	 
	 
	 	Section 4.08	 	[Intentionally Omitted]	 	 	50	 
	 
	 	Section 4.09	 	Notice of Adjustment	 	 	50	 
	 
	 	Section 4.10	 	Notice of Certain Transactions	 	 	50	 
	 
	 	Section 4.11	 	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	 	 	50	 
	 
	 	Section 4.12	 	Trustee’s Disclaimer	 	 	52	 
	 
	 	Section 4.13	 	Voluntary Increase	 	 	52	 
	 
	 	Section 4.14	 	Payment of Cash in Lieu of Common Stock	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V            COVENANTS	 	 	53	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 5.01	 	Payment Of Securities	 	 	53	 
	 
	 	Section 5.02	 	SEC and Other Reports	 	 	54	 
	 
	 	Section 5.03	 	Compliance Certificates	 	 	55	 
	 
	 	Section 5.04	 	Further Instruments And Acts	 	 	55	 
	 
	 	Section 5.05	 	Maintenance Of Corporate Existence	 	 	55	 
	 
	 	Section 5.06	 	[Intentionally Omitted]	 	 	55	 
	 
	 	Section 5.07	 	Stay, Extension And Usury Laws	 	 	55	 
	 
	 	Section 5.08	 	[Intentionally Omitted]	 	 	55	 
	 
	 	Section 5.09	 	Maintenance of Office or Agency	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI            CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 6.01	 	Company May Consolidate, Etc	 	 	56	 
	 
	 	Section 6.02	 	Successor Substituted	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII            DEFAULT AND REMEDIES	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 7.01	 	Events Of Default	 	 	57	 
	 
	 	Section 7.02	 	Acceleration	 	 	59	 
	 
	 	Section 7.03	 	Other Remedies	 	 	60	 
	 
	 	Section 7.04	 	Waiver Of Defaults And Events Of Default	 	 	60	 
	 
	 	Section 7.05	 	Control By Majority	 	 	60	 
	 
	 	Section 7.06	 	Limitations On Suits	 	 	61	 






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	 	 	 	 	 	 	Page	 
	 
	 	Section 7.07	 	Rights Of Holders To Receive Payment And To Convert	 	 	61	 
	 
	 	Section 7.08	 	Collection Suit By Trustee	 	 	61	 
	 
	 	Section 7.09	 	Trustee May File Proofs Of Claim	 	 	62	 
	 
	 	Section 7.10	 	Priorities	 	 	62	 
	 
	 	Section 7.11	 	Undertaking For Costs	 	 	63	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII            TRUSTEE	 	 	63	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 8.01	 	Obligations Of Trustee	 	 	63	 
	 
	 	Section 8.02	 	Rights Of Trustee	 	 	64	 
	 
	 	Section 8.03	 	Individual Rights Of Trustee	 	 	65	 
	 
	 	Section 8.04	 	Trustee’s Disclaimer	 	 	66	 
	 
	 	Section 8.05	 	Notice Of Default Or Events Of Default	 	 	66	 
	 
	 	Section 8.06	 	Reports By Trustee To Holders	 	 	66	 
	 
	 	Section 8.07	 	Compensation And Indemnity	 	 	66	 
	 
	 	Section 8.08	 	Replacement Of Trustee	 	 	67	 
	 
	 	Section 8.09	 	Successor Trustee By Merger, Etc	 	 	68	 
	 
	 	Section 8.10	 	Eligibility; Disqualification	 	 	68	 
	 
	 	Section 8.11	 	Preferential Collection Of Claims Against Company	 	 	69	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX            SATISFACTION AND DISCHARGE OF INDENTURE	 	 	69	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 9.01	 	Satisfaction And Discharge Of Indenture	 	 	69	 
	 
	 	Section 9.02	 	Application Of Trust Money	 	 	70	 
	 
	 	Section 9.03	 	Repayment To Company	 	 	70	 
	 
	 	Section 9.04	 	Reinstatement	 	 	71	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X            AMENDMENTS; SUPPLEMENTS AND WAIVERS	 	 	71	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 10.01	 	Without Consent Of Holders	 	 	71	 
	 
	 	Section 10.02	 	With Consent Of Holders	 	 	72	 
	 
	 	Section 10.03	 	Compliance With Trust Indenture Act	 	 	73	 
	 
	 	Section 10.04	 	Revocation And Effect Of Consents	 	 	73	 
	 
	 	Section 10.05	 	Notation On Or Exchange of Securities	 	 	73	 
	 
	 	Section 10.06	 	Trustee To Sign Amendments, Etc	 	 	73	 
	 
	 	Section 10.07	 	Effect Of Supplemental Indentures	 	 	74	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI            SUBORDINATION	 	 	74	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 11.01	 	Agreement to Subordinate	 	 	74	 
	 
	 	Section 11.02	 	Liquidation; Dissolution; Bankruptcy	 	 	74	 
	 
	 	Section 11.03	 	Default on Designated Senior Debt	 	 	75	 
	 
	 	Section 11.04	 	Acceleration of Securities	 	 	76	 
	 
	 	Section 11.05	 	When Distribution Must Be Paid Over	 	 	76	 
	 
	 	Section 11.06	 	Notice by Company	 	 	76	 






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	 	Section 11.07	 	Subrogation	 	 	77	 
	 
	 	Section 11.08	 	Relative Rights	 	 	77	 
	 
	 	Section 11.09	 	Subordination May Not Be Impaired by Company	 	 	77	 
	 
	 	Section 11.10	 	Distribution or Notice to Representative	 	 	77	 
	 
	 	Section 11.11	 	Right of Trustee and Paying Agent	 	 	78	 
	 
	 	Section 11.12	 	Authorization to Effect Subordination	 	 	78	 
	 
	 	Section 11.13	 	Article Applicable to Paying Agent	 	 	78	 
	 
	 	Section 11.14	 	Senior Debt Entitled to Rely	 	 	78	 
	 
	 	Section 11.15	 	Permitted Payments	 	 	79	 
	 
	 	Section 11.16	 	Pari Passu Indebtedness	 	 	79	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII            MISCELLANEOUS	 	 	79	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Section 12.01	 	Trust Indenture Act Controls	 	 	79	 
	 
	 	Section 12.02	 	Notices	 	 	79	 
	 
	 	Section 12.03	 	Communications By Holders With Other Holders	 	 	80	 
	 
	 	Section 12.04	 	Certificate And Opinion As To Conditions Precedent	 	 	80	 
	 
	 	Section 12.05	 	Record Date For Vote Or Consent Of Holders of Securities	 	 	81	 
	 
	 	Section 12.06	 	Rules By Trustee, Paying Agent, Registrar And Conversion Agent	 	 	81	 
	 
	 	Section 12.07	 	Legal Holidays	 	 	81	 
	 
	 	Section 12.08	 	Governing Law	 	 	82	 
	 
	 	Section 12.09	 	No Adverse Interpretation Of Other Agreements	 	 	82	 
	 
	 	Section 12.10	 	No Recourse Against Others	 	 	82	 
	 
	 	Section 12.11	 	No Security Interest Created	 	 	82	 
	 
	 	Section 12.12	 	Successors	 	 	82	 
	 
	 	Section 12.13	 	Multiple Counterparts	 	 	82	 
	 
	 	Section 12.14	 	Separability	 	 	82	 
	 
	 	Section 12.15	 	Table Of Contents, Headings, Etc	 	 	82	 
	 
	 	 	 	 	 	 	 	 
	EXHIBIT A            Form of Security	 	 	 	 






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CROSS REFERENCE TABLE*




	 	 	 	 	 
	 	 	 	 	INDENTURE
	TIA SECTION	 	SECTION
	Section
	 	310	 	12.01
	 
	 	310(a)(1)	 	8.10
	 
	 	(a)(2)	 	8.10
	 
	 	(a)(3)	 	N.A.**
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	8.10
	 
	 	(b)	 	8.10
	 
	 	(c)	 	N.A.
	Section
	 	311	 	12.01
	 
	 	311(a)	 	8.11
	 
	 	(b)	 	8.11
	 
	 	(c)	 	N.A.
	Section
	 	312	 	12.01
	 
	 	312(a)	 	2.05
	 
	 	(b)	 	12.03
	 
	 	(c)	 	12.03
	Section
	 	313	 	12.01
	 
	 	313(a)	 	8.06(a)
	 
	 	(b)(1)	 	N.A.
	 
	 	(b)(2)	 	8.06(a)
	 
	 	(c)	 	8.06(a)
	 
	 	(d)	 	8.06(b)
	Section
	 	314	 	12.01
	 
	 	314(a)	 	5.02(a); 5.03
	 
	 	(b)	 	N.A.
	 
	 	(c)(1)	 	2.02; 9.01; 12.04
	 
	 	(c)(2)	 	9.01; 12.04
	 
	 	(c)(3)	 	N.A.
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	12.04
	 
	 	(f)	 	N.A.
	Section
	 	315	 	12.01
	 
	 	315(a)	 	8.01(b)
	 
	 	(b)	 	8.05
	 
	 	(d)	 	8.01(c)
	 
	 	(d)(2)	 	8.01(c)
	 
	 	(d)(3)	 	8.01(c)
	 
	 	(e)	 	7.11
	Section
	 	316	 	12.01
	 
	 	316(a)	 	7.05; 10.02 (b)
	 
	 	(b)	 	7.07
	 
	 	(c)	 	12.05
	Section
	 	317	 	7.08; 7.09, 12.01
	Section
	 	318	 	12.01








 




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

	 
	**	 	N.A. means Not Applicable.




 









 










     THIS INDENTURE dated as of January 25, 2006 is between Hutchinson Technology
Incorporated, a corporation duly organized under the laws of the State of Minnesota (the
“Company”), and LaSalle Bank National Association, a national banking association organized and
existing under the laws of the United States, as Trustee (the “Trustee”).



     In consideration of the purchase of the securities (as defined herein) by the Holders thereof,
both parties agree as follows for the benefit of the other and for the equal and ratable benefit of
the Holders of the Company’s 3.25% Convertible Subordinated Notes due 2026.



ARTICLE I




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01 Definitions.



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



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



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



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



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



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



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



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



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



 









 





     “Change of Control” means the occurrence of any of the following after the date hereof: (i)
the acquisition by any Person of Beneficial Ownership, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of shares of the Company’s
Capital Stock entitling that person to exercise 50% or more of the total voting power of all shares
of the Company’s Capital Stock entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its subsidiaries or any of its employee benefit plans; or (ii)
the consolidation or merger of the Company with or into any other Person, any merger of another
Person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company’s properties and assets to another person other than to one or
more of the Company’s wholly-owned subsidiaries, provided that this clause (ii) shall not apply to
(A) any transaction (y) that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Company’s Capital Stock and (z) pursuant to which holders
of the Company’s Capital Stock immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power of all shares of the
Capital Stock entitled to vote generally in elections of directors of the continuing or surviving
Person immediately after the transaction; or (B) any merger solely for the purpose of changing the
Company’s jurisdiction of incorporation and resulting in a reclassification, conversion or exchange
of outstanding shares of Common Stock solely into shares of common stock of the surviving entity;
or (iii) if, during any consecutive two-year period, individuals who at the beginning of that
two-year period constituted the Company’s Board of Directors, together with any new directors whose
election to the Company’s Board of Directors, or whose nomination for election by the Company’s
shareholders, was approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the Company’s Board of
Directors then in office. Notwithstanding anything to the contrary set forth herein, it will not
constitute a Change of Control if (1) the Closing Price for any five Trading Days during the ten
Trading Days immediately preceding the effective date of the Change of Control is at least equal to
105% of the Conversion Price in effect on such day (the “105% Trading Price Exception”), or (2)
100% of the consideration for the Common Stock (excluding cash payments for fractional shares and
cash payments made in respect of dissenters’ appraisal rights) in the transaction or transactions
constituting a Change of Control consists of common stock or American Depositary Shares
representing shares of common stock, in each case which are traded on a U.S. national securities
exchange or quoted on the Nasdaq National Market, or which will be so traded or quoted when issued
or exchanged in connection with the Change of Control, and as a result of such transaction or
transactions the Securities become convertible solely into cash in an amount equal to the lesser of
$1,000 and the Conversion Value and, if the Conversion Value is greater than $1,000, payment of the
excess value in the form of such common stock, subject to the right to deliver cash in lieu of all
or a portion of such remaining shares in
substantially the same manner as described in Section 4.14; provided that, with respect to an
entity organized under the laws of a jurisdiction outside the United States, such entity has a
worldwide total market capitalization of its equity securities of at least three times the market
capitalization of the Company before giving effect to the consolidation or merger.



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



     “Common Stock” means the common stock of the Company, par value $0.01 per share as it exists
on the date of this Indenture and any shares of any class or classes of Capital Stock of the
Company resulting from any reclassification or reclassifications thereof, or, in the event of a
merger, consolidation or other similar transaction involving the Company that is otherwise
permitted hereunder in which the Company is not the surviving corporation, the common stock, common
equity interests, ordinary shares or depositary shares or other certificates representing common
equity interests of such surviving corporation or its direct or indirect parent corporation, and
which have no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company and which are not
subject to redemption by the Company; provided, however, that if at any time there shall be
more than one such resulting class, the shares of each such class then so issuable on conversion of
Securities shall be substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.



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



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



     “Conversion Rate” means the rate at which shares of Common Stock shall be delivered upon
conversion, which rate shall be initially 27.4499 shares of Common Stock for each $1,000 principal
amount of Securities, as adjusted from time to time pursuant to the provisions of this Indenture.



     “Conversion Reference Period” means:



     (i) for Securities that are converted after the Company has specified a Redemption Date, the
ten consecutive Trading Days beginning on the third Trading Day following such Redemption Date (in
the case of Securities being converted which were previously called for redemption (including a
partial redemption) this clause (i) shall only apply to those Securities that are subject to
redemption);



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     (ii) for Securities that are converted during the period beginning on the 30th day
prior to the Final Maturity Date, the ten consecutive Trading Days beginning on the third Trading
Day following the Final Maturity Date; and



     (iii) in all other instances, the ten consecutive Trading Days beginning on the third Trading
Day following the Conversion Date.



     “Conversion Value” means, for each $1,000 principal amount of Securities, an amount equal to
the Daily Conversion Values for each of the ten consecutive Trading Days of the Conversion
Reference Period.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time the
trust created by this Indenture shall be administered, which initially will be the office of
LaSalle Bank National Association, located at 135 South LaSalle Street, Chicago, Illinois 60603,
Attention: Gregory Clarke.



     “Daily Conversion Value” means, with respect to any Trading Day, the product of (i) the
applicable Conversion Rate and (ii) the Volume Weighted Average Price per share of Common Stock on
such Trading Day.



     “Daily Share Amount” means, for each Trading Day of the Conversion Reference Period and for
each $1,000 principal amount of Securities surrendered for conversion, a number of shares (but in
no event less than zero) equal to (i) the amount of (a) the Volume Weighted Average Price per share
of Common Stock on such Trading Day multiplied by the applicable Conversion Rate, less (b) $1,000;
divided by (ii) the Volume Weighted Average Price per share of Common Stock on such Trading Day
multiplied by 10.



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



     “Designated Senior Debt” means (i) indebtedness from time to time outstanding under the
Company’s amended and restated loan agreement with LaSalle Bank National Association and (ii) any
particular Senior Debt which has at the time of a payment event of default or the giving of a
Payment Blockage Notice, as the case may be, an aggregate outstanding principal amount in
excess of $5 million, if the instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the Company is a party) expressly
provides that such Indebtedness shall be “Designated Senior Debt” for purposes of this Indenture
(provided that such instrument, agreement or other document may place limitations and conditions on
the right of such Senior Debt to exercise the rights of Designated Senior Debt.)



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



     “Final Maturity Date” means January 15, 2026.



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



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



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



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



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



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



     “Indebtedness” means, with respect to any specified Person, all obligations of such Person,
whether or not contingent:



     (i)(a) for borrowed money (including, but not limited to, any indebtedness secured by a
security interest, mortgage or other lien on the assets of such Person that is (1) given to secure
all or part of the purchase price of property subject thereto, whether given to the vendor of such
property or to another, or (2) existing on property at the time of acquisition thereof), (b)
evidenced by a note, debenture, bond or other similar written instrument, (c) under a lease
required to be capitalized on the balance sheet of the lessee under GAAP, or under any lease or
related document (including a purchase agreement) that provides that such Person is contractually
obligated to purchase or cause a third party to purchase and thereby guarantee a minimum residual
value of the lease property to the lessor and such Person’s obligations under such lease or related
document to purchase or to cause a third party to purchase such leased property, (d) in respect of
letters of credit, bank guarantees or bankers’ acceptances (including reimbursement obligations
with respect to any of the foregoing), (e) obligations secured by a mortgage, pledge, lien, charge,
or similar encumbrance to which the property or assets of such Person are subject, whether or not
the



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obligation secured thereby shall have been assumed by or shall otherwise be such Person’s legal
liability, (f) in respect of the balance of deferred and unpaid purchase price of any property or
assets, and (g) under interest rate or currency swap agreements, cap, floor and collar agreements,
spot and forward contracts and similar agreements and arrangements;




     (ii) with respect to any obligation of others of the type described in the preceding clause
(i) or under clause (iii) below assumed by or guaranteed in any manner by such Person (including,
without limitation, through “take or pay” and similar arrangements), contingent or otherwise (and
the obligations of such Person under any such assumptions, guarantees or other such arrangements);
and



     (iii) any and all deferrals, renewals, extensions, refinancings and refundings of, or
amendments, modifications or supplements to, any of the foregoing.


The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount; and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.




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



     “Interest Payment Date” means January 15 and July 15 of each year, commencing July 15, 2006.



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



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



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers;
provided, however, that for purposes of Sections 4.09 and 5.03, “Officers’ Certificate”
means a certificate signed by (a) the principal executive officer, principal financial officer or
principal accounting officer of the Company and (b) one other Officer of the Company.



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



     “Person” or “person” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated organization,



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government or any agency or political subdivision thereof or any syndicate or group that would be
deemed to be a “person” under Section 13(d)(3) of the Exchange Act or any other entity.




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



     “Redemption Date” when used with respect to any Security to be redeemed, means the date fixed
by the Company for such redemption pursuant to Section 3.01.



     “Redemption Price” when used with respect to any Security to be redeemed, means the prices set
forth below, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date to receive interest
due on an Interest Payment Date that is also the Redemption Date). The following cash prices are
for Securities redeemed during the 12-month period commencing on January 21 of the years set forth
below, and are expressed as percentages of principal amount:



	 	 	 	 	 
	Redemption Year	 	Price
	2011
	 	 	100.93	%
	2012
	 	 	100.46	%
	2013 and thereafter
	 	 	100.00	%






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



     “Representative” means (a) the indenture trustee or other trustee, agent or representative for
any Senior Debt or (b) with respect to any Senior Debt that does not have any such trustee, agent
or other representative, (i) in the case of such Senior Debt issued pursuant to an agreement
providing for voting arrangements as among the holders or owners of such Senior Debt, any
holder or owner of such Senior Debt acting with the consent of the required persons necessary to
bind such holders or owners of such Senior Debt and (ii) in the case of all other such Senior Debt,
the holder or owner of such Senior Debt.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the up to $225,000,000 aggregate principal amount ($250,000,000 aggregate
principal amount if the Underwriters exercise their overallotment option to purchase up to an
additional $25,000,000 aggregate principal amount of notes in full) of 3.25% Convertible
Subordinated Notes due 2026, or any of them (each a “Security”), as amended or supplemented from
time to time, that are issued under this Indenture.



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



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



     “Senior Debt” means the principal of, premium, if any, and interest on, rent under, and any
other amounts payable on or in respect of any Indebtedness of the Company (including, without
limitation, any principal, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any Indebtedness in respect of such
Indebtedness and any interest accruing after the filing of a petition by or against the Company
under any Bankruptcy Law, whether or not allowed as a claim after such filing in any proceeding
under such Bankruptcy Law), whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all
deferrals, renewals, extensions, refinancings or refundings of, or amendments, modifications or
supplements to the foregoing); provided, however, that Senior Debt does not include
(i) Indebtedness evidenced by the Securities or the Company’s 2.25% Convertible Subordinated Notes
due 2010, (ii) any liability for Federal, state, local or other taxes owed or owing by the Company,
(iii) Indebtedness of the Company to any Subsidiary of the Company, (iv) trade payables and accrued
expenses (including, without limitation, accrued compensation) of the Company for goods, services
or materials purchased or provided in the ordinary course of business, and (v) any particular
Indebtedness in which the instrument creating or evidencing the same expressly provides that such
Indebtedness shall not be senior in right of payment to, or is pari passu with, or is subordinated
or junior to, the Securities.



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



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



     “Subsidiary” means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency within the control of such Person to
satisfy) to vote in the election of directors, managers, general partners or trustees thereof is at
the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one
or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.



     “Termination of Trading” means the termination (but not the temporary suspension) of trading
of the Common Stock, which will be deemed to have occurred if the Common Stock or other common
stock into which the Securities are convertible is neither listed for trading on a United States
national securities exchange nor approved for listing on Nasdaq or any similar United States system
of automated dissemination of quotations of securities prices, or traded in over-the-counter
securities markets, and no American Depository Shares or similar instruments for such common stock
are so listed or approved for listing in the United States.



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



     “Trading Day” means any day on which the Nasdaq National Market or, if the Common Stock is not
quoted on the Nasdaq National Market, the principal or regional 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” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Trustee for $5 million principal amount of
Securities at approximately 3:30 p.m., New York City time, on such determination date from three
nationally recognized securities dealers the Company selects; 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 $5
million principal amount of Securities from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the
product of the Closing Price of the Common Stock and the Conversion Rate per $1,000 principal
amount of Securities.



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



     “Trust Officer” means, with respect to the Trustee, any officer assigned to the Corporate
Trust Office, and also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer’s knowledge of and familiarity with the particular subject.



     “Underwriters” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and each of the other
Underwriters named in Schedule A to the Purchase Agreement.



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



     “Volume Weighted Average Price” means, for each share of Common Stock on any Trading Day, such
price as is displayed on Bloomberg (or any successor service) page HTCH <equity> VAP in
respect of the period from 9:30 a.m. to 4:00 p.m., 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



-9-









 




such Trading Day as
determined by a nationally recognized independent investment banking firm retained for this purpose
by the Company.




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



     Section 1.02 Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section
	“Agent Members”
	 	 	2.01	 
	“Bankruptcy Law”
	 	 	7.01	 
	“Business Combination”
	 	 	4.11	 
	“Company Order”
	 	 	2.02	 
	“Company Put Right Notice”
	 	 	3.12	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	4.02	 
	“Conversion Trigger Price”
	 	 	4.01	 
	“Current Market Price”
	 	 	4.06	 
	“DTC”
	 	 	2.01	 
	“Depositary”
	 	 	2.01	 
	“Determination Date”
	 	 	4.06	 
	“Distributed Securities”
	 	 	4.06	 
	“Distribution Notice”
	 	 	4.01	 
	“Event of Default”
	 	 	7.01	 
	“Expiration Date”
	 	 	4.06	 
	“Expiration Time”
	 	 	4.06	 
	“Fundamental Change Company Notice”
	 	 	3.08	 
	“Fundamental Change Repurchase Date”
	 	 	3.08	 
	“Fundamental Change Repurchase Notice”
	 	 	3.08	 
	“Legal Holiday”
	 	 	12.07	 
	“Make Whole Premium”
	 	 	4.01	 
	“Notice of Default”
	 	 	7.01	 
	“Paying Agent”
	 	 	2.03	 
	“Payment Blockage Notice”
	 	 	11.03	 
	“Payment Blockage Period”
	 	 	11.03	 
	“Primary Registrar”
	 	 	2.03	 
	“Purchase Agreement”
	 	 	2.01	 
	“Purchased Shares”
	 	 	4.06	 
	“Put Right Purchase Date”
	 	 	3.12	 
	“Put Right Purchase Notice”
	 	 	3.12	 
	“Put Right Purchase Price”
	 	 	3.12	 






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	Term	 	Defined in Section
	“record date”
	 	 	4.06	 
	“Receiver”
	 	 	7.01	 
	“Registrar”
	 	 	2.03	 
	“Rights”
	 	 	4.06	 
	“Rights Plan”
	 	 	4.06	 
	“Spinoff Securities”
	 	 	4.06	 
	“Spinoff Valuation Period”
	 	 	4.06	 
	“tender offer”
	 	 	4.06	 
	“Triggering Distribution”
	 	 	4.06	 






     Section 1.03 Trust Indenture Act Provisions.



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



     “indenture securities” means the Securities;



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



     “indenture to be qualified” means this Indenture;



     “indenture trustee” or “institutional trustee” means the Trustee; and “obligor” on the
indenture securities means the Company or any other obligor on the Securities.



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



     Section 1.04 Rules Of Construction.



          (a) Unless the context otherwise requires:





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




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




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




     (4) provisions apply to successive events and transactions;



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




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




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




     (8) all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits
and Sections, respectively, of or to this Indenture unless otherwise specified
herein, and the terms “herein,” “hereof” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.



ARTICLE II




THE SECURITIES




     Section 2.01 Form And Dating.



     The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange or automated quotation system rule or regulation or usage. The Company shall provide any
such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication. The Securities are being offered and sold by the Company pursuant
to a Purchase Agreement dated January 19, 2006 (the “Purchase Agreement”) among the Company,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and each of the other Underwriters named in
Schedule A thereto, in transactions registered under the Securities Act.



          (a) Global Securities. All of the Securities are initially being offered and sold to
the Underwriters in reliance on an effective registration statement under the Securities Act and
shall be issued initially in the form of a Global Security, which shall be deposited on behalf of
the purchasers of the Securities represented thereby with the Trustee, at its Corporate Trust
Office, as custodian for the depositary, The Depository Trust Company (“DTC”, and such depositary,
or any successor thereto, being hereinafter referred to as the “Depositary”), and registered in the
name of its nominee, Cede & Co. (or any successor thereto), for the accounts of participants in the
Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Securities Custodian as hereinafter provided,
subject in each case to compliance with the Applicable Procedures.




          (b) Global Securities In General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent




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




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



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





“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED



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CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.”



     Section 2.02 Execution And Authentication.



          (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited to $225,000,000 aggregate principal amount ($250,000,000 aggregate
principal amount if the Underwriters exercise their over-allotment option in full), except as
provided in Sections 2.06 and 2.07.




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




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




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




          (e) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $225,000,000 aggregate principal amount
($250,000,000 aggregate principal amount if the Underwriters exercise their overallotment option in
full) upon receipt of a written order or orders of the Company signed by an Officer of the Company
(a “Company Order”). The Company Order shall specify the amount of Securities to be authenticated,
shall provide that all such securities will be represented by a Global Security and the date on
which each original issue of Securities is to be authenticated.




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





-14-









 








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




     Section 2.03 Registrar, Paying Agent and Conversion Agent.



          (a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices
or agencies where Securities may be presented for payment (each, a “Paying Agent”), one or more
offices or agencies where Securities may be presented for conversion (each, a “Conversion Agent”)
and one or more offices or agencies where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will at all times maintain a Paying
Agent, Conversion Agent, Registrar and an office or agency where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served in New York, New York or
Chicago, Illinois. One of the Registrars (the “Primary Registrar”) shall keep a register of the
Securities and of their transfer and exchange.




          (b) The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, provided that the Agent may be an Affiliate of the Trustee. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The Company shall notify the
Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails
to maintain a Registrar, Paying Agent, Conversion Agent, or agent for service of notices and
demands in any place required by this Indenture, or fails to give the foregoing notice, the Trustee
shall act as such. The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 5.01 and Article IX).




          (c) The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee in
Chicago, Illinois, which office at the date of the execution of this Indenture is located at 135
South LaSalle Street, Suite 1960, Chicago, Illinois 60603, Attention: Gregory Clarke, where notices
and demands to or upon the Company in respect of the Securities and this Indenture shall be served.




     Section 2.04 Paying Agent To Hold Money In Trust.



     Prior to 12:00 p.m. (noon), New York City time, on each due date of the payment of principal
of, or interest on, any Securities, the Company shall deposit with the Paying Agent a sum
sufficient to pay such principal or interest so becoming due. Subject to Section 9.03, a Paying
Agent shall hold in trust for the benefit of Holders of Securities or the Trustee all money held by
the Paying Agent for the payment of principal of, or interest on, the Securities, and shall notify
the Trustee of any failure by the Company (or any other obligor on the Securities) to make any such
payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall, before
12:00 p.m.(noon), New York City time, on each due date of the principal of, or interest on,
any Securities, segregate the money and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may at any



-15-









 




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 Lists of Holders of Securities.



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



     Section 2.06 Transfer And Exchange.



          (a) Subject to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register a transfer thereof or
to exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested;
provided, however, that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if
applicable, a transfer certificate each in the form included in Exhibit A, and completed in a
manner satisfactory to the Registrar and duly executed by the Holder thereof or its attorney duly
authorized in writing. To permit registration of transfers and exchanges, upon surrender of any
Security for registration of transfer or exchange at an office or agency maintained pursuant to
Section 2.03, the Company shall execute and the Trustee shall authenticate Securities of a like
aggregate principal amount at the Registrar’s request. Any exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto; provided that this
sentence shall not apply to any exchange pursuant to Section 2.10, 3.06, 3.13, 4.02(e) or 10.05.




          (b) Neither the Company, any Registrar nor the Trustee shall be required to exchange or
register a transfer of (1) any Securities for a period of 15 days next preceding mailing of a
notice of Securities to be redeemed, (2) any Securities or portions thereof selected or called
for redemption (except, in the case of redemption of a Security in part, the portion thereof
not to be redeemed), (3) any Securities or portions thereof in respect of which a Fundamental
Change Repurchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the
case of the purchase of a Security in part, the portion thereof not to be purchased) or (4) any
Securities or portions thereof in respect of which a Put Right Purchase Notice has been delivered
and not withdrawn by the Holder thereof (except, in the case of the purchase of a Security in part,
the portion thereof not to be purchased).





-16-









 








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




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




          (e) [Intentionally Omitted]




          (f) [Intentionally Omitted]




     Section 2.07 Replacement Securities.



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




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




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




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




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




     Section 2.08 Outstanding Securities.



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




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




          (c) If a Paying Agent (other than the Company or an Affiliate of the Company) holds in respect
of the outstanding securities on a Redemption Date, a Fundamental Change Repurchase Date, a Put
Right Purchase Date, or the Final Maturity Date money sufficient to pay the principal of (including
premium, if any) and accrued interest on Securities (or portions thereof) payable on that date,
then on and after such Redemption Date, Fundamental Change Repurchase Date, Put Right Purchase
Date, or Final Maturity Date, as the case may be, such Securities (or portions thereof, as the case
may be) shall cease to be outstanding and cash interest on them shall cease to accrue; provided
that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision thereof satisfactory to the Trustee has been made.




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




     Section 2.09 Treasury Securities.



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



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     Section 2.10 Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form of definitive securities but may have
variations that the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary Securities.



     Section 2.11 Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee or its agent any
Securities surrendered to them for transfer, exchange, redemption, purchase, payment or conversion.
The Trustee and no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, purchase, payment, conversion or
cancellation and shall dispose of the cancelled Securities in accordance with its customary
procedures or deliver the canceled Securities to the Company. All Securities which are redeemed,
purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the Final
Maturity Date pursuant to Article III shall be delivered to the Trustee for cancellation, and the
Company may not hold or resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to Article IV.



     Section 2.12 Additional Transfer And Exchange Requirements.



          (a) [Intentionally Omitted]




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




          (c) Whenever any Security other than a Global Security is presented or surrendered for
registration of transfer or in exchange for a Security registered in a name other than that of the
Holder, such Security must be accompanied by a certificate in substantially the form set forth in
Exhibit A, dated the date of such surrender and signed by the Holder of such Security. The
Registrar shall not be required to accept for such registration of transfer or exchange any
Security not so accompanied by a properly completed certificate.




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




          (d) [Intentionally Omitted]




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





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




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




     (3) Securities issued in exchange for a Global Security or any portion thereof
shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear the
applicable legend provided for herein. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to
any Global Security to be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of the



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Trustee.
Upon any such surrender or adjustment, the Trustee shall authenticate and deliver
the Security issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.




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




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




     (6) Neither Agent Members nor any other Persons on whose behalf Agent Members
may act shall have any rights under this Indenture with respect to any Global
Security registered in the name of the Depositary or any nominee thereof, or under
any such Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent Member
may act, the operation of customary practices of such Persons governing the exercise
of the rights of a holder of any Security.




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



          (f) [Intentionally Omitted]




     Section 2.13 CUSIP Numbers.



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



ARTICLE III




REDEMPTION AND PURCHASE




     Section 3.01 Optional Redemption.



          (a) Prior to January 21, 2011, the Securities shall not be redeemable. On or after January
21, 2011, the Company may, at its option, redeem the Securities for cash at the Redemption Price,
in whole or in part at any time or from time to time, on any Redemption Date (or in the case of
multiple redemptions, Redemption Dates) fixed by the Company. If a Redemption Date is also an
Interest Payment Date, then interest on the Securities payable on such Interest Payment Date will
be payable to the Holders in whose names the Securities are registered at the close of business on
the applicable Regular Record Date.




          (b) If the Company elects to redeem Securities pursuant to this Section 3.01, it shall notify
the Trustee at least fifteen days prior to the date it sends the redemption notice specified in
Section 3.03 to the Holders (unless a shorter notice shall be satisfactory to the Trustee), of the
Redemption Date and the principal amount of Securities to be redeemed.




     Section 3.02 Selection Of Securities To Be Redeemed.



          (a) If less than all of the Securities are to be redeemed, unless the Applicable Procedures
specify otherwise, the Trustee shall select the Securities to be redeemed within five Business Days
after it receives the notice described in Section 3.01(b). The Trustee shall make the selection
from the Securities outstanding and not previously called for redemption by lot, or in its
discretion, on a pro rata basis or by another method that the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock exchange or market
on which the Securities are listed). Securities in denominations of $1,000 principal amount may
only be redeemed in whole. The Trustee may select for redemption portions (equal to $1,000
principal amount or any integral multiple thereof) of the principal amount of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.




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          (b) If any Security selected for partial redemption is converted in part before termination of
the conversion right with respect to the portion of the Security so selected, the converted portion
of such Security shall be deemed (up to the amount of the redemption) to be the portion selected
for redemption. Securities which have been converted subsequent to the Trustee commencing
selection of Securities to be redeemed but prior to redemption of such Securities shall be treated
by the Trustee as outstanding for the purpose of such selection.




          (c) In the event of any redemption in part, the Company shall not be required to (i) issue,
register the transfer of or exchange any Security during a period beginning at the opening of
business 15 days before any selection of Securities for redemption and ending at the close of
business on the earliest date on which the relevant notice of redemption is deemed to have been
given to all Holders of Securities to be redeemed, or (ii) register the transfer or exchange of any
Security so selected for redemption, in whole or in part, except the unredeemed portion of any
security being redeemed in part.




     Section 3.03 Notice Of Redemption.



          (a) At least 30 days but not more than 60 days before a Redemption Date, the Company shall
mail or cause to be mailed a notice of redemption to each Holder of Securities to be redeemed at
such Holder’s address as it appears on the Registrar’s books.




          (b) The notice shall identify the Securities (including CUSIP number) to be redeemed and shall
state:





     (1) the Redemption Date;




     (2) the Redemption Price;




     (3) the then effective Conversion Rate;




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




     (5) that Securities called for redemption must be presented and surrendered to
a Paying Agent to collect the Redemption Price;




     (6) that Holders who wish to convert Securities must surrender such Securities
for conversion no later than the close of business on the second Business Day
immediately preceding the Redemption Date and must satisfy the other requirements
set forth in paragraph 9 of the Securities and Article IV;




     (7) that, unless the Company has failed to make the payment of such Redemption
Price which is due and payable, interest will cease to accrue on and after the
Redemption Date;



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     (8) if any Security is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and that, after the Redemption Date, upon
presentation and surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will be
issued; and




     (9) if Certificated Securities have been issued and fewer than all the
outstanding Securities are to be redeemed, the certificate number and the principal
amounts of the particular Securities to be redeemed.



          (c) If any of the Securities to be redeemed are in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the procedures of the
Depositary applicable to redemptions. At the Company’s written request, which request shall (1) be
irrevocable once given and (2) set forth all relevant information required by clauses (1) through
(9) of Section 3.03(b), the Trustee shall give the notice of redemption to each Holder in the
Company’s name and at the Company’s expense; provided, however, that in all cases, the text
of such notice of redemption shall be prepared by the Company; and provided further that the
Company submit to the Trustee such written request, along with an Officers’ Certificate, at least
five Business Days prior to the date by which such notice of redemption must be given to the
Holders in accordance with this Section 3.03 (unless a shorter period should be satisfactory to the
Trustee).




     Section 3.04 Effect Of Notice Of Redemption.



     Once notice of redemption is mailed, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the notice, except for Securities that
are converted on a Conversion Date prior to the Redemption Date in accordance with the provisions
of Article IV. On or after the Redemption Date and upon presentation and surrender to a Paying
Agent, Securities called for redemption shall be paid at the Redemption Price.



     Section 3.05 Deposit Of Redemption Price.



          (a) Prior to 12:00 p.m. (noon), New York City time, on the Redemption Date, the Company shall
deposit with a Paying Agent (or, if the Company acts as Paying Agent, shall segregate and hold in
trust) an amount of money (in immediately available funds if deposited on such Redemption Date)
sufficient to pay the Redemption Price payable upon redemption on all Securities to be redeemed on
that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation or have been converted. The Paying
Agent shall as promptly as practicable return to the Company any money not required for that
purpose because of the cancellation of Securities or the
conversion of Securities pursuant to Article IV or, if such money is then held by the Company
in trust and is not required for such purpose, it shall be discharged from the trust.




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          (b) If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the
Redemption Price of any Security for which a notice of redemption has been tendered and not
withdrawn in accordance with this Indenture then, on the Redemption Date, such Security will cease
to be outstanding, whether or not the Security is delivered to the Paying Agent, and the rights of
the Holder in respect thereof shall terminate (other than the right to receive the Redemption Price
as aforesaid).




     Section 3.06 Securities Redeemed In Part.



     Upon presentation and surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.



     Section 3.07 Conversion Arrangement On Call For Redemption.



     In connection with any redemption of Securities, the Company may arrange for the purchase and
conversion into Common Stock of any Securities called for redemption by an agreement with one or
more investment banks or other purchasers to purchase such Securities by paying to a Paying Agent
(other than the Company or any of its Affiliates) in trust for the Holders, on or before 12:00 p.m.
(noon), New York City time, on the Redemption Date, an amount that, together with any amounts
deposited with such Paying Agent by the Company for the redemption of such securities, is not less
than the Redemption Price. Notwithstanding anything to the contrary contained in this Article III,
the obligation of the Company to pay the Redemption Price of such Securities shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such purchasers; provided,
however, that nothing in this Section 3.07 shall relieve the Company of its obligation to pay
the Redemption Price on Securities called for redemption. If such an agreement with one or more
investment banks or other purchasers is entered into, any Securities called for redemption and not
surrendered for conversion by the Holders thereof prior to the relevant Redemption Date may, at the
option of the Company upon written notice to the Trustee, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article IV) surrendered by such purchasers for conversion, all as of
12:00 p.m. (noon), New York City time, on the Redemption Date, subject to payment of the above
amount as aforesaid. The Paying Agent shall hold and pay to the Holders whose Securities are
selected for redemption any such amount paid to it for purchase in the same manner as it would
money deposited with it by the Company for the
redemption of Securities. Without the Paying Agent’s prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or obligations of the
Paying Agent as set forth in this Indenture, and the Company agrees to indemnify the Paying Agent
from, and hold it harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities between the Company and
such purchasers, including the costs and expenses incurred by the Paying Agent in the defense of



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any claim or liability arising out of or in connection with the exercise or performance of any of
its powers, duties, responsibilities or obligations under this Indenture.




     Section 3.08 Repurchase Of Securities At Option Of The Holder Upon a Fundamental
Change.



          (a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, provided that no Default or Event of Default has
occurred and is continuing (other than a Default in the payment of the Fundamental Change
Repurchase Price), to require the Company to repurchase for cash all or any portion of the
Securities of such Holder equal to $1,000 principal amount (or an integral multiple thereof) at the
Fundamental Change Repurchase Price, on the date that is not less than 30 days nor more than 45
days after the date of the Fundamental Change Company Notice pursuant to subsection 3.08(b) (the
“Fundamental Change Repurchase Date”).




          (b) On or before the 30th day after the occurrence of a Fundamental Change, the Company shall
mail a written notice of the Fundamental Change and of the resulting repurchase right to the
Trustee, Paying Agent and to each Holder (and to beneficial owners to the extent and in the manner
required by applicable law) (the “Fundamental Change Company Notice”). The Fundamental Change
Company Notice shall include the form of a Fundamental Change Repurchase Notice to be completed by
the Holder and shall state:





     (1) the events causing such Fundamental Change;




     (2) the date of such Fundamental Change;




     (3) the last date by which the Fundamental Change Repurchase Notice must be
delivered to elect the repurchase option pursuant to this Section 3.08;




     (4) the Fundamental Change Repurchase Date;




     (5) the Fundamental Change Repurchase Price;




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




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




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




     (9) the procedures that the Holder must follow to exercise rights under Article
IV and that Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted into Common Stock pursuant to Article IV



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of this Indenture
only to the extent that the Fundamental Change Repurchase Notice has been withdrawn
in accordance with the terms of this Indenture;




     (10) the procedures that the Holder must follow to exercise rights under this
Section 3.08;




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




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




     (13) the CUSIP number of the Securities.



     At the Company’s request, the Trustee shall give such Fundamental Change Company Notice in the
Company’s name and at the Company’s expense; provided, that, in all cases, the text of such
Fundamental Change Company Notice shall be prepared by the Company and submitted to the Trustee
along with an Officers’ Certificate and written request within 20 days after the occurrence of a
Fundamental Change. If any of the Securities is in the form of a Global Security, then the Company
shall modify such notice to the extent necessary to accord with the Applicable Procedures relating
to the purchase of Global Securities.



          (c) A Holder may exercise its rights specified in Section 3.08(a) upon delivery of a written
notice (which shall be in substantially the form attached as Exhibit A under the heading
“Fundamental Change Repurchase Notice” and which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Depositary’s
Applicable Procedures) of the exercise of such rights (a “Fundamental Change Repurchase Notice”) to
the Company or any Paying Agent at any time prior to the close of
business on the Business Day next preceding the Fundamental Change Repurchase Date, subject to
extension to comply with applicable law.





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




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




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




     (4) Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section
3.08(c) shall have the right to withdraw such Fundamental Change Repurchase Notice
in whole or in a portion thereof that is a principal amount of $1,000 or in an
integral multiple thereof at any time prior to the close of business on the Business
Day prior to the Fundamental Change Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 3.09.




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




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



     Section 3.09 Effect Of Fundamental Change Repurchase Notice.



          (a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Repurchase
Notice from a Holder, the Holder of the Security in respect of which such Fundamental Change
Repurchase Notice was given shall (unless such Fundamental Change Repurchase Notice is withdrawn as
specified in Section 3.09(b)) thereafter be entitled to receive the Fundamental Change Repurchase
Price with respect to such Security, subject to the occurrence of the Fundamental Change Effective
Date. Such Fundamental Change Repurchase Price shall be paid to such Holder promptly following the
later of (1) the Fundamental Change Repurchase Date (provided that the conditions in Section 3.08
have been satisfied) and (2) the time of delivery of such Security to a Paying Agent by the Holder
thereof in the manner required by Section 3.08(c). Securities in respect of which a Fundamental
Change Repurchase Notice has been given by the Holder thereof may not be converted into shares of
Common Stock pursuant to Article IV on or after the date of the delivery of such Fundamental Change
Repurchase Notice unless such




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Fundamental Change Repurchase Notice has first been validly withdrawn
in accordance with Section 3.09(b) with respect to the Securities to be converted.




          (b) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice
(which may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered electronically or by
other means in accordance with the Applicable Procedures) of withdrawal delivered by the Holder to
a Paying Agent at any time prior to the close of business on the Business Day immediately prior to
the Fundamental Change Repurchase Date, specifying (1) the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted, (2) if
certificated Securities have been issued, the certificate number of the Security being withdrawn in
whole or in withdrawable part (or if the Securities are not certificated, such written notice must
comply with the procedures of the Depositary) and (3) the portion of the principal amount of the
Security that will remain subject to the Fundamental Change Repurchase Notice, which portion must
be a principal amount of $1,000 or an integral multiple thereof.




     Section 3.10 Deposit of Fundamental Change Repurchase Price.



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




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




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




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




     Section 3.11 Repayment To The Company.



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



     Section 3.12 Purchase Of Securities At Option Of The Holder On Specified Dates.



          (a) Securities shall be purchased in cash in whole or in part (which must be equal to $1,000
principal amount or any integral multiple thereof) by the Company, at the option of Holders, in
accordance with the provisions of this Section 3.12 and paragraph 8 of the Securities promptly on
January 15, 2013, January 15, 2016 and January 15, 2021 (each, a “Put
Right Purchase Date”), or the time of the surrender of the Securities, if later, for cash at a
purchase price equal to 100% of the principal amount of the surrendered securities together with
accrued but unpaid interest, if any, to but excluding the applicable Put Right Purchase Date (the
“Put Right Purchase Price”); provided that if the Put Right Purchase Date is also an Interest
Payment Date, then interest on the Securities payable on such Interest Payment Date will instead be
payable to the Holders in whose names the Securities are registered at the close of business on the
applicable Regular Record Date.




          (b) The Company shall give written notice of the applicable Put Right Purchase Date by notice
sent by first-class mail to the Trustee and to each Holder (at its address shown in the register of
the Registrar) and to Beneficial Owners to the extent and in the manner required by applicable law
not less than 20 Business Days prior to each Put Right Purchase Date (the “Company Put Right
Notice”). Each Company Put Right Notice shall include a form of Put Right Purchase Notice to be
completed by a Holder and shall state:





     (1) the Put Right Purchase Price, for the applicable Put Right Purchase Date
and the Conversion Rate then in effect;




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




     (3) that Securities as to which a Put Right Purchase Notice has been given may
be converted, if they are otherwise convertible, only in accordance with Article IV
and paragraph 9 of the Securities and only to the extent that the Put



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Right Purchase Notice has been withdrawn in accordance with the terms of this Indenture;




     (4) that Securities must be surrendered to the Paying Agent as a condition to
collecting payment of the Put Right Purchase Price;




     (5) that the Put Right Purchase Price for any Security as to which a Put Right
Purchase Notice has been given and not withdrawn will be paid promptly following the
later of the Put Right Purchase Date and the time of surrender of such Security as
described in subclause (4) above;




     (6) the procedures the Holder must follow to exercise rights under this Section
3.12 and a brief description of those rights;




     (7) briefly, the conversion rights of the Securities;




     (8) the procedures for withdrawing a Put Right Purchase Notice (including a
summary of the terms of Section 3.12(g));




     (9) that, unless the Company fails to pay such Put Right Purchase Price on
Securities for which a Put Right Purchase Notice has been submitted, such Securities
shall no longer be outstanding and interest on such Securities will cease to accrue
on and after the Put Right Purchase Date; and




     (10) the CUSIP number of the Securities.



          (c) If any of the Securities to be repurchased are in the form of a Global Security, the
Company shall modify such notice to the extent necessary to accord with the Applicable Procedures
relating to repurchases.




          (d) At the Company’s request, the Trustee shall give such Company Put Right Notice on behalf
of the Company and at the Company’s expense; provided, however, that, in all cases, the
text of such Company Put Right Notice shall be prepared by the Company; provided further that the
Company shall make such request and deliver the text of such Company Put Right Notice at least five
Business Days prior to the date by which such Company Put Right Notice must be given in accordance
with this Section 3.12 (unless a shorter period shall be satisfactory to the Trustee).




          (e) To exercise its rights pursuant to this Section 3.12, the Holder shall deliver to the
Paying Agent a properly completed put right purchase notice (each, a “Put Right Purchase Notice”)
at any time from the opening of business on the date that is 20 Business Days prior to the
applicable Put Right Purchase Date until the close of business on the Business Day immediately
preceding the Put Right Purchase Date stating:




-31-









 









     (1) if certificated Securities have been issued, the certificate number of the
Security that the Holder will deliver for repurchase (or if the Securities are not
certificated, the Put Right Purchase Notice must comply with the Applicable
Procedures relating to purchases),




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




     (3) that such Security shall be purchased as of the applicable Put Right
Purchase Date pursuant to the terms and conditions in this Section 3.12 and the
Securities.



          (f) The Company shall pay the Put Right Purchase Price for all Securities with respect to
which a Put Right Purchase Notice is given and not validly withdrawn, promptly following the later
of the applicable Put Right Purchase Date and delivery of such Securities to the Paying Agent
(together with all necessary endorsements) at the offices of the Paying Agent (if the
Securities are not certificated, such delivery must comply with the Applicable Procedures
relating to purchases). Delivery of such Security shall be a condition to receipt by the Holder of
the Put Right Purchase Price therefor. The Put Right Purchase Price shall be paid pursuant to this
Section 3.12 only if the Security delivered to the Paying Agent conforms in all respects to the
description thereof in the related Put Right Purchase Notice, as determined by the Company.




          (g) Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent
the Put Right Purchase Notice contemplated by this Section 3.12 shall have the right to withdraw
such Put Right Purchase Notice in whole or in part at any time prior to the close of business on
the Business Day immediately preceding the applicable Put Right Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent specifying:





     (1) the aggregate principal amount of the Security (which must be equal to
$1,000 or any integral multiple thereof) with respect to which such notice of
withdrawal is being submitted,




     (2) the certificate number, if any, of the Security in respect of which such
notice of withdrawal is being submitted (or, if the Securities are not certificated,
the withdrawal notice must comply with the Applicable Procedures relating to
withdrawals), and




     (3) the aggregate principal amount, if any, of such Security which remains
subject to the original Put Right Purchase Notice and which has been or will be
delivered for purchase by the Company.



          (h) The Paying Agent shall promptly notify the Company of the receipt by it of any Put Right
Purchase Notice or written notice of withdrawal thereof.




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





     (1) If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Put Right Purchase Price of any Security for which a Put Right
Notice has been tendered and not withdrawn, then, on the Business Day after the Put
Right Purchase Date, such Security will cease to be outstanding, and interest shall
cease to accrue, whether or not the Security is delivered to the Paying Agent,
and the rights of the Holder in respect of the Security shall terminate (other
than the right to receive the Put Right Purchase Price as aforesaid).




     (2) The Put Right Purchase Price shall be paid to such Holder with respect to
Securities for which a Put Right Purchase Notice has been tendered and not validly
withdrawn, subject to receipt of funds by the Paying Agent, promptly after the later
of (A) the applicable Put Right Purchase Date with respect to such Security
(provided that the conditions in Section 3.12(f) have been satisfied) and (B) the
time of delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 3.12(f). Securities in respect of which a Put Right
Purchase Notice has been given by the Holder thereof, if convertible pursuant to
Article IV, may not be converted on or after the date of the delivery of such Put
Right Purchase Notice, unless such Put Right Purchase Notice has first been validly
withdrawn as specified in Section 3.12(g).




     (3) To the extent that the aggregate amount of cash deposited by the Company
pursuant to this Section 3.12(i) exceeds the aggregate Put Right Purchase Price of
the Securities or portions thereof that the Company is obligated to purchase, then
promptly after the Put Right Purchase Date the Trustee or a Paying Agent, as the
case may be, shall return any such excess cash to the Company, or if such money is
then held by the Company in trust, it shall be discharged from the trust.



          (j) The Company shall only be obligated to purchase, pursuant to this Section 3.12, a portion
of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.




     Section 3.13 Securities Purchased In Part.



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



     Section 3.14 Compliance With Securities Laws Upon Purchase of Securities.



     In connection with any offer to purchase of Securities under Section 3.08 or Section 3.12, the
Company shall (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor to either such Rule) and
any other tender offer rules, if applicable, under the Exchange Act, (b) file the related Schedule
TO (or any successor or similar schedule, form or report) if required under the Exchange Act, and
(c) otherwise comply with all federal and state securities laws in connection with such offer to
purchase or purchase of Securities, all so as to permit the rights of the Holders and obligations
of the Company under Sections 3.08 through 3.12 to be exercised in the time and in the manner
specified therein. To the extent that compliance with any such laws, rules and regulations would
result in a conflict with any of the terms hereof, this Indenture is hereby modified to the extent
required for the Company to comply with such laws, rules and regulations.



     Section 3.15 Purchase Of Securities In Open Market.



     The Company (a) shall, on or prior to the date that is two years from the latest issuance of
any Securities and in accordance with Section 2.11 surrender any Security purchased by the Company
pursuant to this Article III to the Trustee for cancellation, and (b) after such date, may
surrender such Security to the Trustee for cancellation as aforesaid. Any securities surrendered
to the Trustee for cancellation may not be reissued or resold by the Company and will be canceled
promptly in accordance with Section 2.11. The Company may repurchase Securities in open market and
negotiated transactions.



ARTICLE IV




CONVERSION




     Section 4.01 Conversion Privilege And Conversion Rate.



          (a) Subject to the obligation and the right of the Company to pay some or all of the
conversion consideration in cash in accordance with Section 4.14, and upon compliance with the
provisions of this Article IV, at the option of the Holder thereof, any Security or portion thereof
that is an integral multiple of $1,000 principal amount may be converted into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common
Stock prior to the close of business on the Business Day immediately preceding the

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Final Maturity Date or such earlier date set forth in this Article IV, unless previously redeemed by the Company
or purchased by the Company at the Holder’s option, at the Conversion Rate in
effect at such time, determined as hereinafter provided and subject to the adjustments
described below, only under the following circumstances:





     (1) during any calendar quarter beginning after March 31, 2006, and only during
such calendar quarter, if, as of the last day of the immediately preceding calendar
quarter, the Closing Price per share of the Common Stock for at least 20 Trading
Days in the period of the 30 consecutive Trading Days ending on the last Trading Day
of such preceding calendar quarter was more than 120% of the Conversion Price on the
last day of such preceding calendar quarter (the “Conversion Trigger Price”);




     (2) until the close of business on the second Business Day immediately
preceding the Redemption Date if the Company elects to redeem the relevant Security
pursuant to Article III;




     (3) if the Company distributes to all holders of Common Stock rights (including
rights or rights certificates under a shareholder rights agreement) or warrants
entitling them to purchase, for a period expiring within 45 days of the date of
issuance (or in the case of rights certificates issued under a shareholder rights
agreement, within 45 days of the later of the date of issuance and any scheduled
redemption date or similar date under such rights agreement), Common Stock at less
than the Closing Price per share of the Common Stock on the day of issuance;




     (4) if the Company distributes to all holders of Common Stock, assets, debt
securities or rights to purchase the Company’s securities, which distribution has a
per share value exceeding 7.5% of the Closing Price per share of the Common Stock on
the Business Day preceding the declaration date for such distribution;




     (5) [Intentionally Omitted]




     (6) if a Fundamental Change occurs;




     (7) at any time during the period beginning on July 15, 2025 and ending at the
close of business on the Business Day immediately preceding the Final Maturity Date;
or




     (8) during any five Business Day period after any five consecutive Trading Day
period in which the Trading Price per $1,000 principal amount of Securities, as
determined following a request by a Holder in accordance with the procedures
described below in Section 4.01(e)(ii), for each day of that period was



-35-









 







less than 98% of the product of the Closing Price of the Common Stock and the
Conversion Rate per $1,000 principal amount of Securities.



          (b) In the case of a distribution contemplated by clauses (3) and (4) of Section 4.01(a), the
Company shall notify Holders at least 20 days prior to the ex-dividend date for such distribution
(the “Distribution Notice”); provided that if the Company distributes rights pursuant to a
shareholder rights agreement, it will notify the Holders of the Securities on the Business Day
after the Company is required to give notice generally to its shareholders pursuant to such
shareholder rights agreement if such date is less than 20 days prior to the date of such
distribution. Once the Company has given the Distribution Notice, Holders may surrender their
Securities for conversion at any time until the earlier of the close of business on the last
Business Day preceding the ex-dividend date or the Company’s announcement that such distribution
will not take place. In the event of a distribution contemplated by clauses (3) and (4) of Section
4.01(a), Holders may not convert the Securities if the Holders will otherwise participate in such
distribution without converting their Securities. The Company will provide written notice to the
Conversion Agent as soon as reasonably practicable of any anticipated or actual event or
transaction that will cause or causes the Securities to become convertible pursuant to clauses (3)
or (4) of Section 4.01(a).




          (c) [Intentionally Omitted]




          (d) In the case of a transaction contemplated by clause (6) of Section 4.01(a), the Company
will notify the Holders and Trustee at least 10 Trading Days prior to the anticipated Fundamental
Change Effective Date of any Fundamental Change or the anticipated effective date of an event that
would have been a Change of Control but for the 105% Trading Price Exception that the Company knows
or reasonably should know will occur. If the Company does not know, and should not reasonably
know, that a Fundamental Change or such other event will occur until a date that is within 10
Trading Days before the anticipated Fundamental Change Effective Date or effective date of such
other event, the Company will notify the Holders and the Trustee promptly after the Company has
knowledge of such Fundamental Change or such other event. Holders may surrender Securities for
conversion at any time beginning 10 Trading Days before the anticipated Fundamental Change
Effective Date of a Fundamental Change or the anticipated effective date of an event that would
have been a Change of Control but for the 105% Trading Price Exception and until the last Trading
Day preceding the Fundamental Change Repurchase Date.




          (e) (i) For each calendar quarter of the Company, beginning with the calendar quarter ending
March 31, 2006, the Conversion Agent, on behalf of the Company, will determine, on the first
Business Day following the last Trading Day of such calendar quarter, whether the Securities are
convertible pursuant to clause (1) of Section 4.01(a), and, if so, will notify the Trustee and the
Company in writing.




               (ii) The Trustee shall have no obligation to determine the Trading Price of the Securities and
whether the Securities are convertible pursuant to clause (8) of Section 4.01(a) unless the Company
has requested such determination; and the Company shall



-36-









 




have no obligation to make such request
unless a Holder of the Securities provides the Company with reasonable evidence that the Trading
Price per $1,000 principal amount of Securities would be less than 98% of the product of the
Closing Price of the Common Stock and the Conversion Rate per $1,000 principal amount of
Securities. At such time, the Company shall instruct the Trustee to determine the Trading Price of
the Securities beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of the Securities is greater than 98% of the product of
the Closing Price of the Common Stock and the Conversion Rate per $1,000 principal amount of the
Securities.




          (f) The conversion rights pursuant to this Article IV shall commence on the initial issuance
date of the Securities and expire at the close of business on the Business Day immediately
preceding the Final Maturity Date, but shall be exercisable only during the time periods specified
with respect to each circumstance pursuant to which the Securities become convertible, subject, in
the case of conversion of any Global Security, to any Applicable Procedures. If a Security is
called for redemption or submitted or presented for purchase pursuant to Article III, such
conversion right shall terminate at the close of business on the second Business Day immediately
preceding the Redemption Date and on the Business Day immediately preceding the Put Right Purchase
Date or Fundamental Change Repurchase Date for such Security (unless the Company shall fail to make
the Redemption Price, Put Right Purchase Price, or Fundamental Change Repurchase Price payment when
due in accordance with Article III, in which case the conversion right shall terminate at the close
of business on the date such failure is cured and such Security is redeemed or purchased, as the
case may be). If a Security is convertible as a result of a Fundamental Change, such conversion
right shall commence and terminate as set forth in Section 4.01(d). Securities in respect of which
a Fundamental Change Repurchase Notice or a Put Right Purchase Notice, as the case may be, has been
delivered may not be surrendered for conversion pursuant to this Article IV prior to a valid
withdrawal of such Fundamental Change Repurchase Notice or Put Right Purchase Notice, as the case
may be, in accordance with the provisions of Article III.




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




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




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




          (j) If prior to January 21, 2011, there shall have occurred a Fundamental Change (or an event
that would have been a Change of Control but for the existence of the 105% Trading Price
Exception), the Company shall pay a “Make Whole Premium” to the Holders of the Securities who
convert their Securities during the period beginning 10 Trading Days before the




-37-









 







anticipated Fundamental Change Effective Date and ending at the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date by increasing the Conversion Rate for
such Securities. The number of additional shares of Common Stock per $1,000 principal amount of
Securities constituting the Make Whole Premium shall be determined by the Company by reference to
the table below, based on the Fundamental Change Effective Date and the Stock Price of such
Fundamental Change; provided that if the Stock Price or Fundamental Change Effective Date are not
set forth on the table: (i) if the actual Stock Price on the Fundamental Change Effective Date is
between two Stock Prices on the table or the actual Fundamental Change Effective Date is between
two Fundamental Change Effective Dates on the table, the Make Whole Premium will be determined by a
straight-line interpolation between the Make Whole Premiums set forth for the two Stock Prices and
the two Fundamental Change Effective Dates on the table based on a 365-day year, as applicable,
(ii) if the Stock Price on the Fundamental Change Effective Date
exceeds $75.00 per share, subject
to adjustment as set forth herein, no Make Whole Premium will be paid, and (iii) if the Stock Price
on the Fundamental Change Effective Date is less than $28.02 per share, subject to adjustment as
set forth herein, no Make Whole Premium will be paid. If Holders of the Common Stock receive only
cash in the Fundamental Change, the Stock Price shall be the cash amount paid per share of the
Common Stock in connection with the Fundamental Change. Otherwise, the Stock Price shall be equal
to the average Closing Prices of the Common Stock for each of the 10 Trading Days immediately
preceding, but not including, the applicable Fundamental Change Effective Date.




     Make Whole Premium Upon a Fundamental Change Effective Date (Number of Additional Shares)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stock Price	 	Fundamental Change Effective Date
	on Fundamental	 	January 25,	 	January 15,	 	January 15,	 	January 15,	 	January 15,	 	January 21,
	Change Effective Date	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011
	$   28.02
	 	 	8.23	 	 	 	8.23	 	 	 	8.23	 	 	 	8.23	 	 	 	8.23	 	 	 	8.23	 
	 
	32.00
	 	 	6.52	 	 	 	6.04	 	 	 	5.48	 	 	 	4.78	 	 	 	3.87	 	 	 	3.80	 
	36.00
	 	 	5.34	 	 	 	4.82	 	 	 	4.23	 	 	 	3.47	 	 	 	2.46	 	 	 	0.32	 
	40.00
	 	 	4.48	 	 	 	4.02	 	 	 	3.45	 	 	 	2.63	 	 	 	1.64	 	 	 	0.00	 
	45.00
	 	 	3.71	 	 	 	3.22	 	 	 	2.66	 	 	 	1.96	 	 	 	1.08	 	 	 	0.00	 
	50.00
	 	 	3.16	 	 	 	2.70	 	 	 	2.19	 	 	 	1.55	 	 	 	0.79	 	 	 	0.00	 
	55.00
	 	 	2.76	 	 	 	2.33	 	 	 	1.85	 	 	 	1.28	 	 	 	0.63	 	 	 	0.00	 
	60.00
	 	 	2.44	 	 	 	2.04	 	 	 	1.62	 	 	 	1.10	 	 	 	0.54	 	 	 	0.00	 
	65.00
	 	 	2.20	 	 	 	1.83	 	 	 	1.44	 	 	 	0.97	 	 	 	0.48	 	 	 	0.00	 
	70.00
	 	 	2.00	 	 	 	1.66	 	 	 	1.30	 	 	 	0.88	 	 	 	0.44	 	 	 	0.00	 
	75.00
	 	 	1.84	 	 	 	1.52	 	 	 	1.19	 	 	 	0.81	 	 	 	0.41	 	 	 	0.00	 






     The Stock Prices set forth in the first column of the table above will be adjusted as of
any date on which the Conversion Rate of the Securities is adjusted. The adjusted Stock Prices
will equal the Stock Prices applicable immediately prior to such adjustment multiplied by a
fraction,



-38-









 




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




     Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed 35.6887 per $1,000 principal amount, subject to
proportional adjustment in the same manner as the Conversion Rate as set forth in clauses (1)
through (4) of Section 4.06(a) hereof.



     The additional shares of Common Stock, if any, or cash delivered to satisfy the Company’s
obligations to Holders that convert their Securities in connection with a Fundamental Change or an
event that would have been a Change of Control but for the existence of the 105% Trading Price
Exception will be delivered upon the later of the settlement date for the conversion and promptly
following the Fundamental Change Effective Date or the effective date of such other event.



          (k) By delivering the amount of cash and/or the number of shares of Common Stock issuable on
conversion to the Trustee, the Company will be deemed to have satisfied its obligation to pay the
principal amount of the Securities so converted and its obligation to pay accrued and unpaid
interest attributable to the period from the most recent Interest Payment Date through the
Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or
forfeited).




          (l) Notwithstanding anything else contained herein, the Securities shall not become subject to
conversion by reason of a merger, consolidation, or other transaction effected with one of the
Company’s direct or indirect Subsidiaries for the purpose of changing the Company’s state of
incorporation to any other state within the United States or the District of Columbia.




     Section 4.02 Conversion Procedure.



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




-39-









 







Global Securities, conversion notices may be delivered and such Securities may be surrendered for conversion in
accordance with the Applicable Procedures as in effect from time to time.




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




          (c) Holders of Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (excluding Securities or portions thereof called for redemption)
will receive the semi-annual interest payable on such Securities on the corresponding Interest
Payment Date notwithstanding the conversion. Upon surrender of any such Securities for conversion,
unless such Securities are being converted solely pursuant to Section 4.01(a)(2), such Securities
shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the
interest payable on such corresponding Interest Payment Date. Except as otherwise provided in this
Section 4.02(c), no payment or adjustment will be made for accrued interest on a converted
Security.




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




          (e) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an




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aggregate principal amount equal to, and in exchange for, the unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount of such part is an
integral multiple of $1,000 and the principal amount of such Security to remain outstanding after
such conversion is equal to $1,000 or any integral multiple of $1,000 in excess thereof.




          (f) Upon the Company’s determination that a Holder is or will be entitled to convert their
Securities into shares of Common Stock pursuant to this Article IV, the Company will promptly after
making such determination issue a press release and use its reasonable efforts to post such
information on the Company’s website or otherwise publicly disclose such information.




     Section 4.03 Fractional Shares.



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



     Section 4.04 Taxes On Conversion.



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



     Section 4.05 Company To Provide Stock.



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




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




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




          (d) [Intentionally Omitted]




     Section 4.06 Adjustment Of Conversion Rate.



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





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




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



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Common Stock occurs and shall
become effective immediately after the date upon which such subdivision or
combination becomes effective.




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



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any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.




     (4) If the Company shall make a dividend or other distribution to all holders
of its Common Stock of Capital Stock, other than Common Stock, or evidences of
indebtedness or other assets of the Company (excluding (x) any issuance of rights or
warrants for which an adjustment was made pursuant to Section 4.06(a)(3), (y)
dividends or distributions in connection with a reclassification, change,
consolidation, merger, combination, liquidation, dissolution, winding up, sale or
conveyance resulting in a change in the conversion consideration, or pursuant to any
shareholder rights plan or (z) any dividend or distribution paid exclusively in cash
for which an adjustment was made pursuant to Section 4.06(a)(6)) (the “Distributed
Securities”), then in each such case (unless the Company distributes such
Distributed Securities for distribution to the Holders of Securities on such
dividend or distribution date as if each Holder had converted such Security into
Common Stock immediately prior to the record date with respect
to such distribution) the Conversion Rate in effect immediately prior to the
record date fixed for the determination of shareholders entitled to receive such
dividend or distribution shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to such
record date by a fraction of which the numerator shall be the Current Market Price
per share of the Common Stock on such record date and of which the denominator shall
be Current Market Price per share on such record date less the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and which shall be evidenced by an
Officers’ Certificate delivered to the Trustee) on such record date of the portion
of the Distributed Securities so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding at the
close of business on such record date). Such adjustment shall be made successively
whenever any such distribution is made and shall become effective immediately after
the record date for the determination of shareholders entitled to receive such
distribution. In the event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.




     If the fair market value (as so determined) of the portion of the Distributed
Securities so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price per share of the Common Stock on such record
date, in lieu of the foregoing adjustment, adequate provision shall be made so that
each holder of a Security shall have the right to receive upon conversion the amount
of Distributed Securities so distributed that such Holder would have received had
such Holder converted each Security on such record date. If the



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Board of Directors
determines the fair market value of any distribution for purposes of this Section
4.06(a)(4) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price of the Common Stock.




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




     (5) With respect to any rights, rights certificates or warrants (the “Rights”)
that may be issued or distributed pursuant to any rights plan (including any rights
plan that the Company implements after the date of this Indenture, a “Rights Plan”),
in lieu of any adjustment required by any other provision of this Section 4.06, upon
conversion of the Securities into Common Stock, to the extent that such Rights Plan
is in effect upon such conversion, the Holders of Securities will receive, with
respect to the shares of Common Stock issued upon conversion, the Rights described
therein (whether or not the Rights have separated from the Common Stock at the time
of conversion), subject to the limitations set forth in and in accordance with any
such Rights Plan; provided that if, at the time of conversion, however, the Rights
have separated from the shares of Common Stock in accordance with the provisions of
the Rights Plan so that Holders would not be entitled to receive any rights in
respect of the shares of Common Stock issuable



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upon conversion of the Securities as
a result of the timing of the Conversion Date, the Conversion Rate will be adjusted
as if the Company distributed to all holders of Common Stock Distributed Securities
as provided in the first paragraph of clause (4) of this Section 4.06(a), subject to
appropriate readjustment in the event of the expiration, termination, repurchase or
redemption of the Rights. Any distribution of rights, rights certificates or
warrants pursuant to a Rights Plan complying with the requirements set forth in the
immediately preceding sentence of this paragraph shall not constitute a distribution
of rights, rights certificates or warrants pursuant to this Section 4.06(a). Other
than as specified in this clause (5) of this Section 4.06(a), there will not be any
adjustment to the Conversion Rate as the result of the issuance of any Rights, the
distribution of separate certificates
representing such Rights, the exercise or redemption of such Rights in
accordance with any Rights Plan or the termination or invalidation of any Rights.




     (6) If the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering Distribution”) to all holders of its Common Stock a payment consisting
exclusively of cash (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary) the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying such Conversion Rate in effect immediately prior to
the close of business on the record date for such Triggering Distribution (a
“Determination Date”) by a fraction of which the numerator shall be such Current
Market Price per share of the Common Stock on the Determination Date and the
denominator of which shall be the Current Market Price per share of the Common Stock
on the Determination Date less the amount of such cash dividend or distribution
applicable to one share of Common Stock (determined on the basis of the number of
 shares of Common Stock outstanding at the close of business on the Determination
Date), such increase to become effective immediately prior to the opening of
business on the day following the date on which the Triggering Distribution is paid.
If the amount of cash dividend or distribution applicable to one share of Common
Stock is equal to or greater than the Current Market Price per share of the Common
Stock on the Determination Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder of a Security shall have the right to
receive upon conversion the amount of cash so distributed that such Holder would
have received had such Holder converted each Security on such Determination Date.
In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be
in effect if such divided or distribution had not been declared.




     (7) If any tender offer made by the Company or any of its Subsidiaries for all
or any portion of Common Stock shall expire, then, if the tender offer shall require
the payment to shareholders of consideration per share of Common Stock



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




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




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



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




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




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




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




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



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to be adjusted as a result of such other event. For purposes of this
Section 4.09(a) the term “ex” date, when used:




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




          (B) with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on
such exchange or in such market after the time at which such subdivision or
combination becomes effective, and




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




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



          (b) In any case in which this Section 4.06 shall require that an adjustment be made following
a record date, a Determination Date or Expiration Date, as the case may be, established for the
purposes specified in this Section 4.06, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the certificate described in
Section 4.09) issuing to the Holder of any Security converted after such record date, Determination
Date or Expiration Date the shares of Common Stock and other Capital Stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other Capital Stock of the
Company (or other cash, property or securities, as applicable) issuable upon such conversion only
on the basis of the Conversion Rate prior to adjustment; and, in lieu of any cash, property or
securities the issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company of the right to
receive such cash, property or securities. If any distribution in respect of which an adjustment
to the Conversion Rate is required to be made as of the record date, Determination Date or
Expiration Date therefore is not thereafter made or paid by the Company for any reason, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be in effect if such
record date had not been fixed or such record date, Determination Date or Expiration Date had not
occurred.




          (c) For purposes of this Section 4.06, “record date” shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock have the right to
receive any cash, securities or other property or in which the Common Stock (or

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other applicable security) is exchanged or converted into any combination of cash, securities or other property, the
date fixed for determination of shareholders entitled to receive such cash, security or other
property (whether or not such date is fixed by the Board of Directors or by statute, contract or
otherwise).




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




          (e) [Intentionally Omitted]




     Section 4.07 No Adjustment.



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




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




          (c) No adjustment in the Conversion Rate shall be required for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a change in the par
value or a change to no par value of the Common Stock.




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




     Section 4.08 [Intentionally Omitted]



     Section 4.09 Notice of Adjustment.



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



-50-









 




the Conversion Rate has not been adjusted and that the last Conversion Rate of which it has
knowledge remains in effect.




     Section 4.10 Notice of Certain Transactions.



     In the event that there is a dissolution or liquidation of the Company, the Company shall mail
to Holders and file with the Trustee a notice stating the proposed effective date. The Company
shall mail such notice at least 10 days before such proposed effective date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction referred to in this
Section 4.10.



     Section 4.11 Effect of Recapitalization, Reclassification, Consolidation, Merger or
Sale. If any of following events occur (each, a “Business Combination”):




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




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




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




     (4) any statutory share exchange,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that the Holders of the Securities then outstanding will be
entitled thereafter to convert such Securities into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) which they would
have owned or been entitled to receive upon such Business Combination had such Securities been
converted into Common Stock immediately prior to such Business Combination, except that such
Holders will not receive the Make Whole Premium if such Holder does not convert its Securities “in
connection with” the relevant Fundamental Change. A conversion of the Securities by a Holder will
be deemed for these purposes to be “in connection with” a Fundamental Change if the notice of such
conversion is provided in compliance with Section 4.02(a) to the Conversion Agent on or subsequent to the date 10 Trading
Days prior to the date announced by the Company as the anticipated Fundamental Change Effective
Date but before the close of business on the Business Day immediately preceding the related
Fundamental Change Repurchase Date. In the event holders of Common Stock have the opportunity to
elect the form of consideration to be received in such Business Combination, the




-51-









 







Company shall make adequate provision whereby the Holders of the Securities shall have a reasonable opportunity to
determine the form of consideration into which all of the Securities, treated as a single class,
shall be convertible from and after the effective date of such Business Combination. Such
determination shall be (i) based on the weighted average of elections made by Holders of the
Securities who participate in such determination, (ii) subject to any limitations to which all of
the holders of the Common Stock are subject, such as pro-rata reductions applicable to any portion
of the consideration payable in such Business Combination and (iii) conducted in such a manner as
to be completed by the date which is the earliest of (a) the deadline for elections to be made by
shareholders of the Company, and (b) two Trading Days prior to the anticipated effective date of
the Business Combination. The Company shall provide notice of the opportunity to determine the
form of such consideration, as well as notice of the determination made by Holders of the
Securities (and the weighted average of elections), by posting such notice with DTC and providing a
copy of such notice to the Trustee. In the event the effective date of the Business Combination is
delayed beyond the initially anticipated effective date, Holders of the Securities shall be given
the opportunity to make subsequent similar determinations in regard to such delayed effective date.
The Company may not become a party to any such transaction unless its terms are consistent with
this Section 4.11. 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 IV. If, in
the case of any such Business Combination, the stock or other securities and assets receivable
thereupon by a holder of shares of Common Stock includes shares of stock or other securities and
assets of a corporation other than the successor or purchasing corporation, as the case may be, in
such Business Combination, then such supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to protect the interests of the Holders of
the Securities as the Board of Directors shall reasonably consider necessary by reason of the
foregoing, including to the extent practicable the provisions providing for the Repurchase Rights
set forth in Article III hereof. Notwithstanding anything contained in this Section, and for the
avoidance of doubt, this Section shall not affect the right of a Holder to convert its Securities
into shares of Common Stock prior to the effective date of the Business Combination.




     Section 4.12 Trustee’s Disclaimer.



          (a) The Trustee shall have no duty to determine when an adjustment under this Article IV
should be made, how it should be made or what such adjustment should be, but may accept as
conclusive evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers’ Certificate and Opinion of Counsel, including the
Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 4.09. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible
for the Company’s failure to comply with any provisions of this Article IV.




          (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to




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Section 4.11, but may accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officers’ Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 12.04.




     Section 4.13 Voluntary Increase.



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



     Notwithstanding the foregoing paragraph, in no event will the total number of shares of Common
Stock issuable upon conversion of a Security exceed 35.6887 per $1,000 principal amount, subject to
proportional adjustment in the same manner as the Conversion Rate as set forth in clauses (1)
through (4) of Section 4.06(a) hereof.



     Section 4.14 Payment of Cash in Lieu of Common Stock.



          (a) In lieu of delivery of some or all of the shares of Common Stock otherwise issuable upon
notice of conversion of any Securities, Holders surrendering Securities for conversion shall
receive for each $1,000 principal amount of Securities surrendered for conversion: (A) cash in an
amount equal to the lesser of (1) $1,000 and (2) the Conversion Value; and (B) if the Conversion
Value is greater than $1,000, a number of shares of the Common Stock equal to the sum of the Daily
Share Amounts for each of the ten consecutive Trading Days in the Conversion Reference Period
(appropriately adjusted to reflect stock splits, stock dividends, combinations or similar events
occurring during the Conversion Reference Period) , subject to the Company’s right to deliver cash
in lieu of all or a portion of such shares as set forth in
Section 4.14(b). The Company will deliver such cash and any shares of Common Stock, together
with any cash payable for fractional shares, to such Holder in accordance with Section 4.02(a).




          (b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Common Stock otherwise issuable pursuant to Section 4.14(a). In
such event, on any day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company will specify a percentage of the Daily Share Amount that will be settled in
cash (the “Cash Percentage”) and the amount of cash that the Company will pay in respect of each
Trading Day in the applicable Conversion Reference Period will equal the product of: (1) the Cash
Percentage, (2) the Daily Share Amount for such Trading Day and (3) the Volume Weighted Average
Price of the Common Stock for such Trading Day (provided that after the consummation of a
Fundamental Change in which the consideration is comprised entirely of cash, the amount used in
this clause (3) will be the cash price per share received by holders of the Common Stock in such
Fundamental Change). The number of shares




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that the Company shall deliver in respect of each
Trading Day in the applicable Conversion Reference Period will be a percentage of the Daily Share
Amount equal to 100% minus the Cash Percentage. Upon making a determination that a percentage of
the Daily Share Amount will be settled in cash, the Company shall promptly issue a press release
and disclose such information on its website prior to the first Trading Day of the applicable
Conversion Reference Period. If the Company does not specify a Cash Percentage by the start 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 shall pay cash in lieu of fractional shares
otherwise issuable upon conversion of Securities.




          (c) For the purposes of Sections 4.14(a) and (b), in the event that any of Conversion Value,
Daily Share Amounts or Volume Weighted Average Price is not calculable for all portions of the
Conversion Reference Period, the Company’s Board of Directors shall in good faith determine the
values necessary to calculate the Conversion Value, Daily Share Amounts and Volume Weighted Average
Price, as applicable.




ARTICLE V




COVENANTS




     Section 5.01 Payment Of Securities.



          (a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the Securities and this Indenture. A payment of principal or interest
shall be considered paid on the date it is due if the Paying Agent (other than
the Company) holds by 12:00 p.m. (noon), New York City time, on that date money, deposited by
or on behalf of the Company sufficient to make the payment; provided, however, that
money held by the Paying Agent for the benefit of holders of Senior Debt pursuant to the provisions
of Article XI or the payment of which to the holders of the Securities is prohibited by Article XI
shall not be considered to be designated for the payment of any principal of or interest on the
Securities within the meaning of this Section 5.01. Subject to Section 4.02, accrued and unpaid
interest on any Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security is registered at the
close of business on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose. Principal, Redemption Price, Put Right Purchase Price,
Fundamental Change Repurchase Price, and interest, in each case if payable, shall be considered
paid on the applicable date due if on such date (or, in the case of Put Right Purchase Price or
Fundamental Change Repurchase Price, on the Business Day following the applicable Put Right
Purchase Date or Fundamental Change Repurchase Date, as the case may be) the Trustee or the Paying
Agent holds, in accordance with this Indenture, money sufficient to pay all such amounts then due.




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          (b) Payment of the principal of and interest, if any, on the Securities shall be made at the
office or agency of the Company maintained for that purpose in Chicago, Illinois (which shall
initially be at the address set forth in Section 2.03(c)) or at the Corporate Trust Office of the
Trustee in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Register; provided further that a Holder with an
aggregate principal amount in excess of $2,000,000 will be paid by wire transfer in immediately
available funds at the election of such Holder if such Holder has provided wire transfer
instructions to the Trustee at least 10 Business Days prior to the payment date. Any wire transfer
instructions received by the Trustee will remain in effect until revoked by the Holder.




     Section 5.02 SEC and Other Reports.



          (a) The Company shall file all reports and other information and documents which it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, and within 15
days after it files them with the SEC, the Company shall file copies of all such reports,
information and other documents with the Trustee; provided that any such reports, information and
documents filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval (or
EDGAR) system shall be deemed to be filed with the Trustee. The Company also shall comply with the
provisions of TIA Section 314(a).




          (b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).




     Section 5.03 Compliance Certificates.



     The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending September 24, 2006), an Officers’ Certificate as
to the signer’s knowledge of the Company’s compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signer knows of any Default or Event of
Default. If such signer knows of such a Default or Event of Default, the Officers’ Certificate
shall describe the Default or Event of Default and the efforts to remedy the same. For the
purposes of this Section 5.03, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.



     Section 5.04 Further Instruments And Acts.



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



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     Section 5.05 Maintenance Of Corporate Existence.



     Subject to Article VI, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.



     Section 5.06 [Intentionally Omitted]



     Section 5.07 Stay, Extension And Usury Laws.



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



     Section 5.08 [Intentionally Omitted]



     Section 5.09 Maintenance of Office or Agency.



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



     The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency.



ARTICLE VI




CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE




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     Section 6.01 Company May Consolidate, Etc. , Only On Certain Terms.



     The Company may not consolidate with or merge into any Person or convey, transfer or lease the
property and assets, substantially as an entirety, of the Company to another Person, other than to
one or more of the Company’s wholly-owned subsidiaries, unless:




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




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




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



     Section 6.02 Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease substantially as an entirety, of the properties and assets of the
Company and its Subsidiaries, taken as a whole, in accordance with Section 6.01, the successor
Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, and except for obligations the predecessor Person may have under a supplemental




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indenture,
the predecessor Person shall be relieved of all obligations and covenants under this Indenture and
the Securities.




ARTICLE VII




DEFAULT AND REMEDIES




     Section 7.01 Events Of Default.



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





     (1) the Company shall fail to pay when due (whether or not such payment is
prohibited by the subordination provisions set forth in Article XI of this
Indenture) the Principal or any Redemption Price, Put Right Purchase Price or
Fundamental Change Repurchase Price of any Security, when the same becomes due and
payable whether at the Final Maturity Date, upon redemption, repurchase,
acceleration or otherwise; or




     (2) the Company shall fail to pay (whether or not such payment is prohibited by
the subordination provisions set forth in Article XI of this Indenture) an
installment of cash interest on any of the Securities, which failure continues for
30 days after the date when due; or




     (3) the Company shall fail to deliver when due all cash and shares of Common
Stock, if any, deliverable upon conversion of the Securities (whether or not such
payment is prohibited by the subordination provisions set forth in Article XI of
this Indenture), which failure continues for 15 days; or




     (4) the Company shall fail to perform or observe (or obtain a waiver with
respect to) any other term, covenant or agreement contained in the Securities or
this Indenture for a period of 60 days after receipt by the Company of a Notice of
Default specifying such failure; or




     (5) default in the payment of principal by the end of any applicable grace
period or resulting in acceleration of other Indebtedness of the Company for
borrowed money where the aggregate principal amount with respect to which the
default or acceleration has occurred exceeds $25 million and such acceleration has
not been rescinded or annulled or such Indebtedness repaid within a period of
30 days after receipt of a Notice of Default, provided that if any such default is
cured, waived, rescinded or annulled, then the Event of Default by reason thereof
would be deemed not to have occurred; or




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



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




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




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




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




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




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




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




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




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




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




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



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



          (b) Notwithstanding Section 7.01(a), no Event of Default under clauses (4) or (5) of Section
7.01(a) shall occur until the Trustee notifies the Company in writing, or the Holders of at least
25% in aggregate principal amount of the Securities then outstanding notify the Company and the
Trustee in writing, of the Default (a “Notice of Default”), and the Company does not cure the
Default within the time specified in clause (4) or (5) of Section 7.01(a), as
applicable, after receipt of such notice. A notice given pursuant to this Section 7.01 shall
be given by registered or certified mail, must specify the Default, demand that it be remedied and
state that the notice is a Notice of Default. When any Default under this Section 7.01 is cured,
it ceases.




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




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



     Section 7.02 Acceleration.



     If an Event of Default (other than an Event of Default specified in clauses (6) or (7) of
Section 7.01(a)) occurs and is continuing with respect to the Company, the Trustee may, by notice
to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may, by notice to the Company and the Trustee, declare the principal amount and accrued
and unpaid interest, if any, through the date of declaration on all the Securities to be
immediately due and payable. Upon such a declaration, such principal amount and such accrued and
unpaid interest, if any, shall be due and payable immediately, subject to the provisions of Article
XI. If an Event of Default specified in Section 7.01(a)(6) or (7) occurs in respect of the Company
and is continuing, the principal amount and accrued but unpaid interest, if any, on all the
Securities shall become and be immediately due and payable, subject to the provisions of Article
XI, without any declaration or other act on the part of the Trustee or any Holders of Securities.
The Holders of a majority in aggregate principal amount of the Securities then outstanding by
notice to the Trustee may rescind an acceleration and its consequences if (a) all existing Events
of Default, other than the nonpayment of the principal of the Securities which have become due
solely by such declaration of acceleration, have been cured or waived; (b) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and (c) all payments due
to the Trustee and any predecessor Trustee under Section 8.07 have been made. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.



     Section 7.03 Other Remedies.



          (a) If an Event of Default occurs and is continuing, the Trustee may, but shall not be
obligated to, pursue any available remedy by proceeding at law or in equity to collect payment of
the principal amount and accrued and unpaid interest, if any, on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.




          (b) The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.





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




     Section 7.04 Waiver Of Defaults And Events Of Default.



     Subject to Sections 7.07 and 10.02, the Holders of a majority in aggregate principal amount of
the Securities then outstanding by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except an uncured Default or Event of Default in the payment of the
principal of, premium, if any, or any accrued but unpaid interest on any Security, an uncured
failure by the Company to convert any Securities into Common Stock or any Default or Event of
Default in respect of any provision of this Indenture or the Securities which, under Section 10.02,
cannot be modified or amended without the consent of the Holder of
each Security affected. When a
Default or Event of Default is waived, it is cured and ceases.



     Section 7.05 Control By Majority.



     The Holders of a majority in aggregate principal amount of the Securities then outstanding may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Holder or the Trustee, or that may involve the Trustee
in personal liability unless the Trustee is offered security or indemnity satisfactory to it;
provided, however, that the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.



     Section 7.06 Limitations On Suits.



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





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




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




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




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



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



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




     Section 7.07 Rights Of Holders To Receive Payment And To Convert.



     Subject to the provisions of Article XI hereof, notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of the principal amount,
Redemption Price, Put Right Purchase Price, Fundamental Change Repurchase Price, or Make-Whole
Premium and interest, if any, in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities and this Indenture, (whether upon redemption,
repurchase, or otherwise), and to convert such Security in accordance with Article IV, and to bring
suit for the enforcement of any such payment on or after such respective due dates or for the right
to convert in accordance with Article IV, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.



     Section 7.08 Collection Suit By Trustee.



     If an Event of Default described in clause (1) or (2) of Section 7.01(a) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount owing with respect to
the Securities and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.



     Section 7.09 Trustee May File Proofs Of Claim.



     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered to collect and
receive any money or other property payable or deliverable on any such claims and to distribute the
same, and any Receiver in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 8.07, and to the extent that such payment of the
reasonable compensation, expenses, disbursements and advances in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and



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shall be paid out of,
any and all distributions, dividends, money, securities and other property which the Holders may be
entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or adopt any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.




     Section 7.10 Priorities.



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





     (1) First, to the Trustee for amounts due under Section 8.07;




     (2) Second, to holders of Senior Debt to the extent required by Article XI;




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




     (4) Fourth, to such other Person or Persons, if any, to the extent entitled
thereto; and




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



          (b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to
this Section 7.10.




     Section 7.11 Undertaking For Costs



     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 7.11 does not apply to a
suit made by the Trustee, a suit by a Holder pursuant to Section 7.07, or a suit by Holders of more
than 10% in aggregate principal amount of the Securities then outstanding. This Section 7.11 shall
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from
this Indenture, as permitted by the TIA.



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ARTICLE VIII


TRUSTEE



     Section 8.01 Obligations Of Trustee.



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




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





     (1) the Trustee need perform only those duties as are specifically set forth in
this Indenture and no others; and




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



     This Section 8.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the TIA.



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





     (1) this paragraph does not limit the effect of Section 8.01(b);




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




     (3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 7.05.



     This Section 8.01(c) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the
TIA and such Sections are hereby expressly excluded from this Indenture as permitted by the TIA.



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




          (e) Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 8.01.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




     Section 8.02 Rights Of Trustee.



          (a) Subject to Section 8.01:





     (1) The Trustee may rely conclusively on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.




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




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




     (4) The Trustee shall not be liable for any action it takes or omits to take in
good faith which it believes to be authorized or within its rights or powers.




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




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



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




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




     (9) The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Trustee in each of its capacities hereunder,
including, without limitation as Paying Agent, Registrar and Conversion Agent, and
to each agent, custodian and other Person employed to act hereunder. The Trustee
may appoint an agent, with the approval of the Company, to perform such calculations
as the Conversion Agent hereunder may be required to perform.



     Section 8.03 Individual Rights Of Trustee.



     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee is subject to Sections 8.10 and 8.11.



     Section 8.04 Trustee’s Disclaimer.



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



     Section 8.05 Notice Of Default Or Events Of Default.



     If a Default or an Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Holder of a Security notice of all uncured Defaults or
Events of Default known to it within 90 days after it occurs or, if later, within 15 days after it



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becomes known to the Trustee. However, the Trustee may withhold the notice if and for so long as a
committee of its Trust Officers in good faith determines that withholding notice is in the
interests of Holders of Securities, except in the case of a Default or an Event of Default in
payment of the principal of, or premium, if any, or interest on any Security when due or in the
payment of any redemption or purchase obligation, or the Company’s failure to convert Securities
when obligated to convert them. This Section 8.05 is in lieu of section 315(b) of the TIA and such
provision is expressly excluded from this Indenture as permitted by the TIA.




     Section 8.06 Reports By Trustee To Holders.



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




          (b) A copy of each report at the time of its mailing to Holders of Securities shall be mailed
to the Company and, to the extent required by the TIA, filed with the SEC, and each stock exchange,
if any, on which the Securities are listed. The Company shall notify the Trustee whenever the
Securities become listed on any stock exchange or listed or admitted to trading on any quotation
system and any changes in the stock exchanges or quotation systems on which the Securities are
listed or admitted to trading and of any delisting thereof.




     Section 8.07 Compensation And Indemnity.



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




          (b) The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of
this Section 8.07 shall include its officers, directors, employees and agents) for, and hold it
harmless against, any and all loss, liability or expense including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee), incurred by it in connection with
the acceptance or administration of its duties under this Indenture or any action or failure to act
as authorized or within the discretion or rights or powers conferred upon the Trustee hereunder
including the reasonable costs and expenses of the Trustee and its counsel in defending (including
reasonable legal fees and expenses) itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek

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indemnity. The
Company need not pay for any settlement effected without its prior written consent, which shall not
be unreasonably withheld.




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




          (d) To secure the Company’s payment obligations in this Section 8.07, the Trustee shall have a
senior claim to which the Securities are hereby made subordinate on all money or property held or
collected by the Trustee. The obligations of the Company under this Section 8.07 shall survive the
satisfaction and discharge of this Indenture or the resignation or removal of the Trustee.




          (e) When the Trustee incurs expenses or renders services after an Event of Default specified
in clauses (6) or (7) of Section 7.01(a) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law. The provisions of
this Section shall survive the termination of this Indenture.




     Section 8.08 Replacement Of Trustee.



          (a) The Trustee may resign by so notifying the Company. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may remove the Trustee by so
notifying the Trustee and the Company and may, with the Company’s written consent, appoint a
successor Trustee. The Company may remove the Trustee at any time, so long as no Default or Event
of Default has occurred and is continuing, and appoint a Successor Trustee in accordance with this
Section 8.08.




          (b) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for
any reason, the Company shall promptly appoint a successor Trustee. The resignation or removal of
a Trustee shall not be effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.




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




          (d) If the Trustee fails to comply with Section 8.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          (e) A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee and be released from its obligations




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(exclusive of any liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
A successor Trustee shall mail notice of its succession to each Holder.




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




          (g) Notwithstanding replacement of the Trustee pursuant to this Section 8.08, the Company’s
obligations under Section 8.07 shall continue for the benefit of the retiring Trustee.




     Section 8.09 Successor Trustee By Merger, Etc.



     If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including the administration of this Indenture) to, another
corporation, the resulting, surviving or transferee corporation, without any further act, shall be
the successor Trustee; provided such transferee corporation shall qualify and be eligible under
Section 8.10. Such successor Trustee shall promptly mail notice of its succession to the Company
and each Holder.



     Section 8.10 Eligibility; Disqualification.



     The Trustee shall always satisfy the requirements of paragraphs (1), (2) and (5) of TIA
Section 310(a). The Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. If at any time the Trustee shall cease to satisfy any such requirements, it shall
resign immediately in the manner and with the effect specified in this Article VIII. The Trustee
shall be subject to the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee
from filing with the SEC the application referred to in the penultimate paragraph of TIA Section
310(b).



     Section 8.11 Preferential Collection Of Claims Against Company



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



ARTICLE IX


SATISFACTION AND DISCHARGE OF INDENTURE



     Section 9.01 Satisfaction And Discharge Of Indenture.



          (a) This Indenture shall cease to be of further force and effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein expressly

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provided
for and except as further provided below), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when either:





     (A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07 and (ii) Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid
to the Company as provided in Section 9.03) have been delivered to the
Trustee for cancellation; or




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




     (i) have become due and payable,




     (ii) will become due and payable at the Final Maturity Date within
one year, or




     (iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company;




provided in the case of clause (B), that




     (1) the Company has deposited with the Trustee or a Paying Agent (other
than the Company or any of its Affiliates) as trust funds in trust for the
purpose of and in an amount sufficient to pay and discharge all indebtedness
related to such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Final Maturity Date or Redemption Date, as the case may be. In the
event that the Company exercises its right to redeem the Securities as
provided in Article III, the Company shall have the right to withdraw its
funds previously deposited with the Trustee or Paying Agent pursuant to the
immediately preceding sentence;




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




     (3) the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions



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precedent herein
relating to the satisfaction and discharge of this Indenture have been
complied with.



          (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the conversion privilege and the Conversion Rate of the Securities pursuant
to Article IV, the obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to clause (2) of Section 9.01(a), the provisions of
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.12, 5.01 and 12.05, Article IV, and this Article IX, shall
survive until the Securities have been paid in full.




     Section 9.02 Application Of Trust Money.



     Subject to the provisions of Section 9.03, the Trustee or a Paying Agent shall hold in trust,
for the benefit of the Holders, all money deposited with it pursuant to Section 9.01 and,
notwithstanding the provisions of Article XI, shall apply the deposited money in accordance with
this Indenture and the Securities to the payment of the principal of and interest on the
Securities.



     Section 9.03 Repayment To Company.



          (a) The Trustee and each Paying Agent shall promptly pay to the Company upon request any
excess money (1) deposited with them pursuant to Section 9.01 and (2) held by them at any time.




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




     Section 9.04 Reinstatement.



          (a) If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
9.02 by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as the Trustee or such
Paying Agent is permitted to apply all such money in accordance with Section 9.02;
provided, however, that if the Company has made any payment of the principal of or
interest on any Securities because of the reinstatement of its obligations, the Company shall be




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subrogated to the rights of the Holders of such Securities to receive any such payment from the
money held by the Trustee or such Paying Agent.




          (b) If pursuant to the last sentence of Section 9.01(a)(1), the Company withdraws its
previously deposited funds as a result of its exercise of its redemption right, the Company’s
obligations under this Indenture and the Securities shall be revived and reinstated as though no
deposit has occurred pursuant to Section 9.01.



ARTICLE X


AMENDMENTS; SUPPLEMENTS AND WAIVERS



     Section 10.01 Without Consent Of Holders.



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





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




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




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




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




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




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




     (7) modifying any other provisions of this Indenture in any manner that will
not adversely affect the interests of the Holders in any material respect.



          (b) The Company may, without consent of any Holder of a Security or the Trustee, amend this
Indenture for the purpose of surrendering the Company’s right to issue shares of Common Stock upon
conversion of the Securities.




     Section 10.02 With Consent Of Holders.



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          (a) The Company and the Trustee may amend or supplement this Indenture or the Securities with
the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. However, subject to Section 10.04, without the written consent of
each Holder affected, an amendment, supplement or waiver may not:





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




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




     (3) change the stated maturity of any Security;




     (4) reduce the principal amount, Redemption Price, Put Right Purchase Price, or
Fundamental Change Repurchase Price (including any Make Whole Premium payable) (as
applicable) with respect to any of the Securities, or the amount payable upon
redemption or purchase pursuant to Article III, with respect to any Security;




     (5) make any change that adversely affects the rights of a Holder to convert
any of the Securities in any material respect;




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




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




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




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



          (b) Without limiting the provisions of Section 10.02(a) hereof, the Holders of a majority in
principal amount of the Securities then outstanding may, on behalf of all the Holders of all
Securities, (i) waive compliance by the Company with the restrictive provisions of this Indenture,
and (ii) waive any past Default of Event of Default under this Indenture and its consequences,
except an uncured failure to pay when due the principal amount, accrued and unpaid interest,
Redemption Price, Put Right Purchase Price or Fundamental Change Repurchase Price, or in the
obligation to deliver Common Stock or cash, if any and as applicable, or in respect

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of any
provision which under this Indenture cannot be modified or amended without the consent of the
Holder of each outstanding Security affected.




          (c) [Intentionally Omitted]



          (d) After an amendment, supplement or waiver under this Section 10.02 becomes effective, the
Company shall promptly mail to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.




     Section 10.03 Compliance With Trust Indenture Act.



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



     Section 10.04 Revocation And Effect Of Consents.



          (a) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is
a continuing consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective.




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




     Section 10.05 Notation On Or Exchange of Securities.



     If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.



     Section 10.06 Trustee To Sign Amendments, Etc.



     The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this
Article X if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but
need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 8.01, shall be fully protected in
relying



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upon, an Opinion of Counsel stating that such amendment or supplemental indenture is
authorized or permitted by this Indenture. The Company may not sign an amendment or supplement
indenture until the Board of Directors approves it.




     Section 10.07 Effect Of Supplemental Indentures.



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



ARTICLE XI


SUBORDINATION



     Section 11.01 Agreement to Subordinate.



     The Company agrees, and each holder of Securities by accepting a Security agrees, that the
indebtedness evidenced by the Security is subordinated in right of payment, to the extent and in
the manner provided in this Article XI, to the prior payment in full in cash or payment
satisfactory to holders of Senior Debt of all Senior Debt (whether outstanding on the date hereof
or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.



     Section 11.02 Liquidation; Dissolution; Bankruptcy.



     Upon any distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to the Company or its property, in an assignment for the benefit of creditors or any marshaling of
the Company’s assets and liabilities:



          (a) holders of Senior Debt shall be entitled to receive payment in full of all principal,
interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities due in
respect of such Senior Debt (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt) in cash or other payment satisfactory to the
holders of the Senior Debt before holders of Securities shall be entitled to receive any payment
with respect to the Securities; and




          (b) until all Senior Debt is paid in full in cash or other payment satisfactory to the holders
of the Senior Debt, any distribution to which holders of Securities would be entitled but for this
Article XI shall be made to holders of Senior Debt, as their interests may appear.




     Section 11.03 Default on Designated Senior Debt.



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     Anything in this Indenture to the contrary notwithstanding, no payment on account of principal
of or premium, if any, or interest on or other amounts due on the Securities (including without
limitation the making of a deposit pursuant to Section 3.05 or 3.10), and no redemption,
repurchase, or other acquisition of the Securities, shall be made by or on behalf of the Company
unless:



          (a) full payment of all amounts then due for principal of and interest on, and of all other
amounts then due on, all Designated Senior Debt has been made or duly provided for pursuant to the
terms of the instruments governing such Designated Senior Debt; and




          (b) at the time for, and immediately after giving effect to, any such payment, redemption,
repurchase or other acquisition, there shall not exist under any Designated Senior Debt, or any
agreement pursuant to which any Designated Senior Debt is issued, any default which shall not have
been cured or waived and which default shall have resulted in the full amount of such Designated
Senior Debt being declared due and payable.




     In addition, if the Trustee shall receive written notice from the holders of Designated Senior
Debt or their Representative (a “Payment Blockage Notice”) that there has occurred and is
continuing under such Designated Senior Debt, or any agreement pursuant to which such Designated
Senior Debt is issued, any non-payment default, which default shall not have been cured or waived,
giving the holders of such Designated Senior Debt the right to declare such Designated Senior Debt
immediately due and payable, then, anything in this Indenture to the contrary notwithstanding, no
payment on account of the principal of or premium, if any, or interest on or any other amounts due
on the Securities (including without limitation the making of a deposit pursuant to Section 3.05 or
3.10), and no redemption, repurchase or other acquisition of the Securities, shall be made by or on
behalf of the Company during the period (the “Payment Blockage Period”) commencing on the date of
receipt of the Payment Blockage Notice and ending
on the earliest of (i) the date on which such default shall have been cured or waived, (ii)
179 days from the receipt of the Payment Blockage Notice and (iii) the date the Payment Blockage
Notice is withdrawn by the holders of such Designated Senior Debt. Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions contained in Section
11.02 and the first sentence of this Section 11.03), unless the holders of such Designated Senior
Debt or the Representative of such holders shall have accelerated the maturity of such Designated
Senior Debt, the Company may resume payments on the Securities after the end of such Payment
Blockage Period. Not more than one Payment Blockage Notice may be given in any consecutive 365-day
period, irrespective of the number of defaults with respect to one or more issues of Designated
Senior Debt during such period.



     Section 11.04 Acceleration of Securities.



     In the event of the acceleration of the Securities because of an Event of Default, the Company
may not make any payment or distribution to the Trustee or any holder of Securities in respect of
any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable with respect to Securities and may not acquire or purchase from the



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Trustee or
any holder of Securities any Securities until all Senior Debt has been paid in full in cash or
other payment satisfactory to the holders of Senior Debt or such acceleration is rescinded in
accordance with the terms of this Indenture.




     If payment of the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt or trustees of such Senior Debt of the acceleration.



     Section 11.05 When Distribution Must Be Paid Over.



     In the event that the Trustee, any holder of Securities or any other person receives any
payment or distributions of assets of the Company of any kind with respect to the Securities in
contravention of any subordination terms contained in this Indenture, whether in cash, property or
securities, including, without limitation, by way of set-off or otherwise, then such payment shall
be held by the recipient in trust for the benefit of holders of Senior Debt, and shall be
immediately paid over and delivered to the holders of Senior Debt or their Representative, to the
extent necessary to make payment in full of all Senior Debt remaining unpaid, after giving effect
to any concurrent payment or distribution or provision therefor, to or for the holders of Senior
Debt; provided, however, that the foregoing shall apply to the Trustee only if a
Trust Officer of the Trustee has actual knowledge (as determined in accordance with Section 11.11)
that such payment or distribution is prohibited by this Indenture.



     With respect to the holders of Senior Debt, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this Article XI, and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over
or


distribute to or on behalf of holders of Securities or the Company or any other person money
or assets to which any holders of Senior Debt shall be entitled by virtue of this Article XI,
except if such payment is made as a result of the willful misconduct or gross negligence of the
Trustee.



     Section 11.06 Notice by Company.



     The Company shall promptly notify the Trustee of any facts known to the Company that would
cause a payment of any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable with respect to the Securities or the purchase of any
Securities by the Company to violate this Article XI, but failure to give such notice shall not
affect the subordination of the Securities to the Senior Debt as provided in this Article XI.



     Section 11.07 Subrogation.



     After all Senior Debt is paid in full and until the Securities are paid in full, holders of
Securities shall be subrogated (equally and ratably with all other indebtedness pari passu with the
Securities) to the rights of holders of Senior Debt to receive distributions applicable to Senior
Debt



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to the extent that distributions otherwise payable to the holders of Securities have been
applied to the payment of Senior Debt. A distribution made under this Article XI to holders of
Senior Debt that otherwise would have been made to holders of Securities is not, as between the
Company and holders of Securities, a payment by the Company on the Securities.




     Section 11.08 Relative Rights.



     This Article XI defines the relative rights of holders of Securities and holders of Senior
Debt. Nothing in this Indenture shall:



          (a) impair, as between the Company and holders of Securities, the obligation of the Company,
which is absolute and unconditional, to pay principal of, premium, if any, and interest on the
Securities in accordance with their terms;




          (b) affect the relative rights of holders of Securities and creditors (other than with respect
to Senior Debt) of the Company, other than their rights in relation to holders of Senior Debt; or




          (c) prevent the Trustee or any holder of Securities from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders and owners of Senior Debt to
receive distributions and payments otherwise payable to holders of Securities.




     If the Company fails because of this Article XI to pay principal of, premium, if any, or
interest on a Security on the due date, the failure is still a Default or Event of Default.



     Section 11.09 Subordination May Not Be Impaired by Company.



     No right of any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by the Company or any
holder of Securities or by the failure of the Company or any such holder to comply with this
Indenture.



     Section 11.10 Distribution or Notice to Representative.



     Whenever a distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.



     Upon any payment or distribution of assets of the Company referred to in this Article XI, the
Trustee and the holders of Securities shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the Trustee or to the
holders of Securities for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or



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payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XI.




     Section 11.11 Right of Trustee and Paying Agent.



     Notwithstanding the provisions of this Article XI or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment or distribution by the Trustee, and the Trustee may continue to make
payments on the Securities, unless a Trust Officer shall have received at least two Business Days
prior to the date of such payment or distribution written notice of facts that would cause such
payment or distribution with respect to the Securities to violate this Article XI. Only the Company
or a Representative may give the notice.



     Nothing in this Article XI shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 8.07 hereof.



     The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.



     Section 11.12 Authorization to Effect Subordination.



     Each holder of a Security by the holder’s acceptance thereof authorizes and directs the
Trustee on the holder’s behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article XI, and appoints the Trustee to act as the holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in Section 7.09 hereof at
least 30 days before the expiration of the time to file such claim, the holders of any Senior Debt
or their Representatives are hereby authorized to file an appropriate claim for and on behalf of
the holders of the Securities.



     Section 11.13 Article Applicable to Paying Agent.



     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article XI shall in such
case (unless the context otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article XI in addition to or in place of the Trustee; provided, however,
that the second and third paragraphs of Section 11.11 shall not apply to the Company or any
Subsidiary of the Company if it or such Subsidiary acts as Paying Agent.



     Section 11.14 Senior Debt Entitled to Rely.



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     The holders of Senior Debt shall have the right to rely upon this Article XI, and no amendment
or modification of the provisions contained herein shall diminish the rights of such holders unless
the holders affected thereby shall have agreed in writing thereto.



     Section 11.15 Permitted Payments.



     Notwithstanding anything to the contrary in this Article XI, the holders of Securities may
receive and retain at any time on or prior to the Final Maturity Date (i) securities that are
subordinated to at least the same extent as the Securities to (a) Senior Debt and (b) any
securities issued in exchange for Senior Debt and (ii) payments and other distributions made from
any trust created pursuant to Section 9.01.



     Section 11.16 Pari Passu Indebtedness.



     The Company’s 2.25% Convertible Subordinated Notes due 2010 issued under that certain
indenture dated as of February 25, 2003, between the Company and LaSalle Bank National Association,
is pari passu with the Securities.



ARTICLE XII


MISCELLANEOUS



     Section 12.01 Trust Indenture Act Controls.



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



     Section 12.02 Notices.



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


If to the Company, to:



Hutchinson Technology Incorporated

40 West Highland Park

Hutchinson, Minnesota 55350-9784

Attention: Investor Relations

Fax: (604) 415-6240




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if to the Trustee, to:



LaSalle Bank National Association

135 South LaSalle Street

Chicago, Illinois 60603

Attention: Gregory Clarke




     Such notices or communications shall be effective when received.



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



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



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



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



     Section 12.03 Communications By Holders With Other Holders.



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



     Section 12.04 Certificate And Opinion As To Conditions Precedent.



          (a) Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of the Trustee:





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




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



-81-









 





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





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




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




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




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


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




     Section 12.05 Record Date For Vote Or Consent Of Holders of Securities.



     The Company (or, in the event deposits have been made pursuant to Section 9.01, the Trustee)
may set a record date for purposes of determining the identity of Holders entitled to vote or
consent to any action by vote or consent authorized or permitted under this Indenture, which record
date shall not be more than 30 days prior to the date of the commencement of solicitation of such
action. Notwithstanding the provisions of Section 10.04, if a record date is fixed, those persons
who were Holders of Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to
be Holders after such record date.



     Section 12.06 Rules By Trustee, Paying Agent, Registrar And Conversion Agent.



     The Trustee may make reasonable rules (not inconsistent with the terms of this Indenture) for
action by or at a meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make
reasonable rules for its functions.



     Section 12.07 Legal Holidays.



     A “Legal Holiday” is a Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York or Chicago, Illinois are authorized or obligated to close. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding day



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that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a Regular Record Date
is a Legal Holiday, the record date shall not be affected.




     Section 12.08 Governing Law.



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



     Section 12.09 No Adverse Interpretation Of Other Agreements.



     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.



     Section 12.10 No Recourse Against Others.



     All liability described in paragraph 18 of the Securities of any director, officer, employee
or shareholder, as such, of the Company hereby is waived and released by each of the Holders.



     Section 12.11 No Security Interest Created.



     Nothing in this Indenture or in the Securities, express or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar legislation, now in
effect or hereafter enacted and made effective, in any jurisdiction.



     Section 12.12 Successors.



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



     Section 12.13 Multiple Counterparts.



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



     Section 12.14 Separability.



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



     Section 12.15 Table Of Contents, Headings, Etc.



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     The table of contents, cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.


[SIGNATURE PAGE FOLLOWS]




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



	 	 	 	 	 
	 	 	HUTCHINSON TECHNOLOGY INCORPORATED
	 
	 	 	 	 
	 

	 	By:	 	/s/ Ruth N. Bauer
	 

	 	 	 	 
	 

	 	 	 	Name: Ruth N. Bauer

Title: Treasurer
	 
	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION,

solely as Trustee hereunder and not in its individual
capacity
	 
	 	 	 	 
	 

	 	By:	 	/s/ Gregory S. Clarke
	 

	 	 	 	 
	 

	 	 	 	Name: Gregory S. Clarke

Title: Vice President
















 





EXHIBIT A


[FORM OF FACE OF SECURITY]



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.



A-1









 





HUTCHINSON TECHNOLOGY INCORPORATED

3.25% Convertible Subordinated Notes due 2026




			
	No. [                    ]
	 	CUSIP: 448407AF3






     Hutchinson Technology Incorporated, a Minnesota corporation, promises to pay to Cede & Co. or
registered assigns the principal amount of                                         ($                    ) on January 15,
2026.



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



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


Dated:



[SIGNATURE PAGE FOLLOWS]





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



	 	 	 	 	 
	 	 	HUTCHINSON TECHNOLOGY INCORPORATED
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






	 	 	 	 	 
	Dated:	 	 
	 
	 	 	 	 
	Trustee’s Certificate of Authentication: This is one of the

Securities referred to in the within-mentioned Indenture.
	 
	 	 	 	 
	LASALLE BANK NATIONAL ASSOCIATION,

solely as Trustee hereunder and not in its individual capacity  
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






A-3









 





[FORM OF REVERSE SIDE OF SECURITY)



HUTCHINSON TECHNOLOGY INCORPORATED.

CONVERTIBLE SUBORDINATED NOTES DUE 2026



1. INTEREST




     Hutchinson Technology Incorporated, a Minnesota corporation (the “Company”, which term shall
include any successor corporation under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate of 3.25% per annum. The Company
shall pay interest semiannually on January 15 and July 15 of each year (each an “Interest Payment
Date”), commencing July 15, 2006. Each payment of interest will include interest accrued through
the day before the relevant Interest Payment Date (or purchase or redemption date, as the case may
be). Cash interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months.



     No sinking fund is provided for the Securities.



2. METHOD OF PAYMENT




     The Company shall pay interest on this Security (except defaulted interest) to the person who
is the Holder of this Security at the close of business on January 1 or July 1, as the case may be,
(each, a “Regular Record Date”) next preceding the related Interest Payment Date. The Holder must
surrender this Security to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of payment is legal tender
for payment of public and private debts. The Company may pay principal and interest in respect of
any Certificated Security by check or wire payable in such money; provided,
however, that a Holder with an aggregate principal amount in excess of $2,000,000 will be
paid by wire transfer in immediately available funds at the election of such Holder if such Holder
has provided wire transfer instructions to the Trustee at least 10 Business Days prior to the
Interest Payment Date. The Company may mail an interest check to the Holder’s registered address.
Notwithstanding the foregoing, so long as this Security is registered in the name of a Depositary
or its nominee, all payments hereon shall be made by wire transfer of immediately available funds
to the account of the Depositary or its nominee.



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



3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT




     Initially, LaSalle Bank National Association (the “Trustee”, which term shall include any
successor trustee under the Indenture hereinafter referred to) will act as Paying Agent, Registrar
and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion



A-4









 




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




4. INDENTURE, LIMITATIONS




     This Security is one of a duly authorized issue of Securities of the Company designated as its
3.25% Convertible Subordinated Notes Due 2026 (the “Securities”), issued under an Indenture dated
as of January 25, 2006 (together with any supplemental indentures thereto, the “Indenture”),
between the Company and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended, as in effect on the date of the Indenture. This Security is subject to
all such terms, and the Holder of this Security is referred to the Indenture and said Act for a
statement of them.



     The Securities are subordinated unsecured obligations of the Company limited to $225,000,000
aggregate principal amount ($250,000,000 aggregate principal amount if the Underwriters exercise
their over-allotment option in full). The Indenture does not limit other debt of the Company,
secured or unsecured.



5. REDEMPTION AT THE OPTION OF THE COMPANY




     Prior to January 21, 2011 the Securities shall not be redeemable. On or after January 21,
2011 the Company may, at its option, redeem the Securities for cash, as a whole at any time or from
time to time in part at the Redemption Price. The “Redemption Price”, when used with respect to
any Security to be redeemed, means the prices set forth below, plus accrued and unpaid interest, if
any, to, but excluding, the Redemption Date. The following cash prices are for Securities redeemed
during the 12-month period commencing on January 21 of the years set forth below, and are expressed
as percentages of principal amount:



	 	 	 	 	 
	Redemption Year	 	Price	 
	2011
	 	 	100.93	%
	2012
	 	 	100.46	%
	2013 and thereafter
	 	 	100.00	%





Provided that if the Redemption Date is also an Interest Payment Date, then interest on the
Securities payable on such Interest Payment Date will instead be payable to the Holders in whose
names the Securities are registered at the close of business on the applicable Regular Record Date.
Securities or portions of Securities called for redemption shall be convertible by the Holder
until the close of business on the second Business Day prior to the relevant Redemption Date.




6. NOTICE OF REDEMPTION




     Notice of redemption, as set forth in Section 3.03 of the Indenture, will be mailed by
first-class mail at least 30 days but not more than 60 days before a Redemption Date to each Holder
of Securities to be redeemed at its registered address. Securities in denominations larger than
$1,000



A-5









 




may be redeemed in part, but only in whole multiples of $1,000. On and after the Redemption
Date, subject to the deposit with the Paying Agent of funds sufficient to pay the Redemption Price,
such Securities or portions of them called for redemption will cease to be outstanding, whether or
not the Security is delivered to the Paying Agent, and the rights of the Holder in respect thereof
shall cease (other than the right to receive the Redemption Price).




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




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



8. PURCHASE OF SECURITIES AT OPTION OF HOLDER ON SPECIFIED DATES




     At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase for cash all or any part specified by the Holder (so
long as the principal amount of such part is $1,000 or an integral multiple of $1,000) of the
Securities held by such Holder on the applicable Put Right Purchase Date at the applicable Put
Right Purchase Price. The Holder shall have the right to withdraw any Put Right Purchase Notice
(in whole or in a portion thereof that is $1,000 or an integral multiple of $1,000) at any time
prior to the close of business on the Business Day next preceding the Put Right Purchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with the terms of the
Indenture.



9. CONVERSION




     Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, a Holder may surrender for conversion any Security that is
$1,000 principal amount or integral multiples thereof. In lieu of receiving shares of the Common
Stock, a Holder will receive, for each $1,000 principal amount of Securities surrendered for
conversion:




	 	-	 	cash in an amount equal to the lesser of (1) $1,000 and (2) the Conversion
Value; and




A-6









 












	 	-	 	if the Conversion Value is greater than $1,000, a number of shares of the
Common Stock, equal to the sum of the Daily Share Amounts for each of the ten
consecutive Trading Days in the Conversion Reference Period (appropriately adjusted to
reflect stock splits, stock dividends, combinations or similar events occurring during
the Conversion Reference Period), subject to the Company’s right to deliver cash in
lieu of all or a portion of such shares as described in the Indenture.





10. SUBORDINATION




     The Company’s payment of the principal of, premium, if any, conversion payments and interest
on the Securities is subordinated to the prior payment in full of the Company’s Senior Debt as set
forth in the Indenture. Each Holder of Securities by his or her acceptance hereof covenants and
agrees that all payments of the principal of, premium, if any, conversion payments and interest on
the Securities by the Company shall be subordinated in accordance with the provisions of Article XI
of the Indenture, and each Holder of Securities accepts and agrees to be bound by such provisions.



11. DENOMINATIONS, TRANSFER, EXCHANGE




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



12. PERSONS DEEMED OWNERS




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



13. UNCLAIMED MONEY




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



14. AMENDMENT, SUPPLEMENT AND WAIVER




     Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived in a particular
instance with the consent of the Holders of a majority in aggregate principal amount of the



A-7









 




Securities then outstanding. Without the consent of or notice to any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Securities to, among other things, cure
any ambiguity, defect or inconsistency or make any other change that does not adversely affect the
rights of the Holders in any material respect. The Company may also amend the Indenture, without
consent of the Holders or the Trustee, for the purpose of surrendering the Company’s right to issue
shares of Common Stock upon conversion of the Securities.




     Any amendment to the provisions of Article XI of the Indenture (which relate to subordination)
will require the consent of each holder of Senior Debt if such amendment would diminish the
rights of such holder of Senior Debt.



15. SUCCESSOR ENTITY




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



16. DEFAULTS AND REMEDIES




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



     (1) the Company shall fail to pay when due the Principal or any Redemption Price, Put Right
Purchase Price or Fundamental Change Repurchase Price of any Security, when the same becomes due
and payable whether at the Final Maturity Date, upon redemption, repurchase, acceleration or
otherwise; or



     (2) the Company shall fail to pay an installment of cash interest on any of the Securities,
which failure continues for 30 days after the date when due; or



     (3) the Company shall fail to deliver when due all cash and shares of Common Stock, if any,
deliverable upon conversion of the Securities, which failure continues for 15 days; or



     (4) the Company shall fail to perform or observe (or obtain a waiver with respect to) any
other term, covenant or agreement contained in the Securities or the Indenture for a period of 60
days after receipt by the Company of a Notice of Default specifying such failure; or



     (5) default in the payment of principal by the end of any applicable grace period or resulting
in acceleration of other Indebtedness of the Company for borrowed money where the aggregate
principal amount with respect to which the default or acceleration has occurred exceeds $25 million
and such acceleration has not been rescinded or annulled or such Indebtedness repaid within a
period of 30 days after receipt of a Notice of Default, provided that if any such default is
cured, waived, rescinded or annulled, then the Event of Default by reason thereof would be
deemed not to have occurred or



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



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




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




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




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




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




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




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




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




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




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



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




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



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



     If an Event of Default (other than an Event of Default specified in clauses (6) or (7) above)
occurs and is continuing with respect to the Company, the Trustee may, by notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the Securities then outstanding



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may,
by notice to the Company and the Trustee, declare the principal amount and accrued and unpaid
interest, if any, through the date of declaration on all the Securities to be immediately due and
payable. Upon such a declaration, such principal amount and such accrued and unpaid interest, if
any, shall be due and payable immediately. If an Event of Default specified in clauses (6) or (7)
occurs in respect of the Company and is continuing, the principal amount and accrued but unpaid
interest, if any, on all the Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee
may rescind an acceleration and its consequences if (a) all existing Events of Default, other than
the nonpayment of the principal of the Securities which have become due solely by such declaration
of acceleration, have been cured or waived; (b) to the extent the payment of such interest is
lawful, interest (calculated at the rate per annum borne by the Securities) on overdue installments
of interest and overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under the Indenture have been made. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. Holders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Securities then outstanding
may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of principal or interest) if
and so long as it determines that withholding notice is in their interests. The Company is
required to file periodic certificates with the Trustee as to the Company’s compliance with the
Indenture and knowledge or status of any Default.




17. TRUSTEE DEALINGS WITH THE COMPANY




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



18. NO RECOURSE AGAINST OTHERS




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



19. AUTHENTICATION





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




20. ABBREVIATIONS AND DEFINITIONS




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



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



21. INDENTURE TO CONTROL; GOVERNING LAW




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



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ASSIGNMENT FORM




     To assign this Security, fill in the form below:



I or we assign and transfer this Security to




 




(Insert assignee’s social security or tax I.D. number)




 





 





 




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



and irrevocably appoint



 




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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

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

	 	 	 	 	 	 







 




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




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CONVERSION NOTICE




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



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



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



 




(Insert assignee’s social security or tax I.D. number)




 





 





 




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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

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

	 	 	 	 	 	 







 




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




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FUNDAMENTAL CHANGE REPURCHASE NOTICE




To: Hutchinson Technology Incorporated




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


Dated:




	 	 	 
	 

	 	 
	 

	 	Signature (s)
	 
	 	 
	 

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

	 	 
	 

	 	Signature Guaranty





Principal amount to be purchased (in an

integral multiple of $1,000, if less than all):






 




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




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OPTION TO ELECT PURCHASE

ON SPECIFIED DATES




To: Hutchinson Technology Incorporated




     The undersigned hereby requests and instructs Hutchinson Technology Incorporated to purchase
the entire principal amount of this Security, or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, on ___in accordance with the terms of the
Indenture referred to in this Security at the Put Right Purchase Price for the next occurring Put
Right Purchase Date to the registered Holder hereof.


Dated:




	 	 	 
	 

	 	 
	 

	 	Signature (s)
	 
	 	 
	 

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

	 	 
	 

	 	Signature Guaranty





	Principal amount to be purchased (in an

integral multiple of $1,000, if less than all):







 




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




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SCHEDULE OF EXCHANGES OF SECURITIES




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



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






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