Unassociated Document


    
      

    

    
       

      NEW
        RIVER
        PHARMACEUTICALS INC.

       

      3.50%
        CONVERTIBLE SUBORDINATED NOTES DUE 2013

      


       

      


       

      INDENTURE

      


       

      


       

      DATED
        AS
        OF JULY 25, 2006

       

       

      


       

      WILMINGTON
        TRUST COMPANY

       

      AS
        TRUSTEE

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      TABLE
        OF
        CONTENTS

       

      Page

       

      
        	
                ARTICLE
                  1 DEFINITIONS AND INCORPORATION BY REFERENCE

              	
                1

              
	
                Section
                  1.01.

              	
                Definitions.

              	
                1

              
	
                Section
                  1.02.

              	
                Other
                  Definition.

              	
                10

              
	
                Section
                  1.03.

              	
                Trust
                  Indenture Act Provisions

              	
                11

              
	
                Section
                  1.04.

              	
                Rules
                  of Construction.

              	
                11

              
	
                ARTICLE
                  2 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.

              	
                15

              
	
                Section
                  2.06.

              	
                Transfer
                  and Exchange.

              	
                15

              
	
                Section
                  2.07.

              	
                Replacement
                  Securities.

              	
                16

              
	
                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.

              	
                Legend;
                  Additional Transfer and Exchange Requirements.

              	
                18

              
	
                Section
                  2.13.

              	
                CUSIP
                  Numbers.

              	
                22

              
	
                ARTICLE
                  3 PURCHASE UPON FUNDAMENTAL CHANGE

              	
                23

              
	
                Section
                  3.01.

              	
                Purchase
                  at Holders’ Option upon a Fundamental Change.

              	
                23

              
	
                Section
                  3.02.

              	
                Effect
                  of Fundamental Change Purchase Notice.

              	
                25

              
	
                Section
                  3.03.

              	
                Deposit
                  of Fundamental Change Purchase Price.

              	
                26

              
	
                Section
                  3.04.

              	
                Repayment
                  to The Company.

              	
                26

              
	
                Section
                  3.05.

              	
                Securities
                  Purchased in Part.

              	
                26

              
	
                Section
                  3.06.

              	
                Compliance
                  with Securities Laws upon Purchase of Securities.

              	
                27

              
	
                Section
                  3.07.

              	
                Purchase
                  of Securities in Open Market.

              	
                27

              
	
                ARTICLE
                  4 CONVERSION

              	
                27

              
	
                Section
                  4.01.

              	
                Conversion
                  Privilege and Conversion Rate.

              	
                27

              
	
                Section
                  4.02.

              	
                Conversion
                  Procedure.

              	
                31

              


      

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      

      


      
        	
                Section
                  4.03.

              	
                Fractional
                  Shares.

              	
                33

              
	
                Section
                  4.04.

              	
                Taxes
                  on Conversion

              	
                33

              
	
                Section
                  4.05.

              	
                Company
                  to Provide Stock.

              	
                33

              
	
                Section
                  4.06.

              	
                Adjustment
                  of Conversion Rate.

              	
                33

              
	
                Section
                  4.07.

              	
                No
                  Adjustment

              	
                40

              
	
                Section
                  4.08.

              	
                Notice
                  of Adjustment.

              	
                41

              
	
                Section
                  4.09.

              	
                Notice
                  of Certain Transactions.

              	
                41

              
	
                Section
                  4.10.

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

              	
                41

              
	
                Section
                  4.11.

              	
                Trustee’s
                  Disclaimer.

              	
                42

              
	
                Section
                  4.12.

              	
                [Intentionally
                  Omitted]

              	
                43

              
	
                Section
                  4.13.

              	
                Payment
                  of Cash in Lieu of Common Stock.

              	
                43

              
	
                ARTICLE
                  5 COVENANTS

              	
                44

              
	
                Section
                  5.01.

              	
                Payment
                  of Securities.

              	
                44

              
	
                Section
                  5.02.

              	
                SEC
                  and Other Reports.

              	
                45

              
	
                Section
                  5.03.

              	
                Compliance
                  Certificates.

              	
                45

              
	
                Section
                  5.04.

              	
                Further
                  Instruments and Acts.

              	
                45

              
	
                Section
                  5.05.

              	
                Maintenance
                  of Corporate Existence.

              	
                45

              
	
                Section
                  5.06.

              	
                Rule
                  144A Information Requirement.

              	
                45

              
	
                Section
                  5.07.

              	
                Stay,
                  Extension and Usury Laws.

              	
                46

              
	
                Section
                  5.08.

              	
                Payment
                  of Additional Interest.

              	
                46

              
	
                Section
                  5.09.

              	
                Maintenance
                  of Office or Agency.

              	
                46

              
	
                ARTICLE
                  6 CONSOLIDATION; MERGER; CONVEYANCE; TRANSFER OR LEASE

              	
                47

              
	
                Section
                  6.01.

              	
                Company
                  May Consolidate, Etc., Only on Certain Terms.

              	
                47

              
	
                Section
                  6.02.

              	
                Successor
                  Substituted.

              	
                47

              
	
                ARTICLE
                  7 DEFAULT AND REMEDIES

              	
                48

              
	
                Section
                  7.01.

              	
                Events
                  of Default.

              	
                48

              
	
                Section
                  7.02.

              	
                Acceleration.

              	
                50

              
	
                Section
                  7.03.

              	
                Other
                  Remedies.

              	
                50

              
	
                Section
                  7.04.

              	
                Waiver
                  of Defaults and Events of Default.

              	
                51

              
	
                Section
                  7.05.

              	
                Control
                  by Majority.

              	
                51

              
	
                Section
                  7.06.

              	
                Limitations
                  on Suits.

              	
                51

              
	
                Section
                  7.07.

              	
                Rights
                  of Holders to Receive Payment and to Convert.

              	
                52

              


      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

      


      
        	
                Section
                  7.08.

              	
                Collection
                  Suit by Trustee.

              	
                52

              
	
                Section
                  7.09.

              	
                Trustee
                  May File Proofs of Claim.

              	
                52

              
	
                Section
                  7.10.

              	
                Priorities.

              	
                53

              
	
                Section
                  7.11.

              	
                Undertaking
                  for Costs.

              	
                53

              
	
                ARTICLE
                  8 TRUSTEE

              	
                54

              
	
                Section
                  8.01.

              	
                Obligations
                  of Trustee.

              	
                54

              
	
                Section
                  8.02.

              	
                Rights
                  of Trustee.

              	
                55

              
	
                Section
                  8.03.

              	
                Individual
                  Rights of Trustee.

              	
                56

              
	
                Section
                  8.04.

              	
                Trustee’s
                  Disclaimer.

              	
                56

              
	
                Section
                  8.05.

              	
                Notice
                  of Default or Events of Default.

              	
                56

              
	
                Section
                  8.06.

              	
                Reports
                  by Trustee to Holders.

              	
                57

              
	
                Section
                  8.07.

              	
                Compensation
                  and Indemnity.

              	
                57

              
	
                Section
                  8.08.

              	
                Replacement
                  of Trustee.

              	
                58

              
	
                Section
                  8.09.

              	
                Successor
                  Trustee by Merger, Etc.

              	
                59

              
	
                Section
                  8.10.

              	
                Eligibility;
                  Disqualification.

              	
                59

              
	
                Section
                  8.11.

              	
                Preferential
                  Collection of Claims Against Company.

              	
                59

              
	
                ARTICLE
                  9 SATISFACTION AND DISCHARGE OF INDENTURE

              	
                59

              
	
                Section
                  9.01.

              	
                Satisfaction
                  and Discharge of Indenture.

              	
                59

              
	
                Section
                  9.02.

              	
                Application
                  of Trust Money

              	
                60

              
	
                Section
                  9.03.

              	
                Repayment
                  to Company

              	
                60

              
	
                Section
                  9.04.

              	
                Reinstatement

              	
                61

              
	
                ARTICLE
                  10 AMENDMENTS; SUPPLEMENTS AND WAIVERS

              	
                61

              
	
                Section
                  10.01.

              	
                Without
                  Consent of Holders.

              	
                61

              
	
                Section
                  10.02.

              	
                With
                  Consent of Holders

              	
                62

              
	
                Section
                  10.03.

              	
                Compliance
                  with Trust Indenture Act

              	
                63

              
	
                Section
                  10.04.

              	
                Revocation
                  and Effect of Consents

              	
                63

              
	
                Section
                  10.05.

              	
                Notation
                  on or Exchange of Securities

              	
                63

              
	
                Section
                  10.06.

              	
                Trustee
                  to Sign Amendments, Etc.

              	
                63

              
	
                Section
                  10.07.

              	
                Effect
                  of Supplemental Indentures

              	
                64

              
	
                ARTICLE
                  11 SUBORDINATION

              	
                64

              
	
                Section
                  11.01.

              	
                Agreement
                  to Subordinate

              	
                64

              
	
                Section
                  11.02.

              	
                Payment
                  to Holders

              	
                64

              
	
                Section
                  11.03.

              	
                Subrogation
                  of Securities

              	
                67

              


      

       

      
        
          
          

        

        
          iii

          
            

          

        

        
          
          

        

      

      


      
        	
                Section
                  11.04.

              	
                Authorization
                  to Effect Subordination

              	
                68

              
	
                Section
                  11.05.

              	
                Notice
                  to Trustee

              	
                68

              
	
                Section
                  11.06.

              	
                Trustee’s
                  Relation to Senior Indebtedness

              	
                69

              
	
                Section
                  11.07.

              	
                No
                  Impairment of Subordination

              	
                69

              
	
                Section
                  11.08.

              	
                Certain
                  Conversions Deemed Payment

              	
                70

              
	
                Section
                  11.09.

              	
                Article
                  Applicable to Paying Agents

              	
                70

              
	
                Section
                  11.10.

              	
                Senior
                  Indebtedness Entitled to Rely

              	
                70

              
	
                Section
                  11.11.

              	
                Reinstatement

              	
                70

              
	
                Section
                  11.12.

              	
                Actions
                  by Holders of Senior Indebtedness

              	
                71

              
	
                ARTICLE
                  12 MISCELLANEOUS

              	
                71

              
	
                Section
                  12.01.

              	
                Trust
                  Indenture Act Controls

              	
                71

              
	
                Section
                  12.02.

              	
                Notices

              	
                71

              
	
                Section
                  12.03.

              	
                Communications
                  By Holders with Other Holder

              	
                73

              
	
                Section
                  12.04.

              	
                Certificate
                  and Opinion as to Conditions Precedent

              	
                73

              
	
                Section
                  12.05.

              	
                Record
                  Date for Vote or Consent of Holders of Securities

              	
                74

              
	
                Section
                  12.06.

              	
                Rules
                  by Trustee, Paying Agent, Registrar and Conversion Agent

              	
                74

              
	
                Section
                  12.07.

              	
                Legal
                  Holidays

              	
                74

              
	
                Section
                  12.08.

              	
                Governing
                  Law

              	
                74

              
	
                Section
                  12.09.

              	
                No
                  Adverse Interpretation of Other Agreements

              	
                74

              
	
                Section
                  12.10.

              	
                No
                  Recourse Against Others

              	
                74

              
	
                Section
                  12.11.

              	
                No
                  Security Interest Created

              	
                74

              
	
                Section
                  12.12.

              	
                Successors

              	
                75

              
	
                Section
                  12.13.

              	
                Multiple
                  Counterparts

              	
                75

              
	
                Section
                  12.14.

              	
                Separability

              	
                75

              
	
                Section
                  12.15.

              	
                Table
                  of Contents, Headings, Etc.

              	
                75

              
	
                Exhibit

              	 	
                A-1

              


      

       

      
        
          
          

        

        
          iv

          
            

          

        

        
          
          

        

      


      CROSS
        REFERENCE TABLE*

       

      
        
          	
                  TIA

                  SECTION

                	 	 	
                  INDENTURE

                   
                    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 July 25, 2006 is between New River Pharmaceuticals
        Inc., a
        corporation duly organized under the laws of the Commonwealth of Virginia
        (the
“Company”), and Wilmington Trust Company, a Delaware banking corporation, 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 Securities.

       

      ARTICLE
        1


      DEFINITIONS
        AND INCORPORATION BY REFERENCE

       

      Section
        1.01. Definitions.

       

      “Additional
        Interest” has the meaning specified in the Registration Rights Agreement. All
        references herein to interest accrued or payable as of any date shall include
        any Additional Interest accrued or payable as of such date as provided in
        the
        Registration Rights Agreement.

       

      “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.

       

      “Aggregate
        Share Cap” means initially 36.3504 shares of Common Stock per $1,000 principal
        amount of Securities, subject to proportional adjustment in the same manner
        as
        the Conversion Rate upon the occurrence of any of the events described under
        clauses (1) through (4) of Section 4.06(a).

       

      “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 The
        City of New York 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 or the schedule called for by
        footnote 1 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 (including any
        syndicate or group which would be deemed to be a “person” under Section 13(d)(3)
        of the Exchange Act), 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 (x) that does not result in any reclassification, conversion,
        exchange or cancellation of outstanding shares of the Company’s Capital Stock
        and (y) 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.
        Notwithstanding anything to the contrary set forth herein, it will not
        constitute a Change of Control if 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 otherwise
        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 Global 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 under Section 4.13; 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.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      


      “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 Global
        Market
        or, if the Common Stock (or the applicable security) is not quoted on the
        Nasdaq
        Global Market, as reported by the principal national or regional securities
        exchange on which the Common Stock (or such other security) is listed. If
        the
        Common Stock (or such other security) is not listed for trading on a United
        States national or regional securities exchange and not reported by the Nasdaq
        Global Market on the relevant date, the “Closing Price” shall be the last quoted
        bid price for the Common Stock (or such other security) in the over-the-counter
        market on the relevant date as reported by the National Quotation Bureau
        or
        similar organization. If the Common Stock (or such other security) is not
        so
        quoted, the “Closing Price” shall be the average of the midpoint of the last bid
        and ask prices for the Common Stock (or such other security) on the relevant
        date from each of at least three independent nationally recognized investment
        banking firms selected by the Company for this purpose.

       

      “Common
        Stock” means the common stock of the Company, par value $0.001 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 29.0803 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.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      


      “Conversion
        Reference Period” means:

       

      (i)    for
        Securities that are converted during the one month period prior to the Final
        Maturity Date of the Securities, the 20 consecutive Trading Days beginning
        on
        July 5, 2013; and

       

      (ii)   in
        all
        other instances, the 20 consecutive Trading Days beginning on the third Trading
        Day following the Conversion Date.

       

      “Conversion
        Value” means, for each $1,000 principal amount of Securities, the average of the
        Daily Conversion Values for each of the twenty 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 Wilmington Trust Company located at Wilmington Trust Company
        care of Computershare Trust Company of New York, 88 Pine Street, 19th
        Floor,
        Wall Street Plaza, New York, New York 10005, attention: Corporate Capital
        Markets (New River Pharmaceuticals Inc. 3.50% Convertible Subordinated Notes
        due
        2013).

       

      “Daily
        Conversion Value” means, with respect to any Trading Day, the product of (1) the
        applicable Conversion Rate and (2) the Volume Weighted Average Price of the
        Company’s 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 for such Trading Day multiplied by the
        Conversion Rate in effect on the Conversion Date, less (b) $1,000; divided
        by
        (ii) the Volume Weighted Average Price for such Trading Day multiplied by
        20.

       

      “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 Indebtedness” means any Senior Indebtedness that is specifically
        identified by the Company in the instrument governing or evidencing the
        Indebtedness or the assumption or guarantee thereof (or related agreements
        or
        documents to which the Company is a party) as “Designated Senior Indebtedness”
for purposes of this Indenture, provided that such instrument, agreement
        or
        other document may place limitations and conditions on the right of such
        Senior
        Indebtedness to exercise the rights of Designated Senior
        Indebtedness.

       

      “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 August 1, 2013.

       

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

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      


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

       

      “Fundamental
        Change Purchase Price” of any Security, means 100% of the principal amount of
        the Security to be purchased plus accrued and unpaid interest, if any, and
        Additional Interest, if any, to, but excluding, the Fundamental Change Purchase
        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
        Public Company Accounting Oversight Board and the Financial Accounting Standards
        Board, (3) such other statements by such other entity as approved by a
        significant segment of the accounting profession and (4) 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 and schedule called
        for
        in footnote 1 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 Person on any date of determination, without
        duplication, the principal or face amount of:

       

      (1)    all
        of
        such Person’s indebtedness, obligations and other liabilities, contingent or
        otherwise, (A) for borrowed money, including overdrafts, foreign exchange
        contracts, currency exchange agreements, interest rate protection agreements,
        and any loans or advances from banks, whether or not evidenced by notes or
        similar instruments, or (B) evidenced by credit or loan agreements, bonds,
        debentures, notes or similar instruments, or incurred in connection with
        the
        acquisition of any property, services or assets, whether or not the recourse
        of
        the lender is to the whole of such Person’s assets or to only a portion thereof,
        other than any account payable or other accrued current liability or obligation
        to trade creditors representing the purchase price or cost of materials or
        services obtained in the ordinary course of business;

       

      (2)    all
        of
        such Person’s reimbursement obligations and other liabilities, contingent or
        otherwise, with respect to letters of credit, bank guarantees, bankers’
acceptances, surety bonds, performance bonds or other guaranty of contractual
        performance;

       

      (3)    all
        of
        such Person’s obligations and other liabilities, contingent or otherwise, in
        respect of leases required, in conformity with GAAP, to be accounted for
        as
        capitalized lease obligations on such Person’s balance sheet or for a financing
        purpose; 

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      


      (4)    of
        such
        Person’s obligations and other liabilities, contingent or otherwise, under any
        lease or related document, including a purchase agreement, conditional sale
        or
        other title retention agreement, in connection with the lease of real property
        or improvements thereon (or any personal property included as part of any
        such
        lease) which provides that such Person is contractually obligated to purchase
        or
        cause a third party to purchase the leased property or pay an agreed upon
        residual value of the leased property, including such Person’s payment
        obligations under such lease or related document to purchase or cause a third
        party to purchase such leased property or pay an agreed upon residual value
        of
        the leased property to the lessor;

       

      (5)    all
        of
        such Person’s obligations, contingent or otherwise, with respect to an interest
        rate or other swap, cap, floor or collar agreement or hedge agreement, forward
        contract or other similar instrument or agreement or foreign currency hedge,
        exchange, purchase or similar instrument or agreement;

       

      (6)    all
        of
        such Person’s direct or indirect guarantees or similar agreements by such Person
        in respect of, and all of such Person’s payment obligations or monetary
        liabilities, contingent or otherwise, to purchase or otherwise acquire or
        otherwise assure a creditor against loss in respect of, indebtedness,
        obligations or liabilities of another Person of the kinds described in clauses
        (1) through (5);

       

      (7)    all
        indebtedness or other obligations of the kind described in clauses (1) through
        (5) secured by any mortgage, pledge, lien or other encumbrance existing on
        property that is owned or held by such Person, regardless of whether the
        indebtedness or other obligation secured thereby shall have been assumed
        by such
        Person; and

       

      (8)    any
        and
        all deferrals, renewals, extensions, refinancings and refundings of, or
        amendments, modifications or supplements to, any indebtedness, obligation
        or
        liability of the kinds described in clauses (1) through (7).

       

      “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.

       

      “Initial
        Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and
        W.R. Hambrecht & Co., LLC.

       

      “Interest
        Payment Date” means February 1 and August 1 of each year, commencing February 1,
        2007.

       

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

       

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

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      


      “Officer”
        means the Chairman of the Board, the Chief Executive Officer, the President,
        any
        Vice President, the Chief Financial Officer, 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 4.10 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.

       

      “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, 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 debt security plus, when appropriate, the premium, if any, on the
        debt
        security.

       

      “Registration
        Rights Agreement” means the Registration Rights Agreement, dated as of July 25,
        2006, between the Company and Merrill Lynch, Pierce, Fenner & Smith
        Incorporated, as amended from time to time in accordance with its
        terms.

       

      “Regular
        Record Date” means, with respect to each Interest Payment Date, the January 15
        or July 15, as the case may be, next preceding such Interest Payment
        Date.

       

      “Representative”
        means the trustee, agent or representative (if any) for an issue of Senior
        Indebtedness.

       

      “Responsible
        Officer” means, when used with respect to the Trustee, any officer within the
        corporate trust services department of the Trustee with direct responsibility
        for the administration of this Indenture and also means, with respect to
        a
        particular corporate trust matter, any other officer to whom such matter
        is
        referred because of such person’s knowledge of and familiarity with the
        particular subject.

       

      “Restricted
        Global Security” means a Global Security that is a Restricted
        Security.

       

      “Restricted
        Security” means a Security required to bear the restricted legend set forth in
        the form of Security annexed as Exhibit A.

       

      “Rule
        144” means Rule 144 under the Securities Act or any successor to such
        Rule.

       

      “Rule
        144A” means Rule 144A under the Securities Act or any successor to such
        Rule.

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      


      “SEC”
        means the Securities and Exchange Commission.

       

      “Securities”
        means the up to $125,000,000 aggregate principal amount ($143,750,000 aggregate
        principal amount if the Initial Purchasers exercise their over-allotment
        option
        to purchase up to an additional $18,750,000 aggregate principal amount in
        full)
        of 3.50% Convertible Subordinated Notes due 2013, 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.

       

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

       

      “Senior
        Indebtedness” means the principal of, premium (if any) and interest, including
        any interest accruing after the commencement of any bankruptcy or similar
        proceeding, whether or not a claim for post-petition interest is allowed
        as a
        claim in the proceeding, and rent payable on or termination payment with respect
        to or in connection with, and all fees, costs, expenses and other amounts
        accrued or due on or in connection with, the Company’s Indebtedness, whether
        secured or unsecured, absolute or contingent, due or to become due, 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 or refundings of, or amendments, modifications or
        supplements to, the foregoing. “Senior Indebtedness” does not include: (i)
        Indebtedness that expressly provides that such Indebtedness will not be senior
        in right of payment to the Securities or expressly provides that such
        Indebtedness is on parity with or junior in right of payment to the Securities;
        and (ii) any Indebtedness to any of the Company’s Subsidiaries, other than
        Indebtedness to the Company’s Subsidiaries arising by reason of guarantees of
        the Company of Indebtedness of such Subsidiary to a Person that is not the
        Company’s Subsidiary.

       

      “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.

       

      “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).

       

      “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 the Nasdaq Global Market 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.

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      


      “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 (i) there is no Marketing Disruption Event and (ii)
        the Nasdaq Global Market or, if the Common Stock is not quoted on the Nasdaq
        Global Market, the principal national or regional 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 Company 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 Company, 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
        Company, that one bid shall be used. If the Company 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.

       

      “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” per share of Common Stock on any Trading Day means such
        price as displayed on Bloomberg (or any successor service) page NRPH
<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
        Volume Weighted Average Price means the market value per share of Common
        Stock
        on such day as determined by a nationally recognized independent investment
        banking firm retained for this purpose by the Company.

       

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      


      “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
        Definition. 

       

      
        	
                Term

              	 	
                Defined
                  in Section

              
	
                “Agent
                  Members”

              	 	
                2.01

              
	
                “Bankruptcy
                  Law”

              	 	
                7.01

              
	
                “Business
                  Combination”

              	 	
                4.10

              
	
                “Company
                  Order”

              	 	
                2.02

              
	
                “Conversion
                  Trigger Price”

              	 	
                4.01

              
	
                “Conversion
                  Agent”

              	 	
                2.03

              
	
                “Conversion
                  Date”

              	 	
                4.02

              
	
                “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”

              	 	
                3.01

              
	
                “Fundamental
                  Change Purchase Date”

              	 	
                3.01

              
	
                “Fundamental
                  Change Purchase Notice”

              	 	
                3.01

              
	
                “Junior
                  Securities”

              	 	
                11.08

              
	
                “Legal
                  Holiday”

              	 	
                12.07

              
	
                “Legend”

              	 	
                2.12

              
	
                “Make
                  Whole Premium”

              	 	
                4.01

              
	
                “Notice
                  of Default”

              	 	
                7.01

              
	
                “Paying
                  Agent”

              	 	
                2.03

              
	
                “Payment
                  Blockage Notice”

              	 	
                11.02

              
	
                “Primary
                  Registrar”

              	 	
                2.03

              
	
                “Purchase
                  Agreement”

              	 	
                2.01

              
	
                “Purchased
                  Shares”

              	 	
                4.06

              
	
                “record
                  date”

              	 	
                4.06

              
	
                “QIB”

              	 	
                2.01

              
	
                “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

              


      

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      


      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;

       

      (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



      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      


      (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
        2


      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 July 19, 2006
        (the “Purchase Agreement”) among the Company and the Initial Purchasers, in
        transactions exempt from, or not subject to, the registration requirements
        of
        the Securities Act.

       

      (a)    Restricted
        Global Securities.
        All of
        the Securities are initially being offered and sold to qualified institutional
        buyers as defined in Rule 144A (collectively, “QIBS” or individually, each a
“QIB”) in reliance on Rule 144A under the Securities Act and shall be issued
        initially in the form of one or more Restricted Global Securities, 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 Restricted Global Securities 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 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.

       

      
        
          
          

        

        
          12

          
            

          

        

        
          
          

        

      


      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 legends 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 A 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.”

       

      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 $125,000,000 aggregate principal
        amount ($143,750,000 aggregate principal amount if the Initial Purchasers
        exercise their over-allotment option in full), except as provided in Sections
        2.06 and 2.07.

       

      
        
          
          

        

        
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      (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 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 $125,000,000
        ($143,750,000 if the Initial Purchasers exercise their over-allotment 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 Restricted 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. 

       

      (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 the Borough of Manhattan, The City of
        New
        York. 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 9).

       

      
        
          
          

        

        
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      (c)    The
        Company hereby initially designates the Trustee as Paying Agent, Registrar,
        Securities Custodian and Conversion Agent, and initially designates the
        Corporate Trust Office of the Trustee as an office or agency 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 9.02, 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 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, 2.12(a), 3.06, 4.02(e) or 10.05.

       

      
        
          
          

        

        
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      (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, or (2) any Securities or
        portions thereof in respect of which a Fundamental Change 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).

       

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

       

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

       

      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.

       

      
        
          
          

        

        
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      (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 by the Company pursuant
        to
        Article 3, or converted pursuant to Article 4, the Company in its discretion
        may, instead of issuing a new Security, pay, 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 as a result of any Securities, at
        the
        request of any Holder, being issued to a Person other than such Holder 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.

       

      (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 purchased pursuant to Article 3, those converted
        pursuant to Article 4, 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 Fundamental Change Purchase Date
        or
        the Final Maturity Date money sufficient to pay the principal of (including
        premium, if any), accrued interest and Additional Interest, if any, on
        Securities (or portions thereof) payable on that date, then on and after
        such
        Fundamental Change 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 and Additional Interest, if any, on them shall
        cease to accrue.

       

      (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.

       

      
        
          
          

        

        
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      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.

       

      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,
        purchase, payment or conversion. The Trustee and no one else shall cancel,
        in
        accordance with its standard procedures, all Securities surrendered for
        transfer, exchange, 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
        purchased or otherwise acquired by the Company or any of its Subsidiaries
        prior
        to the Final Maturity Date pursuant to Article 3 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 4.

       

      Section
        2.12. Legend;
        Additional Transfer and Exchange Requirements.

       

      (a)    If
        Securities are issued upon the transfer, exchange or replacement of Securities
        subject to restrictions on transfer and bearing the legends set forth on
        the
        forms of Securities attached as Exhibit A (collectively, the “Legend”), or if a
        request is made to remove the Legend on a Security, the Securities so issued
        shall bear the Legend, or the Legend shall not be removed, as the case may
        be,
        unless there is delivered to the Company and the Registrar such satisfactory
        evidence, which shall include an Opinion of Counsel if requested by the Company
        or such Registrar, as may be reasonably required by the Company and the
        Registrar, that neither the Legend nor the restrictions on transfer set forth
        therein are required to ensure that transfers thereof comply with the provisions
        of Rule 144A or Rule 144 under the Securities Act or that such Securities
        are
        not “restricted” within the meaning of Rule 144 under the Securities Act;
        provided that no such evidence need be supplied in connection with the sale
        of
        such Security pursuant to a registration statement that is effective at the
        time
        of such sale. Upon (1) provision of such satisfactory evidence if requested
        or
        (2) notification by the Company to the Trustee and Registrar of the sale
        of such
        Security pursuant to a registration statement that is effective at the time
        of
        such sale, the Trustee, at the written direction of the Company, shall
        authenticate and deliver a Security that does not bear the Legend. If the
        Legend
        is removed from the face of a Security and the Security is subsequently held
        by
        an Affiliate of the Company, the Legend shall be reinstated. 

       

      
        
          
          

        

        
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      (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)    Subject
        to Section 2.12(b) and in compliance with Section 2.12(d), every Security
        shall
        be subject to the restrictions on transfer provided in the Legend. Whenever
        any
        Restricted Security other than a Restricted 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,
        as
        to compliance with such restrictions on transfer. 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. 

       

      (d)    The
        restrictions imposed by the Legend upon the transferability of any Security
        shall cease and terminate when such Security has been sold pursuant to an
        effective registration statement under the Securities Act or transferred
        in
        compliance with Rule 144 under the Securities Act (or any successor provision
        thereto) or, if earlier, upon the expiration of the holding period applicable
        to
        sales thereof under Rule 144(k) under the Securities Act (or any successor
        provision). Any Security as to which such restrictions on transfer shall
        have
        expired in accordance with their terms or shall have terminated may, upon
        a
        surrender of such Security for exchange to the Registrar in accordance with
        the
        provisions of this Section 2.12 (accompanied, in the event that such
        restrictions on transfer have terminated by reason of a transfer in compliance
        with Rule 144 or any successor provision, by, if requested by the Company
        or the
        Registrar, an Opinion of Counsel reasonably acceptable to the Company and
        the
        Registrar and addressed to the Company and the Registrar, to the effect that
        the
        transfer of such Security has been made in compliance with Rule 144 or such
        successor provision), be exchanged for a new Security, of like tenor and
        aggregate principal amount, which shall not bear the restrictive Legend.
        The
        Company shall inform the Trustee of the effective date of any registration
        statement registering the offer and sale of the Securities under the Securities
        Act. The Trustee shall not be liable for any action taken or omitted to be
        taken
        by it in good faith in accordance with the aforementioned Opinion of Counsel
        or
        registration statement.

       

      
        
          
          

        

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

       

      (e)    The
        provisions below shall apply only 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 legends 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 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. 

       

      
        
          
          

        

        
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      (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 converted, canceled
        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 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)    Until
        the
        expiration of the holding period applicable to sales thereof under Rule 144(k)
        under the Securities Act (or any successor provision thereto), any stock
        certificate representing Common Stock issued upon conversion of any Security
        shall bear a legend in substantially the following form, unless such Common
        Stock has been sold pursuant to a registration statement that has been declared
        effective under the Securities Act (and which continues to be effective at
        the
        time of such transfer) or transferred in compliance with Rule 144 under the
        Securities Act (or any successor provision thereto), or such Common Stock
        has
        been issued upon conversion of Securities that have been transferred pursuant
        to
        a registration statement that has been declared effective under the Securities
        Act or pursuant to Rule 144 under the Securities Act (or any successor provision
        thereto), or unless otherwise agreed by the Company in writing with written
        notice thereof to the transfer agent:

       

      THE
        COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
        ACT
        OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND,
        ACCORDINGLY, MAY NOT BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
        ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
        UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
        THE SECURITIES ACT.

       

      
        
          
          

        

        
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      BY
        ITS
        ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
        THE
        COMMON STOCK EVIDENCED HEREBY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE
        LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NEW RIVER
        PHARMACEUTICALS INC. (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE
        OWNER OF THE COMMON STOCK EVIDENCED HEREBY (OR ANY PREDECESSOR OF THE COMMON
        STOCK EVIDENCED HEREBY) (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO
        THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
        WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (C) PURSUANT
        TO
        ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
        SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRANSFER AGENT’S RIGHT PRIOR TO
        ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) PRIOR TO THE RESALE
        RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
        CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
        IN
        EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
        THE
        FORM APPEARING ON THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED AND DELIVERED
        BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON
        THE
        REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
        DATE.

       

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

       

      Section
        2.13. CUSIP
        Numbers.

       

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

       

      
        
          
          

        

        
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      ARTICLE
        3


      PURCHASE
        UPON FUNDAMENTAL CHANGE

       

      Section
        3.01. Purchase
        at Holders’ Option 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, 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 Purchase 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 3.01(b) (the “Fundamental Change Purchase
        Date”).

       

      (b)    As
        promptly as practicable following the date when the Company publicly announces
        a
        Fundamental Change but in no event less than 10 Trading Days prior to the
        anticipated Fundamental Change Effective Date, 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 as required
        by applicable law) (the “Fundamental Change Company Notice”). The Fundamental
        Change Company Notice shall include the form of a Fundamental Change Purchase
        Notice to be completed by the Holder and shall state:

       

      (1)    the
        events causing such Fundamental Change; 

       

      (2)    the
        date
        (or expected date) of such Fundamental Change; 

       

      (3)    the
        last
        date by which the Fundamental Change Purchase Notice must be delivered to
        elect
        the repurchase option pursuant to this Section 3.01; 

       

      (4)    the
        Fundamental Change Purchase Date; 

       

      (5)    the
        Fundamental Change Purchase 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 4
        and
        that Securities as to which a Fundamental Change Purchase Notice has been
        given
        may be converted into Common Stock pursuant to Article 4 of this Indenture
        only
        to the extent that the Fundamental Change Purchase 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
        3.01; 

       

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

       

      
        
          
          

        

        
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      (12)    that,
        unless the Company fails to pay such Fundamental Change Purchase Price,
        Securities covered by any Fundamental Change Purchase Notice will cease to
        be
        outstanding and interest and Additional Interest, if any, will cease to accrue
        on and after the Fundamental Change Purchase 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. 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 3.01(a) upon delivery of a written
        notice (which shall be in substantially the form attached as Exhibit A under
        the
        heading “Fundamental Change Purchase 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 Purchase
        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 Purchase
        Date, subject to extension to comply with applicable law. 

       

      (1)    The
        Fundamental Change Purchase 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 Purchase Date pursuant to the terms and conditions specified in the
        Securities and in this Indenture. 

       

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

       

      (3)    The
        Company shall only be obliged to purchase, pursuant to this Section 3.01,
        a
        portion of a Security if the principal amount of such portion is $1,000 or
        an
        integral multiple of $1,000 (provisions of this 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 Purchase Notice contemplated by this Section 3.01(c) shall
        have the right to withdraw such Fundamental Change Purchase 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 Purchase Date by delivery of a written notice
        of
        withdrawal to the Paying Agent in accordance with Section 3.02. 

       

      
        
          
          

        

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

       

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

       

      Section
        3.02. Effect
        of Fundamental Change Purchase Notice.

       

      (a)    Upon
        receipt by any Paying Agent of a properly completed Fundamental Change Purchase
        Notice from a Holder, the Holder of the Security in respect of which such
        Fundamental Change Purchase Notice was given shall (unless such Fundamental
        Change Purchase Notice is withdrawn as specified in Section 3.02(b)) thereafter
        be entitled to receive the Fundamental Change Purchase Price with respect
        to
        such Security, subject to the occurrence of the Fundamental Change Effective
        Date and an absence of an Event of Default, or a continuation thereof (other
        than a Default in the payment of the Fundamental Change Purchase Price).
        Such
        Fundamental Change Purchase Price shall be paid to such Holder promptly
        following the later of (1) the Fundamental Change Purchase Date (provided
        that
        the conditions in Section 3.01 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 3.01(c). Securities in respect of which a Fundamental Change Purchase
        Notice has been given by the Holder thereof may not be converted into shares
        of
        Common Stock pursuant to Article 4 on or after the date of the delivery of
        such
        Fundamental Change Purchase Notice unless such Fundamental Change Purchase
        Notice has first been validly withdrawn in accordance with Section 3.02(b)
        with
        respect to the Securities to be converted. 

       

      (b)    A
        Fundamental Change Purchase 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 Purchase 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 Applicable Procedures) and (3) the portion of
        the
        principal amount of the Security that will remain subject to the Fundamental
        Change Purchase Notice, which portion must be a principal amount of $1,000
        or an
        integral multiple thereof. 

       

      
        
          
          

        

        
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      Section
        3.03. Deposit
        of Fundamental Change Purchase Price.

       

      (a)    On
        or
        before 10:00 a.m., New York City time, on the applicable Fundamental Change
        Purchase 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), sufficient to pay the aggregate
        Fundamental Change Purchase Price of all the Securities or portions thereof
        that
        are to be purchased as of such Fundamental Change Purchase Date. 

       

      (b)    If
        a
        Paying Agent or the Trustee holds, in accordance with the terms hereof, money
        sufficient to pay the Fundamental Change Purchase Price of any Security for
        which a Fundamental Change Purchase Notice has been tendered and not withdrawn
        in accordance with this Indenture then, on immediately after the applicable
        Fundamental Change Purchase Date, such Security will cease to be outstanding,
        whether or not the Security is delivered to the Paying Agent or the Trustee,
        and
        interest and Additional Interest, if any, 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 Purchase Price as aforesaid). The Company
        shall publicly announce the principal amount of Securities repurchased on
        or as
        soon as practicable after the Fundamental Change Purchase Date. 

       

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

       

      (d)    If
        a
        Fundamental Change Purchase Date falls after a Regular Record Date and on
        or
        before the related 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 such Regular
        Record Date.

       

      Section
        3.04. Repayment
        to The Company.

       

      To
        the
        extent that the aggregate amount of cash deposited by the Company pursuant
        to
        Section 3.03 exceeds the aggregate Fundamental Change Purchase Price of the
        Securities or portions thereof that the Company is obligated to purchase,
        then
        promptly after the Fundamental Change Purchase Date the Trustee or a Paying
        Agent, as the case may be, shall return any such excess cash to the
        Company.

       

      Section
        3.05. Securities
        Purchased in Part.

       

      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 Purchase Date,
        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.

       

      
        
          
          

        

        
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      Section
        3.06. Compliance
        with Securities Laws upon Purchase of Securities.

       

      In
        connection with any offer to purchase of Securities under Section 3.01, 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 3.01 through 3.04 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
        3.07. Purchase
        of Securities in Open Market.

       

      The
        Company (a) on or prior to the date that is two years from the latest issuance
        of any Securities and in accordance with Section 2.11, shall surrender any
        Security purchased by the Company pursuant to this Article 3 to the Trustee
        for
        cancellation, and (b) after such date and in accordance with Section 2.11,
        may
        surrender such Security to the Trustee for cancellation. 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 the open market, by tender at any price
        or
        by negotiated transactions and such Securities may be reissued or resold,
        to the
        extent permitted by applicable law, or may be surrendered to the Trustee
        for
        cancellation.

       

      ARTICLE
        4


      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 4.13, and upon
        compliance with the provisions of this Article 4, 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 Final Maturity Date or such earlier date set forth in this Article 4,
        unless
        previously purchased by the Company at the Holder’s option upon the occurrence
        of a Fundamental Change, 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 October 1, 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 (the “Conversion Trigger Price”);

       

      
        
          
          

        

        
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      (2)    if
        the
        Company distributes to all holders of Common Stock rights (including rights
        under a shareholder rights agreement) or warrants entitling them to purchase,
        for a period expiring within 45 days of the date of issuance, Common Stock
        at
        less than the Current Market Price of the Common Stock on the day of issuance;
        

       

      (3)    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 15% of the average of the Closing Prices for the five
        consecutive Trading Days ending on the date immediately preceding the first
        public announcement of such distribution; 

       

      (4)    if
        a
        Fundamental Change occurs; 

       

      (5)    at
        any
        time during the period beginning on July 1, 2013 and ending at the close
        of
        business on the Business Day immediately preceding the Final Maturity Date;
        or


       

      (6)    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 less than 98%
        of
        the product of the Closing Price of the Common Stock for each day in that
        period
        and the Conversion Rate per $1,000 principal amount of Securities. 

       

      (b)    In
        the
        case of a distribution contemplated by clauses (2) and (3) of Section 4.01(a),
        the Company shall notify Holders and Trustee 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 (2) and (3) of Section 4.01(a), Holders may not convert the Securities
        if the Holders will otherwise participate in such distribution without
        converting their Securities, other than through adjustments contemplated
        by
        Section 4.06. 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 (2) or (3) of Section 4.01(a). 

       

      (c)    [Intentionally
        Omitted] 

       

      (d)    In
        the
        case of a transaction contemplated by clause (4) 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 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 will occur
        until
        a date that is within 10 Trading Days before the anticipated Fundamental
        Change
        Effective Date, the Company will notify the Holders and the Trustee promptly
        after the Company has knowledge of such Fundamental Change. Holders may
        surrender Securities for conversion at any time beginning 10 Trading Days
        before
        the anticipated Fundamental Change Effective Date of a Fundamental Change
        and
        until the last Trading Day preceding the Fundamental Change Purchase Date.
        

       

      
        
          
          

        

        
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      (e)    (i)
        For each
        calendar quarter of the Company, beginning with the calendar quarter ending
        September 30, 2006, 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 in writing. Upon request of the Conversion Agent, the
        Company
        shall provide, or cause to be provided to, the Conversion Agent the Closing
        Price per share of Common Stock for the 30 consecutive Trading Days ending
        on
        the last Trading Day of the preceding calendar quarter. 

       

      (ii)    The
        Company shall have no obligation to determine the Trading Price of the
        Securities and whether the Securities are convertible pursuant to clause
        (6) of
        Section 4.01(a) unless a Holder of 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 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 4 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 submitted or presented for purchase upon a Fundamental Change
        pursuant to Article 3, such conversion right shall terminate at the close
        of
        business on the Business Day immediately preceding the Fundamental Change
        Purchase Date for such Security (unless the Company shall fail to make the
        Fundamental Change Purchase Price payment when due in accordance with Article
        3,
        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 Purchase
        Notice has been delivered may not be surrendered for conversion pursuant
        to this
        Article 4 prior to a valid withdrawal of such Fundamental Change Notice in
        accordance with the provisions of Article 3. 

       

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

       

      
        
          
          

        

        
          29

          
            

          

        

        
          
          

        

      


      (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 4. 

       

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

       

      (j)    If
        there
        shall have occurred a Fundamental Change, then the Conversion Rate per $1,000
        principal amount of Securities otherwise in effect in respect of Securities
        that
        are converted during the period beginning 10 Trading Days before the anticipated
        Fundamental Change Effective Date and ending at the close of business on
        the
        Trading Day immediately preceding the Fundamental Change Purchase Date shall
        be
        increased by the amount, if any, determined 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 amount of the Conversion Rate
        adjustment will be determined by a straight-line interpolation between the
        adjustment amounts 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 $300.00
        per
        share, subject to adjustment as set forth herein, no adjustment to the
        applicable Conversion Rate will be made, and (iii) if the Stock Price on
        the
        Fundamental Change Effective Date is less than $27.51 per share, subject
        to
        adjustment as set forth herein, no adjustment to the applicable Conversion
        Rate
        will be made. 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.

       

      The
        following table shows the amount, if any, by which the applicable Conversion
        Rate will increase for each hypothetical Stock Price and Fundamental Change
        Effective Date set forth below:

       

      Make
        Whole Premium Upon a Fundamental Change (Increase in Applicable Conversion
        Rate)

       

      
        	
                Stock
                  Price on Effective Date

              	 	
                7/25/2006

              	 	
                8/1/2007

              	 	
                8/1/2008

              	 	
                8/1/2009

              	 	
                8/1/2010

              	 	
                8/1/2011

              	 	
                8/1/2012

              	 	
                8/1/2013

              
	
                $27.51

              	 	
                7.2701

              	 	
                7.2701

              	 	
                7.2701

              	 	
                7.2701

              	 	
                7.2701

              	 	
                7.2701

              	 	
                7.2701

              	 	
                0.0000

              
	
                $30.00

              	 	
                6.4242

              	 	
                6.0129

              	 	
                5.5821

              	 	
                5.1448

              	 	
                4.6931

              	 	
                4.2653

              	 	
                3.8851

              	 	
                0.0000

              
	
                $35.00

              	 	
                5.2363

              	 	
                4.8089

              	 	
                4.3385

              	 	
                3.8259

              	 	
                3.2444

              	 	
                2.5896

              	 	
                1.7646

              	 	
                0.0000

              
	
                $40.00

              	 	
                4.4492

              	 	
                4.0412

              	 	
                3.5860

              	 	
                3.0813

              	 	
                2.5007

              	 	
                1.8358

              	 	
                1.0159

              	 	
                0.0000

              
	
                $45.00

              	 	
                3.8929

              	 	
                3.5093

              	 	
                3.0857

              	 	
                2.6158

              	 	
                2.0771

              	 	
                1.4687

              	 	
                0.7611

              	 	
                0.0000

              
	
                $50.00

              	 	
                3.4815

              	 	
                3.1278

              	 	
                2.7365

              	 	
                2.3041

              	 	
                1.8141

              	 	
                1.2658

              	 	
                0.6559

              	 	
                0.0000

              
	
                $75.00

              	 	
                2.3061

              	 	
                2.0644

              	 	
                1.7957

              	 	
                1.5020

              	 	
                1.1816

              	 	
                0.8242

              	 	
                0.4320

              	 	
                0.0000

              
	
                $100.00

              	 	
                1.7244

              	 	
                1.5502

              	 	
                1.3454

              	 	
                1.1249

              	 	
                0.8858

              	 	
                0.6177

              	 	
                0.3238

              	 	
                0.0000

              
	
                $150.00

              	 	
                1.1521

              	 	
                1.0352

              	 	
                0.8959

              	 	
                0.7487

              	 	
                0.5898

              	 	
                0.4110

              	 	
                0.2152

              	 	
                0.0000

              
	
                $200.00

              	 	
                0.8663

              	 	
                0.7783

              	 	
                0.6716

              	 	
                0.5597

              	 	
                0.4414

              	 	
                0.3073

              	 	
                0.1605

              	 	
                0.0000

              
	
                $250.00

              	 	
                0.6933

              	 	
                0.6236

              	 	
                0.5362

              	 	
                0.4464

              	 	
                0.3519

              	 	
                0.2440

              	 	
                0.1269

              	 	
                0.0000

              
	
                $300.00

              	 	
                0.5795

              	 	
                0.5205

              	 	
                0.4464

              	 	
                0.3711

              	 	
                0.2921

              	 	
                0.2017

              	 	
                0.1036

              	 	
                0.0000

              


      


      
        
          
          

        

        
          30

          
            

          

        

        
          
          

        

      


      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, other
        than
        as a result of an adjustment of the Conversion Rate by virtue of the provisions
        of this Section 4.01(j). The adjusted Stock Prices will equal the Stock Prices
        applicable immediately prior to such adjustment multiplied by a fraction,
        the
        numerator of which is the Conversion Rate immediately prior to the adjustment
        giving rise to the Stock Price adjustment and the denominator of which is
        the
        Conversion Rate as so adjusted. The Conversion Rate adjustment amounts 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.

       

      Notwithstanding
        the foregoing paragraph, in no event will the Conversion Rate exceed 36.3504
        per
        $1,000 principal amount of Securities, subject to adjustment in the manner
        set
        forth in clauses (1) through (4) of Section 4.06(a) hereof.

       

      (k)    Except
        as
        set forth in Section 4.02(c), 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, and Additional Interest if any, 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 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 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 (such calculations
        shall be made in accordance with Section 4.13(c) hereof), 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 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.

       

      
        
          
          

        

        
          31

          
            

          

        

        
          
          

        

      


      (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 Conversion Rate in
        effect
        on the Conversion Date 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 will receive the semi-annual
        interest payable on such Securities on the corresponding Interest Payment
        Date
        notwithstanding the conversion. 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, the
        Securities and the Registration Rights Agreement. 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 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 4, the Company
        will promptly after making such determination issue a press release and use
        reasonable efforts to post such information on the Company’s website or
        otherwise publicly disclose such information.

       

      
        
          
          

        

        
          32

          
            

          

        

        
          
          

        

      


      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 arithmetic average of the Volume Weighted
        Average Price of the Common Stock for each of the twenty 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 Company 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 Company shall also pay any such tax with
        respect
        to cash received in lieu of fractional shares. 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. 

       

      (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 of any
        securityholder of the Company 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.

       

      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 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. 

       

      
        
          
          

        

        
          33

          
            

          

        

        
          
          

        

      


      (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 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 stockholders
        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 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.
        

       

      
        
          
          

        

        
          34

          
            

          

        

        
          
          

        

      


      (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.

       

      
        
          
          

        

        
          35

          
            

          

        

        
          
          

        

      


      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 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 Conversion Rate in effect on 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 Global 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 or warrants (the “Rights”) that may be issued or
        distributed pursuant to any rights plan that the Company implements after
        the
        date of this Indenture (a “Rights Plan”), or if the Company’s current Rights
        Plan is still in effect, 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 in the case of the Company’s current Rights Plan or a future
        Rights Plan to the extent applicable, 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 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 constituting such rights 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 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 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.

       

      
        
          
          

        

        
          36

          
            

          

        

        
          
          

        

      


      (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 having
        a
        fair market value (determined as provided below) that exceeds 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).

       

      
        
          
          

        

        
          37

          
            

          

        

        
          
          

        

      


      (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 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; 

       

      
        
          
          

        

        
          38

          
            

          

        

        
          
          

        

      


      (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 to be adjusted as a
        result
        of such other event. For purposes of this Section 4.06(a)(9) 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.

       

      
        
          
          

        

        
          39

          
            

          

        

        
          
          

        

      

       

      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 4.08)
        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 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)    Notwithstanding
        the provisions set forth in Section 4.06(a), in no event shall the Conversion
        Rate exceed 36.3504 per $1,000 principal amount of Securities, subject to
        adjustment in the manner set forth in clauses (1) through (4) of Section
        4.06(a).

       

      Section
        4.07. No
        Adjustment.
        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. 

       

      
        
          
          

        

        
          40

          
            

          

        

        
          
          

        

      

       

      (a)    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
        4
        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.

       

      (b)    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.
        

       

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

       

      Section
        4.09. 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
        4.09.

       

      Section
        4.10. 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 to one or more of the Company’s
        subsidiaries, or 

       

      
        
          
          

        

        
          41

          
            

          

        

        
          
          

        

      


      (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 (assuming for such purpose
        such
        conversion were settled entirely in the Company’s Common Stock and without
        giving effect to any adjustment to the conversion rate with respect to a
        Business Combination constituting a Fundamental Change) 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 Purchase
        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 Company shall
        make adequate provision whereby the Securities shall be convertible from
        and
        after the effective date of such Business Combination into the form of
        consideration elected by a majority of the Company’s shareholders in such
        Business Combination. Appropriate provisions will be made, as determined
        in good
        faith by the Company’s Board of Directors, to preserve the settlement provisions
        in Section 4.13 following such Business Combination to the extent feasible.
        The
        Company may not become a party to any such transaction unless its terms are
        consistent with this Section 4.10. 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 4. 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 3 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
        4.11. Trustee’s
        Disclaimer.

       

      The
        Trustee shall have no duty to determine when an adjustment under this Article
        4
        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,
        including the Officers’ Certificate with respect thereto which the Company is
        obligated to file with the Trustee pursuant to Section 4.08. The Trustee
        makes
        no representation as to the validity or value of any securities or assets
        issued
        upon conversion of Securities. 

       

      
        
          
          

        

        
          42

          
            

          

        

        
          
          

        

      

       

      Section
        4.12. [Intentionally
        Omitted] 

       

      Section
        4.13. 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 Common Stock equal to the sum of the Daily
        Share Amounts for each of the 20 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 4.13(b); provided that
        in no
        event shall the aggregate number of shares of Common Stock to be issued pursuant
        to the foregoing clause (B), per $1,000 principal amount of Securities, exceed
        the Aggregate Share Cap, without taking into account any election by the
        Company
        to deliver cash in lieu of all or a portion of the shares of Common Stock
        otherwise deliverable as set forth in Section 4.13(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 4.13(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 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. 

       

      
        
          
          

        

        
          43

          
            

          

        

        
          
          

        

      

       

      (c)    The
        Company shall determine the Conversion Value, Daily Share Amount and Volume
        Weighted Average Price at the end of the applicable Conversion Reference
        Period.
        For the purposes of Sections 4.13(a) and (b), in the event that any of
        Conversion Value, Daily Share Amounts or Volume Weighted Average Price cannot
        be
        determined 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
        5


      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 or Additional Interest, if any, shall be considered
        paid on the date it is due if the Paying Agent (other than the Company) holds
        by
        10:00 a.m., New York City time, on that date money, deposited by or on behalf
        of
        the Company sufficient to make the payment. 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, interest, Fundamental Change Purchase Price and
        Additional Interest, if any, in each case if payable, shall be considered
        paid
        on the applicable date due if on such date the Trustee or the Paying Agent
        holds, in accordance with this Indenture, money sufficient to pay all such
        amounts then due. The Company shall, to the fullest extent permitted by law,
        pay
        interest in immediately available funds on overdue principal amount and interest
        at the annual rate borne by the Securities compounded semiannually, which
        interest shall accrue from the date such overdue amount was originally due
        to
        the date payment of such amount, including interest thereon, has been made
        or
        duly provided for. All such interest shall be payable on demand. 

       

      (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 the Borough
        of
        Manhattan, The City of New York (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.

       

      
        
          
          

        

        
          44

          
            

          

        

        
          
          

        

      

       

      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 on or about
        January 1, 2007), an Officers’ Certificate as to the signer’s knowledge of the
        Company’s compliance with all terms, 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.

       

      Section
        5.05. Maintenance
        of Corporate Existence.

       

      Subject
        to Article 6, 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. Rule
        144A Information Requirement.

       

      During
        the period prior to the expiration of the holding period applicable to sales
        thereof under Rule 144(k) under the Securities Act (or any successor provision),
        the Company covenants and agrees that it shall, during any period in which
        it is
        not subject to Section 13 or 15(d) under the Exchange Act, upon the request
        of
        any Holder or beneficial holder of the Securities, make available to such
        Holder
        or beneficial holder of Securities or any Common Stock issued upon conversion
        thereof which continue to be Restricted Securities in connection with any
        sale
        thereof and any prospective purchaser of Securities or such Common Stock
        designated by such Holder or beneficial holder, the information required
        pursuant to Rule 144A(d)(4) under the Securities Act and it will take such
        further action as any Holder or beneficial holder of such Securities or such
        Common Stock may reasonably request, all to the extent required from time
        to
        time to enable such Holder or beneficial holder to sell its Securities or
        Common
        Stock without registration under the Securities Act within the limitation
        of the
        exemption provided by Rule 144A, as such Rule may be amended from time to
        time.
        Whether a person is a beneficial holder shall be determined by the Company.
        

       

      
        
          
          

        

        
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      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 or Additional Interest, if any,
        on
        the Securities as contemplated herein, wherever enacted, now or at any time
        hereafter in force, or which may affect the covenants or the performance
        of this
        Indenture, and the Company (to the extent it may lawfully do so) hereby
        expressly waives all benefit or advantage of any such law and covenants that
        it
        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. Payment
        of Additional Interest.

       

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

       

      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.

       

      
        
          
          

        

        
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      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
        6


      CONSOLIDATION;
        MERGER; CONVEYANCE; TRANSFER OR LEASE

       

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

       

      The
        Company may not consolidate with or merge into any Person (unless the Company
        is
        the surviving corporation) or convey, transfer or lease the property and
        assets,
        substantially as an entity, 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 4, 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 6.01 and, if a supplemental indenture is required in connection
        with such transaction, such supplemental indenture complies with this Article,
        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 entity, 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 indenture, the predecessor Person shall be
        relieved of all obligations and covenants under this Indenture and the
        Securities. 

       

      
        
          
          

        

        
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      ARTICLE
        7


      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 the Principal or Fundamental Change Purchase
        Price of any Security, when the same becomes due and payable whether at the
        Final Maturity Date, upon repurchase, acceleration or otherwise, and regardless
        of whether such payment is permitted pursuant to the subordination provisions
        under Article 11; or

       

      (2)    the
        Company shall fail to pay an installment of cash interest or Additional
        Interest, if any, on any of the Securities, which failure continues for 30
        days
        after the date when due, regardless of whether such payment is permitted
        pursuant to the subordination provisions under Article 11; 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, regardless of whether such delivery is permitted pursuant to the
        subordination provisions under Article 11; 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)    the
        Company shall 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 not be deemed to have occurred; or 

       

      
        
          
          

        

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

       

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

       

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

       

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

       

      (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 or any Significant Subsidiary of the Company in
        an
        involuntary case or proceeding or adjudicates the Company or any Significant
        Subsidiary of the Company insolvent or bankrupt; 

       

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

       

      (C)    orders
        the winding up or liquidation of the Company or any Significant Subsidiary
        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 clause (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, and accrued and unpaid Additional 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, and such accrued and unpaid Additional Interest, if any,
        shall
        be due and payable immediately. 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, and accrued and
        unpaid
        Additional 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 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,
        and accrued and unpaid Additional Interest, if any, on the Securities or
        to
        enforce the performance of any provision of the Securities or this Indenture.
        

       

      
        
          
          

        

        
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      (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. 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 and cash, as applicable,
        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 to exist.

       

      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 4)
        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.

       

      Notwithstanding
        any other provision of this Indenture but subject to the provisions of Article
        11 hereof, the right of any Holder of a Security to receive payment of the
        principal amount, interest, Fundamental Change Purchase Price, if any, or
        Additional 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 repurchase or otherwise), and to convert such Security
        in accordance with Article 4, 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 4, 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 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.

       

      
        
          
          

        

        
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      Section
        7.10. Priorities.

       

      (a)    If
        the
        Trustee collects any money pursuant to this Article 7, 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 the Holders of Senior Indebtedness to the extent required by Article 11;
        

       

      (3)    Third,
        to
        Holders for amounts due and unpaid on the Securities for the principal amount,
        interest, and Additional 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
        8


      TRUSTEE

       

      Section
        8.01. Obligations
        of Trustee.

       

      (a)    If
        an
        Event of Default of which a Responsible Officer of the Trustee shall have
        actual
        knowledge 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 of which a Responsible Officer
        of
        the Trustee shall have actual knowledge:

       

      (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 in its individual capacity for any error of judgment
        made in good faith by a Responsible Officer, unless it is proved that the
        Trustee was negligent in ascertaining the pertinent facts; and 

       

      (3)    the
        Trustee shall not be liable in its individual capacity 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. 

       

      (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.
        

       

      
        
          
          

        

        
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      (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 and shall be protected in acting or refraining
        from acting upon 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 execute any of the trusts or powers hereunder or perform any
        duties
        hereunder either directly or by or through agents, attorneys or custodians,
        and
        the Trustee shall not be responsible for any misconduct or negligence on
        the
        part of any such agent, attorney or custodian appointed by the Trustee with
        due
        care. 

       

      (4)    The
        Trustee shall not be personally 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 or to institute, conduct or defend any litigation
        hereunder or in relation hereto 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. 

       

      (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. The reasonable expense
        of every such examination shall be paid by the Company or, if paid by the
        Trustee, shall be repaid by the Company upon demand from the Company’s own
        funds. 

       

      
        
          
          

        

        
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      (8)    The
        Trustee shall not be deemed to have notice or knowledge of any Default, Event
        of
        Default, or Fundamental Change unless a Responsible 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. In the absence
        of
        receipt of such notice or actual knowledge, the Trustee may conclusively
        assume
        that there is no Default, Event of Default, or Fundamental Change. 

       

      (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.
        

       

      (10)    The
        right
        of the Trustee to perform any discretionary act enumerated in this Indenture
        shall not be construed as a duty, and the Trustee shall not be answerable
        for
        other than its own gross negligence or willful misconduct in the performance
        of
        such act. 

       

      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 and the Trustee assumes no responsibility for their
        correctness. 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 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.

       

      
        
          
          

        

        
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      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 franchise taxes and taxes based upon,
        measured by or determined by the income of the Trustee), incurred by it arising
        out of or 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 indemnity. The Company
        need
        not pay for any settlement effected without its prior written consent, which
        shall not be unreasonably withheld. Anything in this Indenture to the contrary
        notwithstanding, in no event shall the Trustee be liable for special, indirect
        or consequential loss or damage of any kind whatsoever (including but not
        limited to lost profits), even if the Trustee has been advised of the likelihood
        of such loss or damage and regardless of the form of action. 

       

      
        
          
          

        

        
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      (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)    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 clause (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. If
        the
        Company fails to promptly appoint a successor Trustee, the Trustee shall
        have
        the right to choose a qualified Trustee as successor, and the Company shall
        appoint such successor as 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 30 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 (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. 

       

      
        
          
          

        

        
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      (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 8. 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
        9


      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 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: 

       

      
        
          
          

        

        
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      (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 have
        become
        due and payable,

       

      provided,
        that

       

      (1)    the
        Company has deposited with the Trustee, a Paying Agent (other than the Company
        or any of its Affiliates) or a Conversion Agent, if applicable, immediately
        available funds in trust for the purpose of and in an amount sufficient to
        pay
        and discharge all indebtedness and obligations related to such Securities
        not
        theretofore delivered to the Trustee for cancellation, for principal and
        interest (including Additional Interest, if any) to the date of such
        deposit;

       

      (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 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 4, 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 4, and this Article
        9,
        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 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.
        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. 

       

      (a)    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. 

       

      
        
          
          

        

        
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      Section
        9.04. Reinstatement.
        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 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.

       

      ARTICLE
        10 

      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 8; 

       

      (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 rights of the Holders in any material respect. 

       

      Section
        10.02. With
        Consent of Holders.
        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:

       

      
        
          
          

        

        
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      (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 any Additional
        Interest 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 or Fundamental Change Purchase Price (including any
        Make
        Whole Premium payable) (as applicable) with respect to any of the Securities,
        or
        any Additional Interest, or purchase pursuant to Article 3, with respect
        to any
        Security; 

       

      (5)    make
        any
        change that adversely affects the conversion rights of a Holder in any material
        respect other than as provided herein; 

       

      (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;
        

       

      (9)    except
        as
        otherwise permitted or contemplated by Section 4.10, adversely affect the
        conversion rights of the Securities; or 

       

      (10)   change
        the percentage in aggregate principal amount of Securities outstanding necessary
        to modify or amend this Indenture or to waive any past Default or otherwise
        change the provisions in this Indenture that relate to modifying or amending
        this Indenture. 

       

      (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
        or
        Event of Default under this Indenture and its consequences, except an uncured
        failure to pay when due the principal amount, accrued and unpaid interest,
        accrued and unpaid Additional Interest or Fundamental Change Purchase Price,
        or
        in the obligation to deliver Common Stock or cash, if any and as applicable,
        or
        in respect of any provision which under this Indenture cannot be modified
        or
        amended without the consent of the Holder of each outstanding Security affected.
        

       

      
        
          
          

        

        
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      (c)    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.
        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.

       

      (a)    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 10 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 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 10, 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.

       

      
        
          
          

        

        
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      ARTICLE
        11 

      SUBORDINATION

       

      Section
        11.01. Agreement
        to Subordinate.
        The Company covenants and agrees, and each Holder by accepting a Security
        likewise covenants and agrees, that all Securities shall be issued subject
        to
        the provisions of this Article 11; and each Person holding any Security,
        whether
        upon original issue or upon transfer, assignment or exchange thereof, accepts
        and agrees to be bound by such provisions. 

       

      The
        payment of the principal of, premium, if any, interest, and Additional Interest,
        if any, on all Securities (including, but not limited to, the Fundamental
        Change
        Purchase Price with respect to the Securities subject to repurchase in
        accordance with Article 3 as provided in this Indenture) issued hereunder
        shall,
        to the extent and in the manner hereinafter set forth, be subordinated and
        subject in right of payment to the prior payment of all Senior Indebtedness,
        whether outstanding at the date of this Indenture or thereafter incurred,
        in
        full in cash or payment satisfactory to the holders of Senior
        Indebtedness.

       

      No
        provision of this Article 11 shall prevent the occurrence of any Default
        or
        Event of Default hereunder.

       

      Section
        11.02. Payment
        to Holders.
        No payment shall be made with respect to the principal of, or premium, if
        any,
        interest and Additional Interest, if any, on the Securities (including, but
        not
        limited to, the Fundamental Change Purchase Price with respect to the Securities
        subject to repurchase in accordance with Article 3 as provided in this
        Indenture), and no repurchase or retirement of the Securities shall occur
        and no
        deposit shall be made pursuant to Article 9 at a time when such deposited
        amounts would not otherwise be permitted under this Article 11, other than
        through the delivery of Common Stock (but not the cash portion of the Company’s
        conversion obligation) in respect of the conversion of Securities if:


       

      (a)    a
        default
        in the payment of principal, premium, interest, rent or other obligations
        due on
        any Senior Indebtedness occurs and is continuing and the Trustee receives
        notice
        of such default (or, in the case of Senior Indebtedness for which there is
        a
        period of grace, in the event of such a default that continues beyond the
        period
        of grace, if any, specified in the instrument or lease evidencing such Senior
        Indebtedness), unless and until such default shall have been cured or waived
        by
        the appropriate holders of the Senior Indebtedness or shall have ceased to
        exist; or

       

      (b)    a
        default, other than a payment default, on any Designated Senior Indebtedness
        occurs and is continuing that then permits holders of such Designated Senior
        Indebtedness to accelerate the maturity of all or any portion of such Designated
        Senior Indebtedness (or would permit such holders to so accelerate with the
        giving of notice or the passage of time or both) and the Trustee receives
        a
        notice of the default (a “Payment Blockage Notice”) from a Representative or
        holder of such Designated Senior Indebtedness or the Company.

       

      Subject
        to the provisions of Section 11.05, if the Trustee receives any Payment Blockage
        Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice
        shall
        be effective for purposes of this Section unless and until at least 365 days
        shall have elapsed since the initial effectiveness of the immediately prior
        Payment Blockage Notice. No nonpayment default that existed or was continuing
        on
        the date of delivery of any Payment Blockage Notice to the Trustee (unless
        such
        default was waived, cured or otherwise ceased to exist and thereafter
        subsequently reoccurred) shall be, or be made, the basis for a subsequent
        Payment Blockage Notice, whether or not within a period of 365 consecutive
        days.


       

      
        
          
          

        

        
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      Unless
        this Article 11 otherwise prohibits payments on or distributions in respect
        of
        the Securities at the time of such payments or distributions, the Company
        may
        and shall resume such payments on and distributions:

       

      (A)    in
        the
        case of a default referred to in clause (a) above, the date upon which the
        default is cured or waived by the requisite holders of Senior Indebtedness
        or
        otherwise ceases to exist, or

       

      (B)    in
        the
        case of a default referred to in clause (b) above, the earliest to occur
        of (i)
        the date on which such default is cured or waived or otherwise ceases to
        exist
        or such Designated Senior Indebtedness is discharged or paid in full, (ii)
        179
        days pass after the date on which the applicable Payment Blockage Notice
        is
        received, and (iii) the date such payment blockage period shall have been
        terminated by written notice to the Company or the Trustee from the Person
        initiating such payment blockage period provided that, if the maturity of
        such
        Designated Senior Indebtedness has been accelerated no payment may be made
        on
        the Securities until such default is cured or waived or otherwise ceases
        to
        exist or such Designated Senior Indebtedness is discharged or paid in
        full.

       

      Upon
        any
        payment by the Company, or distribution of assets of the Company of any kind
        or
        character, whether in cash, property or securities, to creditors upon any
        dissolution or winding-up or liquidation or reorganization of the Company
        (whether voluntary or involuntary) or in bankruptcy, insolvency, receivership
        or
        similar proceedings, all amounts due or to become due upon all Senior
        Indebtedness shall first be paid in full in cash, or other payment satisfactory
        to the holders of Senior Indebtedness, before any payment is made on account
        of
        the principal of, premium, if any, interest or Additional Interest, if any,
        on
        the Securities (including, but not limited to, the Fundamental Change Purchase
        Price with respect to the Securities subject to repurchase in accordance
        with
        Article 3 as provided in this Indenture); and upon any such dissolution or
        winding-up or liquidation or reorganization of the Company or bankruptcy,
        insolvency, receivership or other proceeding, any payment by the Company,
        or
        distribution of assets of the Company of any kind or character, whether in
        cash,
        property or securities, to which the Holders or the Trustee would be entitled,
        except for the provision of this Article 11, shall (except as aforesaid)
        be paid
        by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
        agent or other Person making such payment or distribution, or by the Holders
        or
        by the Trustee under this Indenture if received by them or it, directly to
        the
        holders of Senior Indebtedness (pro rata to such holders on the basis of
        the
        respective amounts of Senior Indebtedness held by such holders, or as otherwise
        required by law or a court order) or their Representative or Representatives,
        as
        their respective interests may appear, to the extent necessary to pay all
        Senior
        Indebtedness in full in cash, or other payment satisfactory to the holders
        of
        Senior Indebtedness, after giving effect to any concurrent payment or
        distribution to or for the holders of Senior Indebtedness, before any payment
        or
        distribution is made to the Holders or to the Trustee.

       

      
        
          
          

        

        
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      For
        purposes of this Article 11, the words, “cash, property or securities” shall not
        be deemed to include shares of stock of the Company as reorganized or
        readjusted, or securities of the Company or any other corporation provided
        for
        by a plan of reorganization or readjustment, the payment of which is
        subordinated at least to the extent provided in this Article 11 with respect
        to
        the Securities to the payment of all Senior Indebtedness which may at the
        time
        be outstanding; provided that (i) the Senior Indebtedness is assumed by the
        new
        corporation, if any, resulting from any reorganization or readjustment, and
        (ii)
        the rights of the holders of Senior Indebtedness (other than leases which
        are
        not assumed by the Company or the new corporation, as the case may be) are
        not,
        without the consent of such holders, altered by such reorganization or
        readjustment. The consolidation of the Company with, or the merger of the
        Company into, another corporation or the liquidation or dissolution of the
        Company following the conveyance, transfer, sale, lease or other disposition
        of
        its property as an entirety, or substantially as an entirety, to another
        corporation upon the terms and conditions provided for in Article 6 shall
        not be
        deemed a dissolution, winding-up, liquidation or reorganization for the purposes
        of this Section 11.02 if such other corporation shall, as a part of such
        consolidation, merger, conveyance, transfer, sale, lease or other disposition,
        comply with the conditions stated in Article 6.

       

      In
        the
        event of the acceleration of the Securities because of an Event of Default,
        no
        payment or distribution shall be made to the Trustee or any Holders in respect
        of the principal of, premium, if any, interest or Additional Interest, if
        any,
        on the Securities by the Company (including, but not limited to, the Fundamental
        Change Purchase Price with respect to the Securities subject to repurchase
        in
        accordance with Article 3 as provided in this Indenture), except payments
        and
        distributions made by the Trustee as permitted by Section 11.05, until all
        Senior Indebtedness has been paid in full in cash or other payment satisfactory
        to the holders of Senior Indebtedness 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 Indebtedness of such acceleration.

       

      In
        the
        event that, notwithstanding the foregoing provisions, any payment or
        distribution of assets of the Company of any kind or character, whether in
        cash,
        property or securities (including, without limitation, by way of setoff or
        otherwise), prohibited by the provisions of this Article 11, shall be received
        by the Trustee or any of the Holders before all Senior Indebtedness is paid
        in
        full, in cash or other payment satisfactory to the holders of Senior
        Indebtedness, or provision is made for such payment thereof in accordance
        with
        its terms in cash or other payment satisfactory to the holders of Senior
        Indebtedness, such payment or distribution shall be held in trust for the
        benefit of and shall be paid over or delivered to the holders of Senior
        Indebtedness or their Representative or Representatives, as their respective
        interests may appear, as calculated by the Company.

       

      Nothing
        in this Section 11.02 shall apply to claims of, or payments to, the Trustee
        under or pursuant to Section 8.07. This Section 11.02 shall be subject to
        the
        further provisions of Section 11.05.

       

      Section
        11.03. Subrogation
        of Securities.
        After the payment in full, in cash or other payment satisfactory to the holders
        of Senior Indebtedness, of all Senior Indebtedness (and all commitments with
        respect to such Senior Indebtedness have terminated or expired), the rights
        of
        the Holders shall be subrogated to the extent of the payments or distributions
        made to the holders of such Senior Indebtedness pursuant to the provisions
        of
        this Article 11 (equally and ratably with the holders of all indebtedness
        of the
        Company which by its express terms is subordinated to other indebtedness
        of the
        Company to substantially the same extent as the Securities are subordinated
        and
        is entitled to like rights of subrogation) to the rights of the holders of
        Senior Indebtedness to receive payments or distributions of cash, property
        or
        securities of the Company applicable to the Senior Indebtedness until the
        principal, premium, if any, interest or Additional Interest, if any, on the
        Securities shall be paid in full in cash or other payment satisfactory to
        the
        holders of Senior Indebtedness; and, for the purposes of such subrogation,
        no
        payments or distributions to the holders of the Senior Indebtedness of any
        cash,
        property or securities to which the Holders or the Trustee would be entitled
        except for the provisions of this Article 11, and no payment over pursuant
        to
        the provisions of this Article 11, to or for the benefit of the holders of
        Senior Indebtedness by Holders or the Trustee, shall, as between the Company,
        its creditors other than holders of Senior Indebtedness, and the Holders,
        be
        deemed to be a payment by the Company to or on account of the Senior
        Indebtedness; and no payments or distributions of cash, property or securities
        to or for the benefit of the Holders pursuant to the subrogation provisions
        of
        this Article 11, which would otherwise have been paid to the holders of Senior
        Indebtedness, shall be deemed to be a payment by the Company to or for the
        account of the Securities. It is understood that the provisions of this Article
        11 are and are intended solely for the purposes of defining the relative
        rights
        of the Holders, on the one hand, and the holders of the Senior Indebtedness,
        on
        the other hand.

       

      
        
          
          

        

        
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      Nothing
        contained in this Article 11 or elsewhere in this Indenture or in the Securities
        is intended to or shall impair, as among the Company, its creditors other
        than
        the holders of Senior Indebtedness, and the Holders, the obligation of the
        Company, which is absolute and unconditional, to pay to the Holders the
        principal of (and premium, if any), interest or Additional Interest, if any,
        on
        the Securities as and when the same shall become due and payable in accordance
        with their terms, or is intended to or shall affect the relative rights of
        the
        Holders and creditors of the Company other than the holders of the Senior
        Indebtedness, nor shall anything herein or therein prevent the Trustee or
        the
        Holders from exercising all remedies otherwise permitted by applicable law
        during the continuance of an Event of Default under this Indenture, subject
        to
        the rights, if any, under this Article 11 of the holders of Senior Indebtedness
        in respect of cash, property or securities of the Company received upon the
        exercise of any such remedy.

       

      Upon
        any
        payment or distribution of assets of the Company referred to in this Article
        11,
        the Trustee, subject to the provisions of Section 8.01, and the Holders shall
        be
        entitled to conclusively rely upon any order or decree made by any court
        of
        competent jurisdiction in which such bankruptcy, dissolution, winding-up,
        liquidation or reorganization proceedings are pending, or a certificate of
        the
        receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
        making such payment or distribution, delivered to the Trustee or to the Holders,
        for the purpose of ascertaining the Persons entitled to participate in such
        distribution, the holders of the Senior Indebtedness and other indebtedness
        of
        the Company, the amount thereof or payable thereon and all other facts pertinent
        thereto or to this Article 11.

       

      Section
        11.04. Authorization
        to Effect Subordination.
        Each Holder by accepting a Security authorizes and directs the Trustee on
        such
        Holder’s behalf to take such action as may be necessary or appropriate to
        effectuate, as between the Holders and the holders of the Senior Indebtedness,
        the subordination as provided in this Article 11 and as may be requested
        in
        writing and as prepared by the holders of Senior Indebtedness at their expense,
        and each Holder appoints the Trustee to act as such 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 11.03 hereof at least 30 days before the expiration of the time to
        file
        such claim, the holders of any Senior Indebtedness or their Representatives
        are
        hereby authorized to file an appropriate claim for and on behalf of the Holders
        and each Holder hereby appoints the holders of Senior Indebtedness or their
        respective Representatives to act as its attorney-in-fact for any and all
        such
        purposes.

       

      
        
          
          

        

        
          67

          
            

          

        

        
          
          

        

      

       

      Section
        11.05. Notice
        to Trustee.
        The Company shall give prompt written notice in the form of an Officers’
Certificate to a Responsible Officer of the Trustee and to any Paying Agent
        of
        any fact known to the Company which would prohibit the making of any payment
        of
        monies to or by the Trustee or any Paying Agent in respect of the Securities
        pursuant to the provisions of this Article 11. Notwithstanding the provisions
        of
        this Article 11 or any other provision of this Indenture, the Trustee shall
        not
        be charged with knowledge of the existence of any facts which would prohibit
        the
        making of any payment of monies to or by the Trustee in respect of the
        Securities pursuant to the provisions of this Article 11, unless and until
        a
        Responsible Officer of the Trustee shall have received written notice thereof
        at
        the office of the Trustee specified in Section 12.02 hereof from the Company
        (in
        the form of an Officers’ Certificate) or a Representative or a holder or holders
        of Senior Indebtedness; and before the receipt of any such written notice,
        the
        Trustee, subject to the provisions of Section 8.01, shall be entitled in
        all
        respects to assume that no such facts exist; provided that with respect to
        any
        such monies that may become payable for any purpose (including, without
        limitation, the payment of the principal of, or premium, if any, or interest
        on
        any Security) unless the Trustee shall have received, on a date not less
        than
        one Business Day immediately prior to the date upon which by the terms hereof
        such monies shall become payable, the notice provided for in this Section
        11.05,
        then, anything in the first two paragraphs of Section 11.02 contained to
        the
        contrary notwithstanding, the Trustee shall have full power and authority
        to
        receive such monies and to apply the same to the purpose for which they were
        received, and shall not be affected by any notice to the contrary which may
        be
        received by it on or after such prior date; provided further that if the
        Trustee
        shall receive any such notice on the date upon which by the terms hereof
        such
        monies shall become payable, the Trustee may, in its reasonable discretion,
        waive the time for notice provided in the foregoing proviso. Nothing shall
        prevent any payment by the Trustee to the holders of monies deposited with
        it
        pursuant to Article 9, and any such payment shall not be subject to the
        provisions of Article 11; provided that, at the time of any such deposit,
        such
        deposit and payment were permitted under this Article 11 without giving effect
        to the first clause of this sentence.

       

      The
        Trustee, subject to the provisions of Section 8.01, shall be entitled to
        conclusively rely on the delivery to it of a written notice by a Representative
        or a Person representing himself to be a holder of Senior Indebtedness to
        establish that such notice has been given by a Representative or a holder
        of
        Senior Indebtedness. In the event that the Trustee determines in good faith
        that
        further evidence is required with respect to the right of any Person as a
        holder
        of Senior Indebtedness to participate in any payment or distribution pursuant
        to
        this Article 11, the Trustee may request such Person to furnish evidence
        to the
        reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
        held by such Person, the extent to which such Person is entitled to participate
        in such payment or distribution and any other facts pertinent to the rights
        of
        such Person under this Article 11, and if such evidence is not furnished
        the
        Trustee may defer any payment to such Person pending judicial determination
        as
        to the right of such Person to receive such payment. 

       

      
        
          
          

        

        
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      Section
        11.06. Trustee’s
        Relation to Senior Indebtedness.
        The Trustee in its individual capacity shall be entitled to all the rights
        set
        forth in this Article 11 in respect of any Senior Indebtedness at any time
        held
        by it, to the same extent as any other holder of Senior Indebtedness, and
        nothing in Section 8.11 or elsewhere in this Indenture shall deprive the
        Trustee
        of any of its rights as such holder. Nothing in this Article 11 shall apply
        to
        the claims of, or payment to, the Trustee under or pursuant to Section
        8.07.

       

      With
        respect to the holders of Senior Indebtedness, the Trustee undertakes to
        perform
        or to observe only such of its covenants and obligations as are specifically
        set
        forth in this Article 11, and no implied covenants or obligations with respect
        to the holders of Senior Indebtedness 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 Indebtedness and, subject to the provisions of Section
        8.01,
        the Trustee shall not be liable to any holder of Senior Indebtedness if it
        shall
        pay over or deliver to Holders, the Company or any other Person money or
        assets
        to which any holder of Senior Indebtedness shall be entitled by virtue of
        this
        Article 11 or otherwise.

       

      Section
        11.07. No
        Impairment of Subordination.
        No right of any present or future holder of any Senior Indebtedness to enforce
        subordination as herein provided shall at any time in any way be prejudiced
        or
        impaired by any act or failure to act on the part of the Company or by any
        act
        or failure to act, in good faith, by any such holder, or by any noncompliance
        by
        the Company with the terms, provisions and covenants of this Indenture,
        regardless of any knowledge thereof which any such holder may have or otherwise
        be charged with.

       

      Section
        11.08. Certain
        Conversions Deemed Payment.
        For the purposes of this Article 11 only, (a) the issuance and delivery of
        Junior Securities upon conversion of Securities in accordance with Article
        4
        shall not be deemed to constitute a payment or distribution on account of
        the
        principal of (or premium, if any), interest or Additional Interest, if any,
        on
        the Securities or on account of the purchase or other acquisition of Securities,
        and (b) the payment, issuance or delivery of cash (except in satisfaction
        of
        fractional shares), securities (other than Junior Securities) or other property
        upon conversion of a Security shall be deemed to constitute payment on account
        of the principal of such Security, the payment, issuance and delivery of
        such
        cash being made subject to the subordination provisions of this Article 11.
        For
        the purposes of this Section 11.08, the term “Junior Securities” means (1)
        shares of any stock of any class of the Company or (2) securities of the
        Company
        which are subordinated in right of payment to all Senior Indebtedness which
        may
        be outstanding at the time of issuance or delivery of such securities to
        substantially the same extent as, or to a greater extent than, the Securities
        are so subordinated as provided in this Article 11. Nothing contained in
        this
        Article 11 or elsewhere in this Indenture or in the Securities is intended
        to or
        shall impair, as among the Company, its creditors other than holders of Senior
        Indebtedness and the Holders, the right, which is absolute and unconditional,
        of
        the Holders to convert such Securities in accordance with Article
        4.

       

      
        
          
          

        

        
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      Section
        11.09. Article
        Applicable to Paying Agents.
        If 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 shall (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 in addition
        to
        or in place of the Trustee; provided, however, that the first paragraph of
        Section 11.05 shall not apply to the Company or any Affiliate of the Company
        if
        it or such Affiliate acts as Paying Agent. 

       

      Section
        11.10. Senior
        Indebtedness Entitled to Rely.
        The holders of Senior Indebtedness shall have the right to rely upon this
        Article 11, and no amendment or modification of the provisions of this Article
        11 that adversely affect the rights and interests of such holders shall be
        effective as to such holders unless such holders shall have agreed in writing
        thereto. Each Holder by accepting a Security acknowledges and agrees that
        the
        provisions of Article 11 are, and are intended to be, an inducement and
        consideration to each holder of Senior Indebtedness (whether such Senior
        Indebtedness was acquired or created before or after the issuance of the
        Securities) to acquire and hold, or to continue to hold, such Senior
        Indebtedness, and such holder of Senior Indebtedness shall be deemed
        conclusively to have relied on the provisions of this Article 11 in acquiring
        and continuing to hold such Senior Indebtedness.

       

      Section
        11.11. Reinstatement.
        To the extent the payment of or distribution in respect of any Senior
        Indebtedness (whether by or on behalf of the Company as proceeds of security
        or
        enforcement of any right of setoff or otherwise) is declared to be fraudulent
        or
        preferential, set aside or required to be paid to any receiver, trustee in
        bankruptcy, liquidating trustee, agent or similar Person under any bankruptcy,
        insolvency, receivership, fraudulent conveyance or similar law, then if such
        payment or distribution is recovered by, or paid over to, such receiver,
        trustee
        in bankruptcy, liquidating trustee, agent or similar Person, the Senior
        Indebtedness or part thereof originally intended to be satisfied shall be
        deemed
        to be reinstated and outstanding as if such payment had not occurred.


       

      Section
        11.12. Actions
        by Holders of Senior Indebtedness.
        The holders of the Senior Indebtedness may, at any time and from time to
        time,
        without the consent of or notice to the Trustee or the Holders, without
        incurring responsibility to the Holders and without impairing or releasing
        the
        subordination provided in this Indenture or the obligations of the Holders
        hereunder to the holders of the Senior Indebtedness, do any one or more of
        the
        following: 

       

      (a)    change
        the manner, place or terms of payment or extend the time of payment of, or
        renew
        or alter, the Senior Indebtedness or any instrument evidencing the same or
        any
        agreement under which any Senior Indebtedness is outstanding or secured;
        

       

      (b)    sell,
        exchange, release or otherwise deal with any property pledged, mortgaged
        or
        otherwise secured; 

       

      (c)    release
        any Person liable in any manner for the collection of Senior
        Indebtedness;

       

      (d)    exercise
        or refrain from exercising any rights against the Company or any other Person;
        and

       

      
        
          
          

        

        
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      (e)    take
        any
        other action in the reasonable business judgment of the holders of Senior
        Indebtedness. 

       

      ARTICLE
        12

      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:


       

      New
        River
        Pharmaceuticals Inc.

      1881
        Grove Avenue

      Radford,
        Virginia 24141

      Attention:
        Controller

      Fax:
        (540) 633-7939

       

      with
        a
        copy to:


       

      Hunton
        & William LLP

      Attention:
        David I. Meyers

      Riverfront
        Plaza, East Tower

      951
        Byrd
        Street

      Richmond,
        Virginia 23219

      Fax:
        (804) 343-8218

       

      if
        to the
        Trustee, to:

       

      Wilmington
        Trust Company

      Rodney
        Square North

      1100
        North Market Street

      Wilmington,
        Delaware 19890-1615

      Attention:
        Corporate Capital Markets

      (New
        River Pharmaceuticals Inc. 3.50% Convertible Subordinated 

      Notes
        due
        2013)

      Fax:
        (302) 636-4145


      
        
          
          

        

        
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      with
        a
        copy to:


       

      Sullivan
        & Worcester LLP

      Attention:
        Robert L. Clare, III

      1290
        Avenue of the Americas

      New
        York,
        New York 10104

      Fax:
        (212) 660-3001

       

      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 Holder.
        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.
        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. 

       

      (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; 


      
        
          
          

        

        
          72

          
            

          

        

        
          
          

        

      

       

      (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 are authorized or obligated
        to close. If a payment date is a Legal Holiday, payment shall be made on
        the
        next succeeding day that is not a Legal Holiday, and no interest shall accrue
        for the intervening period. If 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 15 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. 


      
        
          
          

        

        
          73

          
            

          

        

        
          
          

        

      

       

      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.
        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]


      
        
          
          

        

        
          74

          
            

          

        

        
          
          

        

      


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

       

      
        	 	
                NEW
                  RIVER PHARMACEUTICALS INC.

              
	 	
                By:

              	
                /s/
                  Krish S. Krishnan 

              
	 	 	
                Name:

              	
                Krish
                  S. Krishnan

              
	 	 	
                Title:

              	
                Chief
                  Operating Officer, Chief Financial Officer and
                  Secretary

              


      

       

       

      
        	 	WILMINGTON
                TRUST COMPANY
	 	 	 
	 	
                By:

              	
                s/s
                  Kristen L. Moore 

              
	 	 	
                Name:
                  Kristen L. Moore

              
	 	 	
                Title:
                  Senior Financial Services Officer

              


      

       

      
        
          
          

        

        
          75

          
            

          

        

        
          
          

        

      


      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 A 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.1 

       

      THIS
        SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
        SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
        (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
        SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY
        INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
        TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
        OF SUCH
        REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
        REGISTRATION UNDER THE SECURITIES ACT.2 

       

      BY
        ITS
        ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
        SUCH
        SECURITY PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
        ISSUE DATE HEREOF AND THE LAST DATE ON WHICH NEW RIVER PHARMACEUTICALS INC.
        (THE
“COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
        ANY PREDECESSOR OF SUCH SECURITY) (THE “RESALE RESTRICTION TERMINATION DATE”)
        ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
        REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
        ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
        RULE
        144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
        AS
        DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
        OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
        IS
        BEING MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANY OTHER AVAILABLE
        EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
        TO
        THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
        PURSUANT TO CLAUSE (D) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
        REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
        INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES,
        TO
        REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
        SIDE
        OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
        THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
        RESTRICTION TERMINATION DATE.3 

      ____________________

       

      
        	1	
                This
                  paragraph should be included only if the Security is a Global
                  Security.

              


      

       

      
        	2	
                This
                  paragraph should be included only if the Security is a Restricted
                  Security.

              


      

       

      
        
          	3	
                  This
                    paragraph should be included only if the Security is a Restricted
                    Security.

                


        

         

      

      
        
          
          

        

        
          A
            - 1

          
            

          

        

        
          
          

        

      

       

      NEW
        RIVER
        PHARMACEUTICALS INC.

      3.50%
        Convertible Subordinated Notes due 2013

       

      
        	
                No. o

              	
                CUSIP:
                  648468AA4

              


      

       

      New
        River
        Pharmaceuticals Inc., a Virginia corporation, promises to pay to Cede & Co.
        or registered assigns the principal amount of one hundred twenty five million
        dollars ($125,000,000) on August 1, 2013.

       

      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:
        July 25, 2006

       

      SIGNATURE
        PAGE FOLLOWS

       

      
        
          
          

        

        
          A
            - 2

          
            

          

        

        
          
          

        

      


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

       

      
        	 	
                NEW
                  RIVER PHARMACEUTICALS INC.

                 

              
	 	
                By:

              	  

	 	 	
                Name:

              
	 	 	
                Title:

              


      

      


       

      Dated:
        July 25, 2006

       

      Trustee’s
        Certificate of Authentication: This is one of the Securities referred to
        in the
        within-mentioned Indenture.

       

      WILMINGTON
        TRUST COMPANY

      as
        Trustee

       

      
        	
                By:

              	  

	 	
                Authorized
                  Signatory

              


      


      
        
          
          

        

        
          A
            - 3

          
            

          

        

        
          
          

        

      


      [FORM
        OF
        REVERSE SIDE OF SECURITY) 

       

      NEW
        RIVER
        PHARMACEUTICALS INC.

      CONVERTIBLE
        SUBORDINATED NOTES DUE 2013 

       

      1.    
INTEREST

       

      New
        River
        Pharmaceuticals Inc., a Virginia 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
        3.50% per annum. The Company shall pay interest semiannually on February
        1 and
        August 1 of each year (each, an “Interest Payment Date”), commencing February 1,
        2007. Each payment of interest will include interest accrued through the
        day
        before the relevant Interest Payment Date (or purchase date). Cash interest
        will
        be computed on the basis of a 360-day year comprised of twelve 30-day months.
        Any payment required to be made on a day that is not a Business Day shall
        be
        made on the next succeeding Business Day. Any reference herein to interest
        accrued or payable as of any date shall include any Additional Interest accrued
        or payable on such date as provided in the Registration Rights
        Agreement.

       

      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
        15
        or July 15, 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 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,
        Wilmington Trust Company (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 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. 

       

      
        
          
          

        

        
          A
            - 4

          
            

          

        

        
          
          

        

      

       

      4.    
INDENTURE,
        LIMITATIONS

       

      This
        Security is one of a duly authorized issue of Securities of the Company
        designated as its 3.50% Convertible Subordinated Notes Due 2013 (the
“Securities”), issued under an Indenture dated as of July 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.
        Capitalized terms not otherwise defined herein have the meaning ascribed
        to such
        terms in the Indenture.

       

      The
        Securities are unsecured, subordinated obligations of the Company limited
        to
        $125,000,000 aggregate principal amount ($143,750,000 aggregate principal
        amount
        if the Initial Purchasers exercise their over-allotment option in full).
        The
        Indenture does not limit other debt of the Company, secured or unsecured.
        

       

      5.    
PURCHASE
        OF SECURITIES OF HOLDERS’ OPTION UPON A FUNDAMENTAL CHANGE

       

      If
        a
        Fundamental change occurs prior to the Final Maturity Date, 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 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,
        and
        accrued and unpaid Additional Interest, if any, to, but excluding, the
        Fundamental Change Purchase Date. The Holder shall have the right to withdraw
        any Fundamental Change 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 Fundamental Change Purchase
        Date
        by delivering a written notice of withdrawal to the Paying Agent in accordance
        with the terms of the Indenture.

       

      6.    
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 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

              


      

       

      
        	 	
                ·

              	
                if
                  the Conversion Value is greater than $1,000, a number of shares
                  of Common
                  Stock equal to the sum of the Daily Share Amounts, for each of
                  the twenty
                  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;

              


      

       

      
        
          
          

        

        
          A
            - 5

          
            

          

        

        
          
          

        

      

       

      provided
        that in no event shall the aggregate number of shares of Common Stock to
        be
        issued pursuant to the foregoing clause, per $1,000 principal amount of
        Securities, exceed the Aggregate Share Cap, as defined in the Indenture,
        without
        taking into account any election by the Company to deliver cash in lieu of
        all
        or a portion of the shares of Common Stock otherwise deliverable as set forth
        in
        the Indenture.

       

      The
        Conversion Rate on any Securities surrendered in connection with a Fundamental
        Change may be increased by an amount, if any, determined in accordance with
        Section 4.01(j) of the Indenture. 

       

      7.    
SUBORDINATION

       

      To
        the
        extent provided in the Indenture, the Securities are subordinated to Senior
        Indebtedness, as defined in the Indenture, of the Company. To the extent
        provided in the Indenture, Senior Indebtedness must be paid in full before
        the
        Securities may be paid. The Company agrees, and each Securityholder by accepting
        a Security agrees, to the subordination provisions contained in the Indenture
        and authorizes the Trustee to give it effect and appoints the Trustee as
        attorney-in-fact for such purpose.

       

      8.    
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.

       

      9.    
PERSONS
        DEEMED OWNERS

       

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

       

      10.    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. 

       

      11.    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
        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. 

       

      
        
          
          

        

        
          A
            - 6

          
            

          

        

        
          
          

        

      

       

      12.    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.

       

      13.    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 Fundamental Change Purchase
        Price of any Security, when the same becomes due and payable whether at the
        Final Maturity Date, upon repurchase, acceleration or otherwise and regardless
        of whether such payment is permitted pursuant to the subordination provisions
        under Article 11 of the Indenture; or 

       

      (2)    the
        Company shall fail to pay an installment of cash interest or Additional
        Interest, if any, on any of the Securities, which failure continues for 30
        days
        after the date when due, regardless of whether such payment is permitted
        pursuant to the subordination provisions under Article 11 of the Indenture;
        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, regardless of whether such payment is permitted pursuant to the
        subordination provisions under Article 11 of the Indenture; 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 

       

      
        
          
          

        

        
          A
            - 7

          
            

          

        

        
          
          

        

      

       

      (6)    the
        Company, or any Significant Subsidiary of 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 or any Significant Subsidiary of the Company in
        an
        involuntary case or proceeding or adjudicates the Company or any Significant
        Subsidiary of the Company insolvent or bankrupt;

       

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

       

      (C)    orders
        the winding up or liquidation of the Company or any Significant Subsidiary
        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 clause (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 may, by notice to the Company and
        the
        Trustee, declare the principal amount and accrued and unpaid interest, if
        any,
        and accrued and unpaid Additional 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,
        and such accrued and unpaid Additional Interest, if any, shall be due and
        payable immediately. If an Event of Default specified in clauses (6) or (7)
        above occurs in respect of the Company and is continuing, the principal amount
        and accrued but unpaid interest, if any, and accrued and unpaid Additional
        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.

       

      
        
          
          

        

        
          A
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      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.

       

      14.    TRUSTEE
        DEALINGS WITH THE COMPANY

       

      Wilmington
        Trust Company, 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.

       

      15.    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.

       

      
        
          
          

        

        
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      16.    AUTHENTICATION

       

      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.

       

      17.    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.

       

      18.    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.

       

      The
        Company will furnish to any Holder, upon written request and without charge,
        a
        copy of the Indenture. Requests may be made to: New River Pharmaceuticals
        Inc.,
        1881 Grove Avenue, Radford, Virginia, 24141, Attention: Controller, facsimile:
        (540) 633-7939.

       

      
        
          
          

        

        
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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 soc. sec. or tax I.D. no.)

       

       

        
          

        

         

        
          

        

         

        
          

        

      

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

       

      and
        irrevocably appoint

       

      
        

      

      agent
        to
        transfer this Security on the books of the Company. The agent may substitute
        another to act for him 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 a 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 soc. sec. or tax I.D. no.)

       

       

        
          

        

         

        
          

        

         

        
          

        

      

      (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: New
        River
        Pharmaceuticals Inc.

       

      The
        undersigned registered owner of this Security hereby irrevocably acknowledges
        receipt of a notice from New River Pharmaceuticals Inc. (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 Purchase
        Price,
        together with accrued and unpaid interest and Additional Interest, if any,
        to,
        but excluding, such date, to the registered Holder hereof.

       

      
        	
                Date:
                  

              	  
	 	 
	 	 	 	
                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 redeemed (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.

       

      
        
          
          

        

        
          A
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      SCHEDULE
        OF EXCHANGES OF SECURITIES(1)

       

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

       

      
        	
                Principal
                  Amount of this Global Note Following Such Decrease Date of Exchange
                  (or
                  Increase)

              	 	
                Authorized
                  Signatory of Securities Custodian

              	 	
                Amount
                  of Decrease in Principal Amount of this Global
                  Note

              	 	
                Amount
                  of Increase in Principal Amount of this Global
                  Note

              
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 


      

      
         

        
          

        

      

      1. This
        schedule should be included only if the Security is a Global
        Security.


      
        
          
          

        

        
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      CERTIFICATE
        TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

       

      OF
        TRANSFER OF RESTRICTED SECURITIES

       

      Re: 3.50%
        Convertible Subordinated Notes Due 2013 (the “Securities”) of New River
        Pharmaceuticals Inc.

       

      This
        certificate relates to $        
principal amount of Securities owned in (check applicable box)
       book-entry or
           definitive form by
                          
(the “Transferor”).

       

      The
        Transferor has requested a Registrar or the Trustee to exchange or register
        the
        transfer of such Securities.

       

      In
        connection with such request and in respect of each such Security, the
        Transferor does hereby certify that the Transferor is familiar with transfer
        restrictions relating to the Securities as provided in Section 2.12 of the
        Indenture dated as of July 25, 2006 between New River Pharmaceuticals Inc.
        and
        Wilmington Trust Company, as trustee (the “Indenture”), and the transfer of such
        Security is being made pursuant to an effective registration statement under
        the
        Securities Act of 1933, as amended (the “Securities Act”) (check applicable
        box), or the transfer or exchange, as the case may be, of such Security does
        not
        require registration under the Securities Act because (check applicable box):
        

       

      
        	
                _____

              	 	
                Such
                  Security is being transferred pursuant to an effective registration
                  statement under the Securities Act.

                 

              
	
                _____

              	 	
                Such
                  Security is being acquired for the Transferor’s own account, without
                  transfer.

                 

              
	
                _____

              	 	
                Such
                  Security is being transferred to the Company or a Subsidiary (as
                  defined
                  in the Indenture) of the Company.

                 

              
	
                 

              	 	
                Such
                  security is being transferred to a person the Transferor reasonably
                  believes is a “qualified institutional buyer” (as defined in Rule 144A or
                  any successor provision thereto (“Rule 144A”) under the Securities Act)
                  that is purchasing for its own account or for the account of a
“qualified
                  institutional buyer”, in each case to whom notice has been given that the
                  transfer is being made in reliance on such Rule 144A, and in each
                  case in
                  reliance on Rule 144A.

                 

              
	
                _____

              	 	
                Such
                  Security is being transferred pursuant to and in compliance with
                  an
                  exemption from the registration requirements under the Securities
                  Act in
                  accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the
                  Securities Act.

                 

              
	
                _____

              	 	
                Such
                  Security is being transferred to a non-U.S. Person in an offshore
                  transaction in compliance with Rule 904 of Regulation S under the
                  Securities Act (or any successor thereto).

                 

              
	
                _____

              	 	
                Such
                  Security is being transferred pursuant to and in compliance with
                  an
                  exemption from the registration requirements of the Securities
                  Act (other
                  than an exemption referred to above) and as a result of which such
                  Security will, upon such transfer, cease to be a “restricted security”
                  within the meaning of Rule 144 under the Securities
                  Act.

              


      


      
        
          
          

        

        
          A
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      The
        Transferor acknowledges and agrees that, if the transferee will hold any
        such
        Securities in the form of beneficial interests in a Global Note which is
        a
“restricted security” within the meaning of Rule 144 under the Securities Act,
        then such transfer can only be made pursuant to (i) Rule 144A under the
        Securities Act and such transferee must be a “qualified institutional buyer” (as
        defined in Rule 144A) or (ii) Regulation S under the Securities
        Act.

       

      
        	
                Date:
                  

              	  
	 	  

	 	 	 	
                (Insert
                  Name of Transferor)

              


      

       

    

    
    

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      16