Exhibit 4.3


 


EXECUTION COPY


 


KEMET CORPORATION,


WILMINGTON TRUST
COMPANY,


AS TRUSTEE


2.25% CONVERTIBLE
SENIOR NOTES DUE 2026


INDENTURE


DATED AS OF
NOVEMBER 1, 2006


 











CROSS-REFERENCE
TABLE*


	
  TIA Indenture
  Section

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 310

  	
  (a)(1)

  	
   

  	
  12.9

  
	
   

  	
  (a)(2)

  	
   

  	
  12.9

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.**

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  12.9

  
	
   

  	
  (b)

  	
   

  	
  12.8; 12.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section 311

  	
  (a)

  	
   

  	
  12.13

  
	
   

  	
  (b)

  	
   

  	
  12.13

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  Section 312

  	
  (a)

  	
   

  	
  2.5

  
	
   

  	
  (b)

  	
   

  	
  16.3

  
	
   

  	
  (c)

  	
   

  	
  16.3

  
	
  Section 313

  	
  (a)

  	
   

  	
  12.15

  
	
   

  	
  (b)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (b)(2)

  	
   

  	
  12.15

  
	
   

  	
  (c)

  	
   

  	
  12.15; 16.2

  
	
   

  	
  (d)

  	
   

  	
  12.15

  
	
  Section 314

  	
  (a)

  	
   

  	
  9.2; 9.3

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  16.4(a)

  
	
   

  	
  (c)(2)

  	
   

  	
  16.4(a)

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  16.4(b)

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  Section 315

  	
  (a)

  	
   

  	
  12.1(a); 12.1(b)(i)

  
	
   

  	
  (b)

  	
   

  	
  12.14; 16.2

  
	
   

  	
  (c)

  	
   

  	
  12.1(a)

  
	
   

  	
  (d)

  	
   

  	
  12.1(b)

  
	
   

  	
  (e)

  	
   

  	
  11.11

  
	
  Section 316

  	
  (a) (last sentence)

  	
   

  	
  2.9

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  11.5

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  11.4

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  11.7

  
	
   

  	
  (c)

  	
   

  	
  16.5

  
	
  Section 317

  	
  (a)(1)

  	
   

  	
  11.8

  
	
   

  	
  (a)(2)

  	
   

  	
  11.9

  
	
   

  	
  (b)

  	
   

  	
  2.4

  
	
  Section 318

  	
  (a)

  	
   

  	
  16.1

  



 






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


**          N.A. means Not
Applicable.
















TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Definitions and
  Incorporation By Reference

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  SECTION 1.2.

  	
   

  	
  Other Definitions

  	
   

  	
  7

  
	
  SECTION 1.3.

  	
   

  	
  Trust Indenture Act Provisions

  	
   

  	
  8

  
	
  SECTION 1.4.

  	
   

  	
  Rules of Construction

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Securities

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.1.

  	
   

  	
  Form and Dating

  	
   

  	
  9

  
	
  SECTION 2.2.

  	
   

  	
  Execution and Authentication

  	
   

  	
  10

  
	
  SECTION 2.3.

  	
   

  	
  Registrar, Paying Agent and Conversion Agent

  	
   

  	
  11

  
	
  SECTION 2.4.

  	
   

  	
  Paying Agent to Hold Money and Securities in Trust

  	
   

  	
  11

  
	
  SECTION 2.5.

  	
   

  	
  Securityholder Lists

  	
   

  	
  12

  
	
  SECTION 2.6.

  	
   

  	
  Transfer and Exchange

  	
   

  	
  12

  
	
  SECTION 2.7.

  	
   

  	
  Replacement Securities

  	
   

  	
  13

  
	
  SECTION 2.8.

  	
   

  	
  Outstanding Securities

  	
   

  	
  14

  
	
  SECTION 2.9.

  	
   

  	
  Treasury Securities

  	
   

  	
  14

  
	
  SECTION 2.10.

  	
   

  	
  Temporary Securities

  	
   

  	
  14

  
	
  SECTION 2.11.

  	
   

  	
  Cancellation

  	
   

  	
  15

  
	
  SECTION 2.12.

  	
   

  	
  Legend; Additional Transfer and Exchange
  Requirements

  	
   

  	
  15

  
	
  SECTION 2.13.

  	
   

  	
  CUSIP Numbers

  	
   

  	
  21

  
	
  SECTION 2.14.

  	
   

  	
  Ranking

  	
   

  	
  21

  
	
  SECTION 2.15.

  	
   

  	
  Persons Deemed Owners

  	
   

  	
  21

  
	
  SECTION 2.16.

  	
   

  	
  Defaulted Interest

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Redemption

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.1.

  	
   

  	
  Redemption of Securities; Notice to Trustee

  	
   

  	
  22

  
	
  SECTION 3.2.

  	
   

  	
  Selection of Securities to be Redeemed

  	
   

  	
  22

  
	
  SECTION 3.3.

  	
   

  	
  Notice of Redemption

  	
   

  	
  23

  
	
  SECTION 3.4.

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  23

  
	
  SECTION 3.5.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  24

  
	
  SECTION 3.6.

  	
   

  	
  Securities Redeemed in Part

  	
   

  	
  24

  
	
  SECTION 3.7.

  	
   

  	
  Repayment to the Company

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Reserved]

  



 



 -i-
 









 


	
  ARTICLE V

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Put Option

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.1.

  	
   

  	
  Purchase of Securities at Option of the Holder upon
  a Fundamental Change

  	
   

  	
  24

  
	
  SECTION 5.2.

  	
   

  	
  Purchase of Securities at Option of the Holder on
  Specified Dates

  	
   

  	
  28

  
	
  SECTION 5.3.

  	
   

  	
  Effect of Fundamental Change Purchase Notice or
  Option Purchase Notice

  	
   

  	
  30

  
	
  SECTION 5.4.

  	
   

  	
  Deposit of Fundamental Change Purchase Price or
  Option Purchase Price

  	
   

  	
  31

  
	
  SECTION 5.5.

  	
   

  	
  Securities Purchased in Part

  	
   

  	
  31

  
	
  SECTION 5.6.

  	
   

  	
  Repayment to the Company

  	
   

  	
  31

  
	
  SECTION 5.7.

  	
   

  	
  Compliance with Securities Laws upon Purchase of
  Securities

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Reserved]

  	
   

  	
   

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Conversion

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.1.

  	
   

  	
  Conversion Privilege

  	
   

  	
  32

  
	
  SECTION 7.2.

  	
   

  	
  Conversion Procedure

  	
   

  	
  34

  
	
  SECTION 7.3.

  	
   

  	
  Fractional Shares

  	
   

  	
  35

  
	
  SECTION 7.4.

  	
   

  	
  Taxes on Conversion

  	
   

  	
  35

  
	
  SECTION 7.5.

  	
   

  	
  Company to Provide Stock

  	
   

  	
  35

  
	
  SECTION 7.6.

  	
   

  	
  Adjustment of Conversion Rate

  	
   

  	
  35

  
	
  SECTION 7.7.

  	
   

  	
  No Adjustment

  	
   

  	
  39

  
	
  SECTION 7.8.

  	
   

  	
  Other Adjustments

  	
   

  	
  40

  
	
  SECTION 7.9.

  	
   

  	
  Notice of Adjustment

  	
   

  	
  40

  
	
  SECTION 7.10.

  	
   

  	
  [Reserved]

  	
   

  	
  40

  
	
  SECTION 7.11.

  	
   

  	
  Effect of Reclassification, Consolidation, Merger or
  Sale on Conversion Privilege

  	
   

  	
  40

  
	
  SECTION 7.12.

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  41

  
	
  SECTION 7.13.

  	
   

  	
  Option to Satisfy Remaining Conversion Obligation
  with Cash or Combination of Cash and Common Stock

  	
   

  	
  42

  
	
  SECTION 7.14.

  	
   

  	
  Effect of Conversion; Conversion After Record Date

  	
   

  	
  43

  
	
  SECTION 7.15.

  	
   

  	
  Exchange in Lieu of Conversion

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subsidiary
  Guarantee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.1.

  	
   

  	
  Subsidiary Guarantors

  	
   

  	
  44

  
	
  SECTION 8.2.

  	
   

  	
  Subsidiary Guarantors May Consolidate, etc., on Certain
  Terms

  	
   

  	
  45

  
	
  SECTION 8.3.

  	
   

  	
  Release of Subsidiary Guarantors

  	
   

  	
  45

  
	
  SECTION 8.4.

  	
   

  	
  Guaranties

  	
   

  	
  45

  
	
  SECTION 8.5.

  	
   

  	
  Limitation on Liability

  	
   

  	
  46

  
	
  SECTION 8.6.

  	
   

  	
  Successors and Assigns

  	
   

  	
  47

  
	
  SECTION 8.7.

  	
   

  	
  No Waiver

  	
   

  	
  47

  
	
  SECTION 8.8.

  	
   

  	
  Modification

  	
   

  	
  47

  



 



 -ii-
 









 


	
  SECTION
  8.9.

  	
   

  	
  Contribution

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Covenants

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.1.

  	
   

  	
  Payment of Securities

  	
   

  	
  47

  
	
  SECTION 9.2.

  	
   

  	
  Reports and Certain Information

  	
   

  	
  48

  
	
  SECTION 9.3.

  	
   

  	
  Compliance Certificates

  	
   

  	
  48

  
	
  SECTION 9.4.

  	
   

  	
  Maintenance of Corporate Existence

  	
   

  	
  48

  
	
  SECTION 9.5.

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  48

  
	
  SECTION 9.6.

  	
   

  	
  Maintenance of Office or Agency of the Trustee,
  Registrar, Paying Agent and Conversion Agent

  	
   

  	
  48

  
	
  SECTION 9.7.

  	
   

  	
  Notice of Default

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.1.

  	
   

  	
  Company May Consolidate, etc., Only on Certain Terms

  	
   

  	
  49

  
	
  SECTION 10.2.

  	
   

  	
  Successor Substituted

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Default and
  Remedies

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.1.

  	
   

  	
  Events of Default

  	
   

  	
  50

  
	
  SECTION 11.2.

  	
   

  	
  Acceleration

  	
   

  	
  52

  
	
  SECTION 11.3.

  	
   

  	
  Other Remedies

  	
   

  	
  52

  
	
  SECTION 11.4.

  	
   

  	
  Waiver of Defaults and Events of Default

  	
   

  	
  52

  
	
  SECTION 11.5.

  	
   

  	
  Control by Majority

  	
   

  	
  52

  
	
  SECTION 11.6.

  	
   

  	
  Limitations on Suits

  	
   

  	
  53

  
	
  SECTION 11.7.

  	
   

  	
  Rights of Holders to Receive Payment and to Convert

  	
   

  	
  53

  
	
  SECTION 11.8.

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  53

  
	
  SECTION 11.9.

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  53

  
	
  SECTION 11.10.

  	
   

  	
  Priorities

  	
   

  	
  54

  
	
  SECTION 11.11.

  	
   

  	
  Undertaking for Costs

  	
   

  	
  54

  
	
  SECTION 11.12.

  	
   

  	
  Delay or Omission Not Waiver

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Trustee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.1.

  	
   

  	
  Certain Duties and Responsibilities of Trustee

  	
   

  	
  55

  
	
  SECTION 12.2.

  	
   

  	
  Certain Rights of Trustee

  	
   

  	
  56

  
	
  SECTION 12.3.

  	
   

  	
  Trustee Not Responsible for Recitals or Issuance or
  Securities

  	
   

  	
  57

  
	
  SECTION 12.4.

  	
   

  	
  May Hold Securities

  	
   

  	
  58

  
	
  SECTION 12.5.

  	
   

  	
  Moneys Held in Trust

  	
   

  	
  58

  
	
  SECTION 12.6.

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  58

  
	
  SECTION 12.7.

  	
   

  	
  Reliance on Officers’ Certificate

  	
   

  	
  59

  



 



 -iii-
 









 


	
  SECTION 12.8.

  	
   

  	
  Disqualification: Conflicting Interests

  	
   

  	
  59

  
	
  SECTION 12.9.

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  59

  
	
  SECTION 12.10.

  	
   

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  59

  
	
  SECTION 12.11.

  	
   

  	
  Acceptance of Appointment By Successor

  	
   

  	
  61

  
	
  SECTION 12.12.

  	
   

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  61

  
	
  SECTION 12.13.

  	
   

  	
  Preferential Collection of Claims Against the
  Company

  	
   

  	
  61

  
	
  SECTION 12.14.

  	
   

  	
  Notice of Defaults

  	
   

  	
  62

  
	
  SECTION 12.15.

  	
   

  	
  Reports by Trustee

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amendments,
  Supplements and Waivers

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.1.

  	
   

  	
  Without Consent of Holders

  	
   

  	
  62

  
	
  SECTION 13.2.

  	
   

  	
  With Consent of Holders

  	
   

  	
  63

  
	
  SECTION 13.3.

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  	
  64

  
	
  SECTION 13.4.

  	
   

  	
  Revocation and Effect of Consents

  	
   

  	
  64

  
	
  SECTION 13.5.

  	
   

  	
  Notation on or Exchange of Securities

  	
   

  	
  64

  
	
  SECTION 13.6.

  	
   

  	
  Trustee to Sign Amendments, Etc

  	
   

  	
  65

  
	
  SECTION 13.7.

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Reserved]

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Satisfaction and
  Discharge

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 15.1.

  	
   

  	
  Satisfaction and Discharge of the Indenture

  	
   

  	
  65

  
	
  SECTION 15.2.

  	
   

  	
  Repayment to the Company

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 16.1.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  66

  
	
  SECTION 16.2.

  	
   

  	
  Notices

  	
   

  	
  66

  
	
  SECTION 16.3.

  	
   

  	
  Communications by Holders with Other Holders

  	
   

  	
  67

  
	
  SECTION 16.4.

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  67

  
	
  SECTION 16.5.

  	
   

  	
  Record Date for Vote or Consent of Securityholders

  	
   

  	
  68

  
	
  SECTION 16.6.

  	
   

  	
  Rules by Trustee, Paying Agent, Registrar and
  Conversion Agent

  	
   

  	
  68

  
	
  SECTION 16.7.

  	
   

  	
  Legal Holidays

  	
   

  	
  68

  
	
  SECTION 16.8.

  	
   

  	
  Governing Law; Jury Trial Waiver

  	
   

  	
  68

  
	
  SECTION 16.9.

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  68

  
	
  SECTION 16.10.

  	
   

  	
  No Recourse Against Others

  	
   

  	
  69

  
	
  SECTION 16.11.

  	
   

  	
  Successors

  	
   

  	
  69

  
	
  SECTION 16.12.

  	
   

  	
  Multiple Counterparts

  	
   

  	
  69

  
	
  SECTION 16.13.

  	
   

  	
  Separability

  	
   

  	
  69

  



 



 -iv-
 









 


	
  SECTION 16.14.

  	
   

  	
  Calculations in Respect of the Securities

  	
   

  	
  69

  
	
  SECTION 16.15.

  	
   

  	
  Table of Contents, Headings, Etc

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Note

  	
   

  	
  A-1

  
	
  Exhibit B

  	
   

  	
  Form of Certificate to be Delivered Upon Exchange or
  Registration of Transfer of Restricted Securities

  	
   

  	
  B-1

  



 



 -v-















THIS INDENTURE, dated as
of November 1, 2006, is between KEMET CORPORATION, a Delaware corporation
(the “Company”) and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee (in such capacity and not in its individual capacity,
the “Trustee”).


In consideration of the
premises and the purchase of the Securities by the Holders thereof, the parties
hereto agree as follows for the benefit of the others and for the equal and
ratable benefit of the Holders of the Securities.


ARTICLE I


Definitions and
Incorporation By Reference


SECTION 1.1.  Definitions.


“Additional Interest”
has the meaning set forth in Section 5(a) of the Registration Rights
Agreement.  Unless the context otherwise
requires, all references herein or in the Securities to “interest” accrued or
payable as of any date shall include, without duplication, any Additional
Interest accrued or payable as of such date as provided in the Registration
Rights Agreement.


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


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


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


“Applicable Stock
Price” on a Trading Day means the Volume-Weighted Average Price per share
of Common Stock (or any security into which the Common Stock has been converted
in connection with a Fundamental Change) on such Trading Day; provided, however, that
if such Volume-Weighted Average Price is not available, the “Applicable Stock
Price” means the market value per share of the Common Stock on such Trading Day
as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company; provided, however, that for purposes of Section 7.13
hereof, “Applicable Stock Price” means, in respect of a Conversion Date, the
arithmetic average of the daily Volume-Weighted Average Prices of the Common
Stock (or any security into which the Common Stock has been converted in
connection with a Fundamental Change) over the Cash Settlement Averaging
Period.


“Board of Directors”
means either the board of directors of the Company or any duly authorized
committee of such board of directors.


“Business Day”
means each day that is not a Legal Holiday.













“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.


“Cash Settlement
Averaging Period” means, in respect of a Conversion Date, the fifteen
consecutive Trading Day period:


(a)  ending on the second Trading Day preceding
the Redemption Date, if the Company has called the Securities for redemption;


(b)  ending on the second Trading Day
preceding the Final Maturity Date, with respect to Conversion Notices received
during the period beginning 20 Trading Days preceding the Final Maturity Date
and ending one Trading Day
preceding the Final Maturity Date; and


(c)  beginning on the third Trading Day following the Company’s receipt of a
Conversion Notice, in all other cases.


“Certificated Security”
means a Security that is in substantially the form attached hereto as Exhibit A
and that does not include the information or the schedule called for by
footnotes 1 and 5 thereof.


“Closing Sale Price”
of the Common Stock on any Trading Day means the closing sale price per share
(or if no closing sale price is reported, the average of the bid and ask prices
or, if there is more than one bid or ask price, the average of the average bid
and the average ask prices) on such Trading Day as reported in composite
transactions on the NYSE or, if the Common Stock is not listed on the NYSE, on
the principal United States securities exchange on which the Common Stock is
then traded or, if the Common Stock is not listed on a United States national
securities exchange, as available in any over-the-counter market or, if not
available on any over-the-counter market, the Closing Sale Price shall be such
price as the Board of Directors of the Company shall determine in good faith.


“Common Stock”
means any stock of any class of the Company which has 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 is not subject
to redemption by the Company.  Subject to
the provisions of Section 7.11, however, shares issuable on
conversion of Securities shall include only shares of the class designated as
Common Stock of the Company, par value $0.01 per share, at the date of this
Indenture or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are not subject
to redemption by the Company; provided, however, that if at any time there shall be more than one
such resulting class, the shares of each such class then so issuable 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”
means, at any time, an amount equal to $1,000 divided by the Conversion Rate in
effect at such time.



 2
 









“Conversion Value”
means the Closing Sale Price of the Common Stock on any date of determination
multiplied by the Conversion Rate of the Securities in effect on such date.


“Corporate Trust
Office” means the office of the Trustee at which at any time the trust
created by this Indenture shall be principally administered, which office at
the date of the execution of this Indenture is located at 1100 North Market
Street, Wilmington, Delaware, 19890, Attention: Corporate Trust Administration,
or such other office as the Trustee may designate by written notice to the
Company.


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


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


“Existing Securities”
means the Company’s 6.66% Senior Notes due May 4, 2010 issued pursuant to the
terms of a Note Purchase Agreement dated as of May 1, 1998, among the Company
and the purchasers of such Senior Notes, as amended or supplemented from time
to time.


“Final Maturity Date”
means November 15, 2026.


“GAAP” means
generally accepted accounting principles in the United States as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession in the United States, which are in effect from
time to time and consistently applied.


“Global Security”
means a permanent Global Security that is in substantially the form attached
hereto as Exhibit A and that includes the information and schedule called for
by footnotes 1 and 5 thereof and which is deposited with the Depositary or its
custodian and registered in the name of the Depositary or its nominee.


“Guarantee” means,
as applied to any obligation, (1) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner, of any part or all of such obligation and
(2) an agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or payment
of damages in the event of non-performance) of all or any part of such
obligation, including the payment of amounts drawn down by letters of
credit.  A guarantee shall include any
agreement to maintain or preserve any other Person’s financial condition or to
cause any other Person to achieve certain levels of operating results.


“Holder” or “Securityholder”
means the person in whose name a Security is registered in the Register.


“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
explicitly incorporated in this Indenture by reference to the TIA.


“Initial Purchasers”
means Credit Suisse Securities (USA), LLC and Deutsche Bank Securities LLC.



 3
 









“Initial Securities” means the
Securities issued (a) on
the date hereof in the aggregate principal amount of $160,000,000, and (b) if
the Initial Purchasers exercise their over-allotment option in accordance with
the Purchase Agreement, within 30 days of the date hereof in an aggregate
principal amount of up to $15,000,000, and, in each case, any Securities
issued in replacement thereof.


“Interest Payment Date”
has the meaning set forth in the Securities.


“Interest Payment
Record Date” has the meaning set forth in the Securities.


“Nasdaq” means the Nasdaq Global Market.


“NYSE” means the
New York Stock Exchange.


“Offering Circular”
means the Confidential Offering Circular dated October 26, 2006, relating
to the Securities.


“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary or any Vice President of such Person.


“Officers’ Certificate”
means a certificate signed by at least two Officers of the Company; provided, however, that
for purposes of Section 7.11 and Section 9.3, “Officers’
Certificate” means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
at least one other Officer of the Company.


“Opinion of Counsel”
means a written opinion from legal counsel containing, as applicable, the
information specified in Section 16.4. 
The counsel may be an employee of or counsel to the Company who is
reasonably satisfactory to the Trustee.


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


“Purchase Agreement”
means that certain Purchase Agreement, dated October 26, 2006, among the
Company and the Initial Purchasers.


“Put Notice” means
a Fundamental Change Purchase Notice or an Option Purchase Notice.


“Put Price” means
the Fundamental Change Purchase Price or the Option Purchase Price.


“Put Purchase Date”
means a Fundamental Change Purchase Date or an Option Purchase Date.


“QIB” means a
qualified institutional buyer as defined in Rule 144A.


“Redemption Date”
when used with respect to any Security to be redeemed, means the date fixed for
such redemption pursuant to this Indenture.



 4
 









“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of the date
hereof, among the Company and the Initial Purchasers.


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


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


“Restricted Security”
means a Security required to bear the Restricted Legend called for by footnotes
2 and 3 to the form of Security set forth in Exhibit A of this Indenture.


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


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


“SEC” means the
United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture the SEC is not existing and performing the duties
now assigned to it under the TIA, then the body performing such duties at such
time.


“Security” or “Securities”
means the Company’s 2.25% Convertible Senior Notes due 2026, as amended or
supplemented from time to time pursuant to the terms of this Indenture, that
are issued under this Indenture.


“Securities Act”
means the United States Securities Act of 1933 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 Global Securities, or any
successor thereto.


“Significant
Subsidiary” means any of the Subsidiaries of the Company which has:
(i) consolidated assets or in which the Company and its other Subsidiaries
have investments equal to or greater than 10% of the Company’s total
consolidated assets; or (ii) consolidated gross revenue equal to or greater
than 10% of the Company’s consolidated gross revenue.


“Subsidiary”
means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the outstanding voting stock
(as defined in Section 5.1) or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners
or trustees thereof, or persons performing similar functions, 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.


“Subsidiary Guarantor”
means at any time each Subsidiary that has become a Subsidiary Guarantor
pursuant to Section 8.1 of this Indenture, in each case so long as
it remains a Subsidiary Guarantor.


“TIA” means the
United States Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture; provided, however, that
in the 



 5
 









event the Trust
Indenture Act of 1939 is amended after such date, then “TIA” means, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.


“Trading Day”
means a day during which trading in securities generally occurs on the NYSE or,
if the Common Stock is not listed on the NYSE, on the principal other national
or regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not listed on a national or regional securities exchange,
on the principal other market in which such Common Stock is then traded or
quoted.


“Trading Price”
means, on any date of determination, the average of the secondary bid
quotations per Security obtained by the Conversion Agent for $2,000,000
principal amount of the Securities at approximately 3:30 p.m., New York City
time, on such determination date from three independent nationally recognized
securities dealers that the Company selects; provided,
that if at least three such bids cannot reasonably be obtained, but two such
bids can reasonably be obtained, then the average of these two bids shall be
used; provided, further,
that if at least two such bids cannot reasonably be obtained, but one such bid
can reasonably be obtained, this one bid shall be used.  If the Trustee cannot reasonably obtain at
least one bid for $2,000,000 principal amount of the Securities from an
independent nationally recognized securities dealer, then the Trading Price per
$1,000 principal amount of the Securities shall be deemed to be less than 98%
of the Conversion Value and, for the sole purpose of calculating any average
Trading Price, shall be deemed to be equal to 97.999% of the Conversion Value.


“Trust Officer”
means, with respect to the Trustee, any officer within the Corporate Trust
Administration department (or any successor department) of the Trustee located
at the Corporate Trust Office of the Trustee, who shall have direct
responsibility for the administration of this Indenture, and also means, with
respect to any particular corporate trust matter, any other officer of the
Trustee to whom such corporate trust matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.


“Trustee” means Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as trustee hereunder, until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor Trustee.


“Unrestricted
Certificated Security” means a Certificated Security that is not a
Restricted Security.


“Unrestricted Global
Security” means a Global Security that is not a Restricted Security.


“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.”


The “Volume-Weighted
Average Price,” on any Trading Day, means the volume-weighted average price
for the Common Stock on the NYSE, during the period beginning at 9:30:01 a.m.,
New York City time (or such other time as is the official open of trading at
the NYSE) and ending at 4:00:00 p.m., New York City time (or such other time as
is the official close of trading at the NYSE), as reported by Bloomberg
Financial Services through its “Volume at Price” (KEM [Equity] VAP [Go])
functions (or any successor function, or if there is no such function or such
successor function, then as calculated by a nationally recognized investment bank).  The volume-weighted average price shall be
rounded to the nearest whole cent.



 6
 









SECTION 1.2.  Other
Definitions.


	
   

  	
  Term

  	
  Section

  	
   

  
	
   

  	
  “Additional
  Securities”

  	
  2.2(d)

  	
   

  
	
   

  	
  “Agent Members”

  	
  2.1(d)

  	
   

  
	
   

  	
  “Aggregate
  Amount”

  	
  7.6(e)

  	
   

  
	
   

  	
  “Bankruptcy Law”

  	
  11.1

  	
   

  
	
   

  	
  “Beneficial
  Owner”

  	
  5.1(a)

  	
   

  
	
   

  	
  “Capital Stock”

  	
  7.6(c)

  	
   

  
	
   

  	
  “Company Order”

  	
  2.2(d)

  	
   

  
	
   

  	
  “Conversion
  Agent”

  	
  2.3

  	
   

  
	
   

  	
  “Conversion
  Date”

  	
  7.2(a)

  	
   

  
	
   

  	
  “Conversion
  Notice”

  	
  7.2(a)

  	
   

  
	
   

  	
  “Conversion
  Rate”

  	
  7.1

  	
   

  
	
   

  	
  “Current Market
  Price”

  	
  7.6(f)

  	
   

  
	
   

  	
  “Custodian”

  	
  11.1

  	
   

  
	
   

  	
  “Debt Security”

  	
  8.1

  	
   

  
	
   

  	
  “Depositary”

  	
  2.1(b)

  	
   

  
	
   

  	
  “Effective Date”

  	
  7.1(a)

  	
   

  
	
   

  	
  “Event of
  Default”

  	
  11.1

  	
   

  
	
   

  	
  ““ex” date”

  	
  7.6(f)

  	
   

  
	
   

  	
  “Excess
  Dividend”

  	
  7.6(d)

  	
   

  
	
   

  	
  “Existing
  Shareholders”

  	
  5.1(a)

  	
   

  
	
   

  	
  “Expiration
  Date”

  	
  7.6(e)

  	
   

  
	
   

  	
  “Expiration
  Time”

  	
  7.6(e)

  	
   

  
	
   

  	
  “Financial
  Institution”

  	
  7.15(a)

  	
   

  
	
   

  	
  “Fundamental
  Change”

  	
  5.1(a)

  	
   

  
	
   

  	
  “Fundamental
  Change Company Notice”

  	
  5.1(b)

  	
   

  
	
   

  	
  “Fundamental
  Change Purchase Date”

  	
  5.1(a)

  	
   

  
	
   

  	
  “Fundamental
  Change Purchase Notice”

  	
  5.1(c)

  	
   

  
	
   

  	
  “Fundamental
  Change Purchase Price”

  	
  5.1(a)

  	
   

  
	
   

  	
  “Holder Option Notice”

  	
  5.2(b)

  	
   

  
	
   

  	
  “Legal Holiday”

  	
  16.7

  	
   

  
	
   

  	
  “Measurement
  Period”

  	
  7.1(a)(iii)

  	
   

  
	
   

  	
  “Nasdaq”

  	
  1.1

  	
   

  
	
   

  	
  “Notice of
  Default”

  	
  11.1

  	
   

  
	
   

  	
  “Option Purchase
  Date”

  	
  5.2(a)

  	
   

  
	
   

  	
  “Option Purchase
  Notice”

  	
  5.2(c)

  	
   

  
	
   

  	
  “Option Purchase
  Price”

  	
  5.2(a)

  	
   

  
	
   

  	
  “Paying Agent”

  	
  2.3

  	
   

  
	
   

  	
  “Principal Return”

  	
  7.13

  	
   

  
	
   

  	
  “Purchased
  Shares”

  	
  7.6(e)

  	
   

  
	
   

  	
  “Redemption
  Price”

  	
  3.1(a)

  	
   

  
	
   

  	
  “Register”

  	
  2.3

  	
   

  
	
   

  	
  “Registrar”

  	
  2.3

  	
   

  
	
   

  	
  “Remaining
  Conversion Obligation”

  	
  7.13(a)

  	
   

  
	
   

  	
  “Restricted
  Legend”

  	
  2.12(f)

  	
   

  
	
   

  	
  “Rule 144A
  Information”

  	
  9.2(b)

  	
   

  
	
   

  	
  “Settlement
  Notice Period”

  	
  7.13(a)

  	
   

  
	
   

  	
  “Stock Price”

  	
  7.1(a)

  	
   

  
	
   

  	
  “Subsidiary
  Guarantee”

  	
  8.1

  	
   

  
	
   

  	
  “Underlying
  Shares”

  	
  7.6(b)

  	
   

  



 



 7
 









SECTION 1.3.  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. 
The Indenture shall also include those provisions of the TIA required to
be included herein by the provisions of the TIA.  The following TIA terms used in this
Indenture have the following meanings:


“Commission” means
the SEC;


“indenture securities”
means the Securities;


“indenture security
Holder” means a Securityholder;


“indenture to be
qualified” means this Indenture;


“indenture trustee”
or “institutional trustee” means the Trustee; and


“obligor” on the
indenture securities means the Company and any successor 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 1.4.  Rules of
Construction.  Unless the context
otherwise requires:


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


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


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


(d)  provisions apply to successive events and
transactions;


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


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


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


(h)  references to “interest” include Additional
Interest;


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


 



 8















(j)  unless context otherwise
requires, any reference to an “Article” or a “Section” refers to an Article or
Section, as the case may be, of this Indenture;


(k)  “or” is not exclusive; and


(l)  “including” means including
without limitation.


ARTICLE
II


The
Securities


SECTION 2.1. 
Form and Dating.  (a)  The Securities and the corresponding 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, exchange rule, Applicable
Procedures 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 terms and provisions
contained in the Securities shall constitute, and are hereby expressly made, a
part of this Indenture and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby; provided, however,
to the extent permitted by applicable law, if any provision of any Security
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.


(b)  Restricted
Global Securities.  All of the
Securities 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 Securities Custodian, as custodian for
the depositary, The Depository Trust Company (such depositary, or any successor
thereto, being hereinafter referred to as the “Depositary”), and
registered in the name of its nominee, Cede & Co., or as otherwise
instructed by 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 and the Depositary as hereinafter provided, subject in
each case to compliance with the Applicable Procedures and the provisions of
this Indenture.


(c)  Global
Securities In General.  Each Global
Security shall represent such of the out-standing 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 exchanges,
redemptions, purchases or conversions of such Securities, in each case in
accordance with this Indenture.  Any
adjustment of the aggregate principal amount of a Global Security to reflect
the amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12
hereof, or otherwise in accordance with this Indenture, and shall be made on
the records of the Trustee and the Depositary.


The Company shall issue
and the Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), authenticate and deliver in accordance with 



 9
 









Section 2.2,
initially one or more Global Securities that (i) shall be registered in the
name of Cede & Co. or as otherwise instructed by the Depositary, (ii)
shall be delivered by the Trustee to the Depositary or to the Securities
Custodian pursuant to the Depositary’s instructions and (iii) shall bear
legends required for Global Securities as set forth in Exhibit A hereto.


(d)  Book
Entry Provisions.  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 (A) prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary, or such nominee, as the case may be, or (B) impair, as between
the Depositary and its Agent Members, the Applicable Procedures or the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.


None of the Company, the
Trustee, the Registrar, any Paying Agent or any agent of any of them shall have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Securities,
for maintaining, supervising or reviewing any records relating to such
beneficial owner interests, or for any acts or omissions of a Depository or for
any transactions between a Depository and any beneficial owner or between or
among beneficial owners.  No owner of a
beneficial interest in the Securities shall have any rights under this
Indenture, and the Depository or its nominee, if any, shall be deemed and
treated by the Company, the Trustee, the Registrar, any Paying Agent or any
agent of any of them as the absolute owner and holder of such Securities for
all purposes whatsoever.  Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee, the
Registrar, any Paying Agent or any agent of any of them from giving effect to
any written certification, proxy or other authorization furnished by a
Depository, or any of its members and any other Person on whose behalf such
member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a beneficial owner of any Securities.


(e)  Certificated
Securities.  Certificated Securities
shall be issued only under the circumstances provided in Section 2.12(a)(i).


SECTION 2.2. 
Execution and Authentication. 
(a)  A duly authorized Officer of
the Company shall sign the Securities for the Company by manual or facsimile
signature.


(b)  If
an Officer of the Company 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.


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


(d) 
The Trustee shall initially authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to
$160,000,000 ($175,000,000, if the Initial Purchasers exercise their
over-allotment option in full in accordance with the Purchase Agreement) upon
receipt of a written order or orders of the Company signed by an Officer of the
Company (a “Company Order”).  The
Trustee shall authenticate additional Securities (the “Additional Securities”)
thereafter in unlimited aggregate principal amount (so long as permitted by the
terms of this Indenture) for original issue upon a Company Order of the Company
in 



 10
 









aggregate principal amount as specified in such order (except as
provided in Section 2.7). 
Each such Company Order shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be
authenticated.  Such Additional
Securities shall have identical terms to the Initial Securities except for
issuance dates and prices and with respect to interest accruing prior to their
date of issuance, and will constitute the same series as the Initial Securities
for all purposes hereunder, including, without limitation, waivers, amendments,
redemptions and offers to purchase.  At
the option of the Company, the Additional Securities may have the same CUSIP
number as the Initial Securities; provided that
if any Additional Securities are issued at a price that causes such Additional
Securities to have “original issue discount” within the meaning of Section 1273
of the United States Internal Revenue Code of 1986, as amended, such Additional
Securities shall not have the same CUSIP number as the Initial Securities.


(e) 
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.


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 2.3. 
Registrar, Paying Agent and Conversion Agent.  The Company shall maintain an office or
agency where Securities may be presented for registration of transfer or for
exchange (“Registrar”), an office or agency in the United States where
Securities may be presented for redemption, purchase or payment (“Paying
Agent”), an office or agency where Securities may be presented for
conversion (“Conversion Agent”) 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.  The Registrar
shall keep a register of the Securities (“Register”) and of their
transfer and exchange.


The Company may have one
or more co-registrars, one or more additional paying agents, and one or more
additional conversion agents.  The term “Registrar”
includes any co-registrar, including any named pursuant to Section 9.6.  The term “Paying Agent” includes any
additional paying agent, including any named pursuant to Section 9.6.  The term “Conversion Agent” includes any
additional conversion agent, including any named pursuant to Section 9.6.


The Company shall enter into
an appropriate agency agreement with any Agent not a party to this
Indenture.  The agreement shall implement
the provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture.  If the Company fails to maintain a Registrar,
Paying Agent or 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.


The Company hereby
initially appoints the Trustee as Registrar, Paying Agent and Conversion Agent
in connection with the Securities.


SECTION 2.4. 
Paying Agent to Hold Money and Securities in Trust.  Prior to 10:00 a.m., New York City time,
on each due date of payments in respect of, or delivery of Cash in an amount
equal to the Principal Return of any Security, as well as Cash or a combination
of Cash and shares of Common Stock, as applicable and as provided herein, in
respect of any remaining amount by 



 11
 









which the Conversion Value exceeds the principal amount of such
Security, upon conversion of, such Security, the Company shall deposit with the
Paying Agent Cash (in immediately available funds if deposited on the due date)
or with the Conversion Agent such number of shares of Common Stock or other
consideration sufficient to make such payments or deliveries when so becoming
due.  The Company shall require each
Paying Agent or Conversion Agent, as applicable (other than the Trustee), to
agree in writing that such Agent shall hold in trust for the benefit of
Securityholders or the Trustee all Cash, Common Stock or other consideration,
as applicable, held by such Agent for the making of payments or deliveries in
respect of the Securities and shall notify the Trustee in writing of any
default by the Company in making any such payment or delivery.  If the Company or an Affiliate of the Company
acts as Paying Agent or Conversion Agent, as applicable, it shall segregate the
Cash, Common Stock and other consideration, as applicable, held by it as Paying
Agent or Conversion Agent, as applicable, and hold it as a separate trust fund.


The Company at any time
may require a Paying Agent or Conversion Agent, as applicable, to pay all Cash,
Common Stock or other consideration, as applicable, held by it to the Trustee,
and the Trustee may at any time during the continuance of any Default, upon
written request to the Paying Agent or the Conversion Agent, as applicable,
require such Paying Agent or Conversion Agent, as applicable, to pay forthwith
to the Trustee all Cash, Common Stock or other consideration, as applicable, so
held in trust by such Paying Agent or Conversion Agent.  Upon doing so, the Paying Agent or the
Conversion Agent, as applicable, shall have no further liability for such Cash,
Common Stock or other consideration, as applicable.


SECTION 2.5. 
Securityholder Lists.  The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of the
Securityholders.  If the Trustee is not
the 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 of the names and addresses of the Securityholders in such form
and as of such date as the Trustee may reasonably request.


SECTION 2.6. 
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, if
such Security is a Certificated Security, be duly endorsed or accompanied by an
assignment form, in the form included in Exhibit A attached hereto and, if
applicable, a transfer certificate, in the form included in Exhibit B attached
hereto, and in form reasonably satisfactory to the Registrar duly executed by
the Holder thereof or its attorney duly authorized in writing.  To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.3,
the Company shall execute and the Trustee shall, upon receipt of a Company
Order, 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, assessment or other
governmental charge that may be imposed in relation thereto, other than
exchanges pursuant to Section 2.10, Section 13.5,
Article III, Article V or Article VII, in each case, not involving any
transfer.


Neither the Company, any
Registrar nor the Trustee shall be required to exchange or register a transfer
of (i) any Securities for a period of 15 days preceding any mailing of a notice
of 



 12
 









Securities to be
redeemed, (ii) any Securities or portions thereof selected or called for
redemption (except, in the case of redemption of a Security in part, the
portion thereof not to be redeemed) or (iii) any Securities or portions thereof
in respect of which a Put Notice has been delivered and not validly withdrawn
by the Holder thereof (except, in the case of the purchase of a Security in
part, the portion thereof not to be purchased).


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.


(b) 
Any Registrar appointed pursuant to Section 2.3 or Section 9.6
hereof shall provide to the Trustee such information as the Trustee may
reasonably request in connection with the delivery by such Registrar of
Securities upon transfer or exchange of Securities.


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 opinions
of counsel, 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 (including if so requested by the Company exercising a right to
require the delivery of such items), and to examine the same to determine
substantial compliance as to form with the express requirements hereof.


Any Holder of a Global
Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Depository (or its agent), and that
ownership of a beneficial interest in a Global Security shall be required to be
reflected in a book-entry system.


SECTION 2.7. 
Replacement Securities.  If
(a) any mutilated security is surrendered to the Company, a Registrar or the
Trustee, or (b) the Company, the Registrar and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and, in
either case, there is delivered to the Company, the Registrar and the Trustee
such security or indemnity as shall be reasonably 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 or protected
purchaser, the Company shall issue, and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), 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.


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


Upon the issuance of any
new Securities under this Section 2.7, the Company may require the
payment of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in relation thereto and any other reasonable
expenses (including the reasonable fees and expenses of the Trustee or the
Registrar) in connection therewith.


Every new Security issued
pursuant to this Section 2.7 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of 



 13
 









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 and outstanding hereunder.


The provisions of this Section 2.7
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 2.8. 
Outstanding Securities. 
Securities outstanding at any time are all Securities authenticated by
the Trustee, except for those canceled by it, those paid, redeemed or
repurchased pursuant to Section 2.7, those delivered to it for
cancellation and those described in this Section 2.8 as not
outstanding.


If a Security is replaced
pursuant to Section 2.7 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless the Trustee
receives, subsequent to the new Security’s authentication, proof satisfactory
to the Company that the replaced Security is held by a bona fide or protected
purchaser.  A mutilated Security ceases
to be outstanding upon surrender and replacement thereof pursuant to Section 2.7.


If the Paying Agent
holds, in accordance with the terms of this Indenture, prior to
10:00 a.m., New York City time, on the Final Maturity Date or a Redemption
Date or on a Put Purchase Date, as the case may be, Cash sufficient to pay all
Initial Securities and all Additional Securities then payable, then on and
after such Final Maturity Date, Redemption Date or Put Purchase Date, as the
case may be, such Securities shall cease to be outstanding and interest on such
Securities shall cease to accrue.


If a Security is
converted in accordance with Article VII, then on the Conversion Date, such
Security shall cease to be outstanding and interest on such Security shall
cease to accrue, unless there shall be a default in the delivery of the
consideration payable hereunder upon such conversion.


Subject to the
restrictions contained in Section 2.9, a Security does not cease to
be outstanding solely because the Company or an Affiliate of the Company holds
the Security.


SECTION 2.9. 
Treasury Securities.  In
determining whether the Holders of the required principal amount of Securities
have given or concurred in any notice, request, demand, authorization,
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 and deemed not to be outstanding for such
purposes, except that, for purposes of determining whether the Trustee shall be
protected in relying on any such notice, request, demand, authorization,
direction, waiver or consent, only Securities which a Trust Officer 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, and is not acting on the behalf of, the Company or any other obligor on
the Securities or any Affiliate of the Company or of such other obligor.  The Company agrees to notify the Trustee in
writing of the existence of any such Treasury Securities or Securities owned by
the Company, any other obligor on the Securities, or any Affiliate of the
Company.


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 



 14
 









form of definitive Securities but may have variations that the Company
reasonably considers appropriate for temporary Securities.  After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of the Company designated for such purpose pursuant to Section 2.3,
without charge to the Holder.  Upon
surrender for cancellation of any one or more temporary Securities, the Company
shall execute and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations.  Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.


SECTION 2.11. 
Cancellation.  The Company
at any time may deliver Securities to the Trustee for cancellation.  The Registrar, the Paying Agent and the
Conversion Agent shall forward to the Trustee or its agent any Securities
surrendered to them for transfer, exchange, redemption, payment or conversion.  The Trustee and no one else shall cancel, in
accordance with its standard procedures, all Securities surrendered for
transfer, exchange, redemption, payment, conversion or cancellation and shall
deliver the canceled Securities to the Company. 
The Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article VII.


All Securities that are
redeemed or purchased pursuant to Articles III or V or otherwise acquired by
the Company shall be delivered to the Trustee for cancellation.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a repurchase or satisfaction
of the indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation.


SECTION 2.12. 
Legend; Additional Transfer and Exchange Requirements.  (a)  Transfer
and Exchange of Global Securities. 
(i)  Certificated Securities shall
be issued in exchange for interests in the Global Securities only (x) if the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities or if it at any time ceases to be a “clearing
agency” registered under the Exchange Act, if so required by applicable law or
regulation, and a successor Depositary is not appointed by the Company within
90 days of such notice or (y) if an Event of Default has occurred and is
continuing, each of clauses (x) and (y) in accordance with the Applicable
Procedures.  In any such case, the
Company shall execute, and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver
Certificated Securities in an aggregate principal amount equal to the principal
amount of such Global Securities in exchange therefor.  Only Restricted Certificated Securities shall
be issued in exchange for beneficial interests in Restricted Global Securities,
and only Unrestricted Certificated Securities shall be issued in exchange for
beneficial interests in Unrestricted Global Securities.  Certificated Securities issued in exchange
for beneficial interests in Global Securities shall be registered in such names
and shall be in such authorized denominations as the Depositary, pursuant to
instructions from its Agent Members or otherwise in accordance with the
Applicable Procedures, shall instruct the Trustee.  The Trustee shall deliver or cause to be
delivered such Certificated Securities to the Persons in whose name such
Securities are so registered.  Such
exchange shall be effected in accordance with the Applicable Procedures.  In the event that the Certificated Securities
are not issued to each such beneficial owner promptly after the Registrar has
received a request from the Depositary to issue such Certificated Securities,
the Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to Section 11.6 or 11.7 hereof, the
right of any beneficial holder of Securities to pursue such remedy with respect
to the portion of the Global Security that represents such Beneficial Owner’s
Securities as if such Certificated Securities had been issued.



 15
 









 


(ii) 
Notwithstanding any other provisions of this Indenture other than the
provisions set forth in Section 2.12(a)(i), a Global 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.


(b)  Transfer
and Exchange of Certificated Securities. 
In the event that Certificated Securities are issued in exchange for
beneficial interests in Global Securities in accordance with Section 2.12(a)(i),
and, on or after such event, Certificated Securities are presented by a Holder
to the Registrar with a request:


(x)  to register the transfer of the Certificated
Securities to a person who shall take delivery thereof in the form of
Certificated Securities only; or


(y)  to exchange such Certificated Securities for
an equal principal amount of Certificated Securities of other authorized
denominations,


such Registrar shall
register the transfer or make the exchange as requested; provided, however,
that the Certificated Securities presented or surrendered for register of
transfer or exchange:


(i)  shall be duly endorsed or
accompanied by a written instrument of transfer in accordance with the proviso
to the first sentence of Section 2.6(a); and


(ii)  in the case of a Restricted
Certificated Security, such request shall be accompanied by the following
additional information and documents, as applicable:


(1)  if such Restricted Certificated Security is
being delivered to the Registrar by a Holder for registration in the name of
such Holder, without transfer, or such Restricted Certificated Security is
being transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in substantially the form set
forth in Exhibit B);


(2)  if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB in
accordance with Rule 144A, or pursuant to an effective registration statement
under the Securities Act or in compliance with Rule 904 of Regulation S under
the Securities Act, a certification to that effect from such Holder (in
substantially the form set forth in Exhibit B);


(3)  if such Restricted Certificated Security is
being transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 or pursuant to and in
compliance with another exemption from the registration requirements under the
Securities Act, a certification to that effect from the Holder (in
substantially the form set forth in Exhibit B) and, if the Company or the
Registrar so requests, an Opinion of Counsel, certificates and other
information reasonably acceptable to the Company to the effect that such
transfer does not require registration under the Securities Act.


(c)  Transfer
of a Beneficial Interest in a Restricted Global Security for a Beneficial
Interest in an Unrestricted Global Security.  Any person having a beneficial interest in a
Restricted Global Security may upon request, subject to the Applicable
Procedures, transfer such 



 16
 









beneficial interest to a Person who is required or permitted to take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Security.  Upon receipt by the Trustee of
written instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Restricted Global Security and the following
additional information and documents in such form as is customary for the
Depositary from the Depositary or its nominee on behalf of the Person having
such beneficial interest in the Restricted Global Security (all of which may be
submitted by facsimile or electronically):


(i)  if such beneficial interest
is being transferred pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the Holder (in
substantially the form set forth in Exhibit B); or


(ii)  if such beneficial interest
is being transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a certification to that
effect from the Holder (in substantially the form set forth in Exhibit B) and,
if the Company or the Trustee so requests, an Opinion of Counsel, certificates
and other information reasonably acceptable to the Company to the effect that
such transfer does not require registration under the Securities Act;


the Registrar shall
reduce or cause to be reduced the aggregate principal amount of the Restricted
Global Security by the appropriate principal amount and shall increase or cause
to be increased the aggregate principal amount of the Unrestricted Global
Security by a like principal amount. 
Such transfer shall otherwise be effected in accordance with the
Applicable Procedures.  If no
Unrestricted Global Security is then outstanding, the Company shall execute and
the Trustee shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver an Unrestricted Global Security.


(d)  Transfer
of a Beneficial Interest in an Unrestricted Global Security for a Beneficial
Interest in a Restricted Global Security. 
Any person having a beneficial interest in an Unrestricted Global
Security may upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take delivery
thereof in the form of a beneficial interest in a Restricted Global
Security.  Upon receipt by the Trustee of
written instructions, or such other form of instructions as is customary for
the Depositary, from the Depository or its nominee on behalf of any person
having a beneficial interest in an Unrestricted Global Security and the
following additional information and documents in such form as is customary for
the Depositary, from the Depositary or its nominee on behalf of the person
having such beneficial interest in the Unrestricted Global Security (all of
which may be submitted by facsimile or electronically):


(i)  a certification from the
Holder (in substantially the form set forth in Exhibit B) to the effect that
such beneficial interest is being transferred to a person that the transferor
reasonably believes is a QIB in accordance with Rule 144A;


(ii)  a certification from the
Holder (in substantially the form set forth in Exhibit B) to the effect that
such beneficial interest is being transferred in compliance with Rule 904 of
Regulation S under the Securities Act;


(iii)  if such beneficial
interest in such Unrestricted Global Security is being transferred in
compliance with any other exemption from registration under the Securities Act,
certification to that effect from such Holder (in substantially the form set
forth in Exhibit B) and if the Company or the Trustee so requests, an Opinion of




 17
 









Counsel,
certificates and other information reasonably acceptable to the Company to the
effect that such transfer does not require registration under the Securities
Act; or


(iv)  a certification (in
substantially the form set forth in Exhibit B) to the effect that such
beneficial interest is being transferred to the Company or a Subsidiary of the
Company, the Registrar shall reduce or cause to be reduced the aggregate
principal amount of the Unrestricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal
amount.  Such transfer shall otherwise be
effected in accordance with the Applicable Procedures.  If no Restricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver a Restricted Global Security.


(e)  Transfers
of Certificated Securities for Beneficial Interest in Global Securities.  In the event that Certificated Securities are
issued in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(i)
which required such exchange shall cease to exist, the Company shall mail
notice to the Trustee and to the Holders (i) stating that Holders may exchange
Certificated Securities for interests in Global Securities by complying with
the procedures set forth in this Indenture and (ii) briefly describing such
procedures and the events or circumstances requiring that such notice be
given.  Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:


(x)  to register the transfer of such Certificated
Securities to a Person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall specify whether
such Global Security will be a Restricted Global Security or an Unrestricted
Global Security; or


(y)  to exchange such Certificated Securities for
an equal principal amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such Certificated
Securities (provided that in the case of such an exchange, Restricted
Certificated Securities may be exchanged only for Restricted Global Securities
and Unrestricted Certificated Securities may be exchanged only for Unrestricted
Global Securities),


the Registrar shall
register the transfer or make the exchange as requested by canceling such
Certificated Security and causing the aggregate principal amount of the
applicable Global Security to be increased accordingly and, if no such Global
Security is then outstanding, the Company shall issue and the Trustee shall,
upon receipt of a Company Order (which the Company agrees to deliver promptly)
authenticate and deliver a new Global Security; provided,
however, that the Certificated
Securities presented or surrendered for registration of transfer or exchange:


(i)  shall be duly endorsed or
accompanied by a written instrument of transfer in accordance with the proviso
to Section 2.6(a);


(ii)  in the case of a Restricted
Certificated Security to be transferred for a beneficial interest in an
Unrestricted Global Security, shall be accompanied by the following additional
information and documents, as applicable:



 18
 









 


(1)  if such Restricted Certificated Security is
being transferred pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such Holder (in substantially
the form set forth in Exhibit B); or


(2)  if such Restricted Certificated Security is
being transferred pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a certification to that
effect from such Holder (in substantially the form set forth in Exhibit B) and
an Opinion of Counsel, certificates and other information reasonably acceptable
to the Company to the effect that such transfer does not require registration
under of the Securities Act;


(iii)  in the case of a
Restricted Certificated Security to be transferred to another person for a
beneficial interest in a Restricted Global Security, shall be accompanied by
the following information and documents, as applicable:


(1)  if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB in
accordance with Rule 144A, a certification to that effect from such Holder (in
substantially the form set forth in Exhibit B); or


(2)  if such Restricted Certificated Security is
being transferred in compliance with Rule 904 of Regulation S under the
Securities Act, certification to that effect from such Holder (in substantially
the form set forth in Exhibit B);


(iv)  in the case of an
Unrestricted Certificated Security to be transferred or exchanged for a
beneficial interest in an Unrestricted Global Security, or in the case of a
Restricted Certificated Security to be exchanged (and not transferred) for a
beneficial interest in a Restricted Global Security, such request need not be
accompanied by any additional information or documents; and


(v)  in the case of an
Unrestricted Certificated Security to be transferred or exchanged for a
beneficial interest in a Restricted Global Security, such request shall be accompanied
by the following additional information and documents, as applicable:


(1)  if such Unrestricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB (which,
in the case of an ex-change, shall be such Holder) in accordance with Rule
144A, a certification to that effect from such Holder (in substantially the
form set forth in Exhibit B);


(2)  if such Unrestricted Certificated Security is
being transferred in compliance with Rule 904 of Regulation S under the Securities
Act, certification to that effect from such Holder (in substantially the form
set forth in Exhibit B);


(3)  if such Unrestricted Certificated Security is
being transferred in compliance with any other exemption from registration
under the Securities Act, certification to that effect from such Holder (in
substantially the form set forth in Exhibit B) and an Opinion of Counsel,
certificates and other information reasonably acceptable to the Company to the
effect that such transfer does not require registration under the Securities
Act; or



 19
 









 


(4)  if such Unrestricted Certificated Security is
being transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in substantially the form set
forth in Exhibit B).


(f)  Legends.  (i) 
Except as permitted by the following paragraphs (ii), (iii) and (iv),
each Global Security and Certificated Security (and all Securities issued in
exchange therefor or upon registration of transfer or replacement thereof)
shall bear a legend in substantially the form called for by footnote 2 to
Exhibit A attached hereto (the “Restricted Legend”), for so long as it
is required by this Indenture to bear such legend.


(ii) 
Upon any sale or transfer of a Restricted Security (x) after the
expiration of the holding period applicable to sales of the Securities under
Rule 144(k) of the Securities Act, (y) pursuant to Rule 144 or (z) pursuant to
an effective registration statement under the Securities Act:


(1)  in the case of any Restricted Certificated
Security, each Registrar shall permit the Holder thereof to transfer such
Restricted Certificated Security to a transferee who, unless such transferee is
an Affiliate of the Company, shall take such Security in the form of an
Unrestricted Certificated Security or (under the circumstances described in Section 2.12(e))
an Unrestricted Global Security, and in each case shall rescind any restriction
on the transfer of such Security; provided, however, that the Holder of such Restricted Certificated Security
shall, in connection with such exchange or transfer, comply with the other
applicable provisions of this Section 2.12; and


(2)  in the case of a Restricted Global Security,
each Registrar shall permit the Holder thereof to transfer such beneficial interest
in a Restricted Global Security to a transferee who, unless such transferee is
an Affiliate of the Company, shall take such Security in the form of a
beneficial interest in an Unrestricted Global Security and shall rescind any
restriction on transfer of such Security; provided, however, that such Unrestricted Global Security shall
continue to be subject to the provisions of Section 2.12(a)(ii);
and provided further, however,
that the owner of such beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section 2.12.


If the Applicable
Procedures so require, prior to the removal of any restrictive legend at the
end of the holding period applicable to sales of the Securities under
Rule 144(k) of the Securities Act, such requesting Holder shall deliver an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that the restrictions on transfer contained herein and the restrictive legend
are no longer required in order to maintain compliance with the Securities Act.


(iii) 
Upon the exchange, registration of transfer or replacement of Securities
not bearing the Restricted Legend, the Company shall issue, and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to deliver
promptly), authenticate and deliver, Securities that do not bear such
Restricted Legend.


(iv) 
After the expiration of the holding period pursuant to Rule 144(k) of
the Securities Act, the Company may with the consent of any Holder of a Restricted
Global Security or a Restricted Certificated Security that is not an Affiliate
of the Company, remove any restriction of transfer on such Security, and the
Company shall issue, and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver
Securities that do not bear the Restricted Legend.


 



 20















(v)  Until the expiration of the
holding period applicable to sales of the Securities under Rule 144(k) of the
Securities Act or a transfer pursuant to Rule 144 or pursuant to an effective
registration statement under the Securities Act, the shares of Common Stock
issued upon conversion of the Securities shall bear a legend substantially to
the same effect as the Restricted Legend; provided
that all Securities held by Affiliates of the Company shall bear the Restricted
Legend at all times.


(g)  Transfers to the Company.  Nothing contained in this Indenture or in the
Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in Global Securities) to the Company, or any of
its Subsidiaries or any of its Affiliates.


SECTION 2.13.  CUSIP Numbers.  The Company in issuing the Securities may use
one or more “CUSIP,” “ISIN” or other similar numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP,” “ISIN” or other similar
numbers in notices of redemption or purchase as a convenience to Holders; provided, however,
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 redemption or purchase and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption or purchase shall not be affected by any defect in or omission of
such numbers.  The Company shall promptly
notify the Trustee of any change in the “CUSIP,” “ISIN” or other similar
numbers.


SECTION 2.14.  Ranking.  The obligations of the Company arising under
or in connection with this Indenture and every outstanding Security issued
under this Indenture from time to time constitutes and shall constitute a
senior unsecured general obligation of the Company, ranking equally with
existing and future senior unsecured indebtedness of the Company and ranking
senior in right of payment to any future indebtedness of the Company that is
expressly made subordinate to the Securities by the terms of such indebtedness.


SECTION 2.15.  Persons Deemed
Owners.  Prior to due presentment of
a Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal of, Redemption Price or Put Price, and interest on the
Security, for the purpose of receiving Common Stock or Cash and for all other
purposes, including without limitation, for purposes of giving notices
hereunder, whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.  The
registered Holder of a Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action that a Holder is entitled
to take under this Indenture or the Securities.


SECTION 2.16.  Defaulted
Interest.  If the Company defaults on
a payment of interest on the Securities, it shall pay the defaulted interest,
plus (to the extent permitted by law) any interest payable on the defaulted
interest, in accordance with the terms hereof, to the Persons who are Holders
on a subsequent special record date, which date shall be at least five Business
Days prior to the payment date.  The
Company shall fix such special record date and payment date in a reasonable
manner.  At least 10 days before such
special record date, the Company shall mail to each Holder a notice that states
the special record date, the payment date and the amount of defaulted interest,
and interest payable on defaulted interest, if any, to be paid.  The Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Securities may be listed
and, upon such notice as may be required by such exchange.



 21
 









ARTICLE III


Redemption


SECTION 3.1.  Redemption of
Securities; Notice to Trustee. 
(a)  Upon any redemption pursuant
to this Section 3.1, the Company shall provide the notice required
by Section 3.3 hereof (which notice may be revoked at any time
prior to the time at which the Company or the Trustee, as the case may be, has
given such notice to Securityholders) and shall pay a redemption price in Cash
equal to 100% of the principal amount of the Securities being redeemed, plus
any accrued and unpaid interest (including Additional Interest, if any) to, but
excluding, the date fixed for redemption, payable in Cash (the “Redemption
Price”).


(b)  At any time on and after
November 20, 2011, the Securities may be redeemed at any time or from time
to time at the option of the Company in whole or in part at the Redemption
Price.


(c)  In the event that the
Company elects to redeem the Securities on a Redemption Date that is after any
Interest Payment Record Date but on or before the corresponding Interest
Payment Date or that results in the conversion of the Securities prior to that
Interest Payment Date, the Company shall be required to pay any accrued and
unpaid interest to the same Holder to whom the Company pays the principal of
such Security regardless of whether such Holder was the registered Holder on
the Interest Payment Record Date immediately preceding such Redemption Date
and, if the Holder to whom the Company pays the principal and interest was not
the registered Holder on the Interest Payment Record Date, such payment of
interest shall be in lieu of payment to the registered Holder on such Interest
Payment Record Date.


(d)  If the Company elects to
redeem Securities pursuant to this Section 3.1 and paragraph 5
of the Securities, it shall notify the Trustee of the Redemption Date and the
principal amount of Securities to be redeemed at least 15 days prior to the
date notice of the Redemption Date is given to the Holders pursuant to Section 3.3
(unless a shorter notice period shall be consented to in writing by the
Trustee).


SECTION 3.2.  Selection of
Securities to be Redeemed.  If less
than all of the Securities are to be redeemed, unless the Applicable Procedures
provide otherwise, the Trustee shall select the Securities to be redeemed.  The Trustee shall make the selection by lot,
on a pro rata basis or in accordance with the Applicable Procedures to the
extent the Securities are issued as Global Securities.  Securities in denominations of $1,000
principal amount may only be redeemed in whole. 
The Trustee may select for redemption portions (equal to $1,000
principal amount or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000 principal amount.  Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.  The Trustee shall notify
the Company promptly of the Securities or portions of the Securities to be
redeemed.


Securities and portions
of Securities that are to be redeemed are convertible by the Holder until 5:00
p.m., New York City time, on the Business Day immediately preceding the
Redemption Date.  If any Security
selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed to be taken from the portion
selected for redemption.  Securities that
have been converted subsequent to the Trustee commencing selection of Securities
to be redeemed but prior to redemption of such Securities shall be treated by
the Trustee as outstanding for the purpose of such selection.



 22
 









SECTION 3.3.  Notice of Redemption.  At least 15 days but not more than
60 days before a Redemption Date, the Company shall mail or cause to be
mailed or delivered a notice of redemption to each Holder of Securities to be
redeemed in accordance with Section 16.2.


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


(1)  the
Redemption Date;


(2)  the
Redemption Price;


(3)  the then
current Conversion Rate;


(4)  the names
and addresses of the Paying Agent and Conversion Agent;


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


(6)  that
Holders who wish to convert Securities must surrender such Securities for
conversion prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Redemption Date and must satisfy the other
requirements set forth in paragraph 8 of the Securities and Article VII hereof;


(7)  that,
unless the Company defaults in making the payment of the Redemption Price,
interest on Securities called for redemption shall cease accruing on and after
the Redemption Date;


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


(9)  whether,
with respect to Securities converted during the period between the date of
mailing of the Notice of Redemption and the Redemption Date, the Company shall
satisfy its Remaining Conversion Obligation, in respect of any amount by which
the Conversion Value exceeds the principal amount of such Securities, in Cash
or a combination of both Cash and Common Stock.


If any of the Securities
to be redeemed 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 applicable to redemptions.


At the Company’s written
request, the Trustee shall give the notice of redemption to each Holder in the
Company’s name and at the Company’s expense; provided,
however, that the Company makes such
request at least three Business Days (unless a shorter period shall be
consented to in writing by the Trustee) prior to the date by which such notice
of redemption must be given to Holders in accordance with this Section 3.3;
provided further, however,
that the text of the notice of redemption shall be prepared by the Company.


SECTION 3.4.  Effect of Notice
of Redemption.  Once notice of redemption
is mailed or delivered, Securities called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the notice, except
for Securities that are converted in accordance 



 23
 









with the
provisions of this Indenture.  Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price.


SECTION 3.5.  Deposit of
Redemption Price.  Prior to 10:00
a.m., New York City time, on the applicable Redemption Date, the Company shall
deposit with the Paying Agent (or, if the Company or an Affiliate acts as
Paying Agent, shall segregate and hold in trust as provided in Section 2.4)
an amount of Cash (in immediately available funds if deposited on such
Redemption Date) sufficient to pay the aggregate Redemption Price of all
Securities or portions thereof that are to be redeemed on that Redemption Date,
other than Securities or portions thereof called for redemption on that date
that have been delivered by the Company to the Trustee for cancellation or have
been delivered by the Holder thereof for conversion.


If the Paying Agent
holds, in accordance with the terms hereof, at 10:00 a.m., New York City time,
on the applicable Redemption Date, Cash sufficient to pay the Redemption Price
of all Securities to be redeemed on such date, then, on and after such
Redemption Date, such Securities shall cease to be outstanding and interest on
such Securities shall cease to accrue, whether or not such Securities are
delivered by their Holders to the Paying Agent, and the rights of the Holders
in respect thereof shall terminate (other than the right to receive the
Redemption Price upon delivery of such Securities by their Holders to the
Paying Agent).


SECTION 3.6.  Securities
Redeemed in Part.  Any Certificated
Security that is to be redeemed only in part shall be surrendered at the office
of the Paying Agent and, promptly after the Redemption Date, the Company shall
issue and the Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), 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 in writing by such
Holder, in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
redeemed.


SECTION 3.7.  Repayment to the
Company.  To the extent that the
aggregate amount of Cash deposited by the Company pursuant to Section 3.5
exceeds the aggregate Redemption Price of the Securities or portions thereof
that the Company is obligated to redeem on the Redemption Date (because of the
conversion of Securities pursuant to Article VII or otherwise) then, promptly
after the Redemption Date, the Paying Agent shall return any such excess Cash
to the Company.


ARTICLE IV


[Reserved]


ARTICLE V


Put Option


SECTION 5.1.  Purchase of
Securities at Option of the Holder upon a Fundamental Change.  (a)  In
the event a Fundamental Change shall occur at any time when any Securities
remain outstanding, the Securities shall be purchased by the Company, at the
option of any Holder thereof, in accordance with the provisions of paragraph 6
of the Securities on a date specified by the Company (the “Fundamental
Change Purchase Date”) that is not less than 15 nor more than
45 Business Days after the date the Company mails the Fundamental Change
Company Notice pursuant to Section 5.1(b), at a purchase price in
Cash equal to 100% of the principal amount of 



 24
 









the Securities
tendered for purchase, plus accrued and unpaid interest (including Additional
Interest, if any) to, but not including, the Fundamental Change Purchase Date
(the “Fundamental Change Purchase Price”), subject to satisfaction by or
on behalf of any Holder of the requirements set forth in Section 5.1(c).


A “Fundamental Change”
shall be deemed to have occurred upon the occurrence of any of the following:


(1)  any “person”
or “group” becomes the “beneficial owner,” directly or indirectly, of shares of
the Company’s voting stock representing 50% or more of the total voting power
of all outstanding classes of the Company’s voting stock or has the power,
directly or indirectly, to elect a majority of the members of the “board of
directors” of the Company and (i) such “person” or “group” files a
Schedule 13D or Schedule TO, or any successor schedule, form or report
under the Exchange Act, disclosing the same or (ii) we otherwise become
aware of any such person or group;


(2)  the Company
consolidates with, or merges with or into, another Person or the Company sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the Company’s assets, or any Person consolidates with, or
merges with or into, the Company, in any such event other than pursuant to a
transaction in which the Persons (the “Existing Shareholders”) that “beneficially
owned,” directly or indirectly, shares of the Company’s voting stock
immediately prior to such transaction beneficially own, directly or indirectly,
shares of voting stock representing a majority of the total voting power of all
outstanding classes of voting stock of the surviving or transferee person in
substantially the same proportion amongst such Existing Shareholders as such
ownership immediately prior to such transaction; or


(3)  the Company’s
Common Stock ceases to be listed on the NYSE, the Nasdaq or another national
securities exchange and is not then quoted on an established automated
over-the-counter trading market in the United States.


Notwithstanding anything
to the contrary set forth in this Section 5.1, a merger or
consolidation shall be deemed not to constitute a Fundamental Change if at
least 90% of the consideration (excluding Cash payments for fractional shares
and Cash payments pursuant to dissenters’ appraisal rights) in the merger or
consolidation constituting the Fundamental Change consists of common stock
traded on the NYSE, the Nasdaq or another national securities exchange (or
which shall be so traded when issued or exchanged in connection with such merger
or consolidation) and as a result of such transaction or transactions the
Securities become convertible solely into such common stock.


For purposes of this Section 5.1:


·                  “person”
and “group” shall have the meanings given to them for purposes of Sections
13(d) and 14(d) of the Exchange Act or any successor provisions, and the term “group”
includes any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, or
any successor provision;


·                  a “beneficial
owner” shall be determined in accordance with Rule 13d-3 under the Exchange
Act, as in effect on the date of this Indenture;



 25
 









·                  “beneficially
own” and “beneficially owned” have meanings correlative to that of
beneficial owner;


·                  “board of
directors” means the board of directors or other governing body charged
with the ultimate management of any person;


·                  “voting stock”
means any class or classes of capital stock or other interests then outstanding
and normally entitled (without regard to the occurrence of any contingency) to
vote in the election of the board of directors; and


·                  “capital
stock” means:  (i) in the case of a
corporation, corporate stock; (ii) in the case of an association or business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (iii) in the case of a
partnership or limited liability company, partnership interests (whether
general or limited) or membership interests; or (iv) any other interest or
participation that confers on a person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing person.


(b)  Notice of Fundamental
Change.  Within 30 Business Days
after the effective date of each Fundamental Change, the Company shall notify
the Trustee of the Fundamental Change Purchase Date and shall mail a written
notice of the Fundamental Change (the “Fundamental Change Company Notice”)
to each Holder (and to beneficial owners as required by applicable law) in
accordance with Section 16.2. 
The notice shall include the form of a Fundamental Change Purchase
Notice to be completed by the Holder and shall state, as applicable:


(1)  the events
causing such Fundamental Change and the date of such Fundamental Change;


(2)  that the
Holder has a right to require the Company to purchase the Holder’s Securities;


(3)  the date by
which the Fundamental Change Purchase Notice must be delivered to the Paying
Agent in order for a Holder to exercise the Fundamental Change purchase right;


(4)  the
Fundamental Change Purchase Date;


(5)  the
Fundamental Change Purchase Price;


(6)  the
procedures that the Holder must follow to exercise its Fundamental Change
purchase right under this Section 5.1;


(7)  the names
and addresses of the Paying Agent and the Conversion Agent;


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


(9)  that the
Fundamental Change Purchase Price for any Security as to which a Fundamental
Change Purchase Notice has been duly given and not withdrawn shall be paid
promptly following the later of the Fundamental Change Purchase Date and the
time of surrender of such Security;



 26
 









(10)  the
current Conversion Rate, including any increases to the Conversion Rate that
resulted from the Fundamental Change;


(11)  that the
Securities with respect to which a Fundamental Change Purchase Notice has been
given may be converted pursuant to Article VII of this Indenture only if either
(i) the Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture or (ii) there shall be a default in the
payment of the Fundamental Change Purchase Price;


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


(13)  that,
unless the Company defaults in making payment of such Fundamental Change
Purchase Price, interest on Securities surrendered for purchase by the Company
shall cease to accrue on and after the Fundamental Change Purchase Date; and


(14)  the CUSIP
number(s) of the Securities.


If any of the Securities
are in the form of a Global Security, then the Company shall modify such notice
to the extent necessary to accord with the Applicable Procedures for
repurchases.


At the Company’s request,
the Trustee shall give the Fundamental Change Company Notice on behalf of the
Company and at the Company’s expense; provided, however, that the Company makes such request at least three
Business Days (unless a shorter period shall be consented to in writing by
the Trustee) prior to the date by which such Fundamental Change Company Notice
must be given to the Holders in accordance with this Section 5.1(b);
provided further, however,
that the text of such notice shall be prepared by the Company.


(c)  Fundamental Change
Purchase Notice.  A Holder may
exercise its right specified in Section 5.1(a) upon delivery of a
written notice (which shall be in substantially the form included in Exhibit A
hereto 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 Applicable Procedures) of the exercise of such rights (a “Fundamental
Change Purchase Notice”) to and actually received by a Paying Agent at any
time prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Purchase Date. 
The Fundamental Change Purchase Notice must state:


(1)  if
Certificated Securities are to be delivered, the certificate numbers of the
Securities that the Holder shall deliver to be purchased;


(2)  the portion
of the principal amount of the Securities that the Holder shall deliver to be
purchased, which portion must be in principal amounts of $1,000 or an integral
multiple thereof; and


(3)  that such
Securities shall be purchased by the Company on the Fundamental Change Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of the
Securities and in this Indenture.


The delivery of such
Security to any Paying Agent (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; provided, however, that such Fundamental Change 



 27
 









Purchase Price shall be
paid pursuant to this Section 5.1 only if the Security so delivered
to the Paying Agent shall conform in all material respects to the description
thereof in the related Fundamental Change Purchase Notice.


The Company shall
purchase from the Holder thereof, pursuant to this Section 5.1, 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 Article V that apply to the purchase of all of a Security also apply to
the purchase of such a portion of such Security.


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 5.1(c)
shall have the right to withdraw such Fundamental Change Purchase Notice at any
time prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 5.3(b).


A Paying Agent shall
promptly notify the Company once each Business Day of the receipt by it of any
Fundamental Change Purchase Notices or written notices of withdrawal thereof.


(d)  Notwithstanding anything
herein to the contrary, 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.


SECTION 5.2.  Purchase of
Securities at Option of the Holder on Specified Dates.  (a) 
The Company shall purchase, at the option of the Holder thereof, all or
any portion of the Securities held by such Holder for Cash, in integral
multiples of $1,000, on November 15, 2011, 2016 and 2021 (and if any such
day is not a Business Day, on the following Business Day) (each, an “Option
Purchase Date”).  The purchase price
shall be equal to 100% of the principal amount of the Securities being
purchased, plus accrued and unpaid interest and Additional Interest, if any, to
but excluding the Option Purchase Date (each, an “Option Purchase Price”).


(b)  Notice of Put Exercise.  At any time from the opening of business on
the date that is at least 20 but not more than 45 Business Days prior to
each Option Purchase Date, the Company shall notify the Trustee of such Option
Purchase Date and shall mail or deliver a written notice (the “Holder Option
Notice”) to each Holder (and to beneficial owners as required by applicable
law) in accordance with Section 16.2.  The Holder Option Notice shall include the
form of Option Purchase Notice to be completed by a Holder and returned to the
Company in the event that such Holder elects such repurchase right and shall
state:


(i)  The Option Purchase Date;


(ii)  the date by which the Option Purchase Notice
must be delivered pursuant to the Paying Agent in order for a Holder to
exercise the repurchase right under Section 5.2(a);


(iii)  the Option Purchase Price;


(iv)  the procedures that the Holder must follow to
exercise its purchase its repurchase right under Section 5.2(a);



 28
 









(v)  the names and addresses of the Paying Agent
and the Conversion Agent;


(vi)  that the Securities must be surrendered to
the Paying Agent to collect payment of the Option Purchase Price;


(vii)  that the Option Purchase Price for any
Security as to which an Option Purchase Notice has been duly given and not
withdrawn shall be paid promptly following the latest of the Option Purchase
Date and the time of surrender of such Security;


(viii)  the current Conversion Rate;


(ix)  that the Securities with respect to which an
Option Purchase Notice has been given may be converted pursuant to Article VII
of this Indenture only if either (i) the Option Purchase Notice has been
withdrawn in accordance with the terms of this Indenture or (ii) there shall be
a default in the payment of the Option Purchase Price;


(x)  the procedures for withdrawing an Option
Purchase Notice;


(xi)  that, unless the Company defaults in making
payment of such Option Purchase Price, interest on Securities surrendered for
purchase by the Company shall cease to accrue on and after the Option Purchase
Date; and


(xii)  the CUSIP number(s) of the Securities.


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 applicable to
repurchases.


At the Company’s request,
the Trustee shall give the Holder Option Notice on behalf of the Company and at
the Company’s expense; provided, however, that the Company makes such request at least three
Business Days (unless a shorter period shall be consented to in writing by the
Trustee) prior to the date by which such Holder Option Notice must be given to
the Holders in accordance with this Section 5.2(b); provided further, however, that
the text of such notice shall be prepared by the Company.


(c)  Option Purchase Notice.  A Holder may exercise its right specified in Section 5.2(a)
upon delivery of a written notice (which shall be in substantially the form
included in Exhibit B hereto 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 each case in accordance with Applicable Procedures) of the
exercise of such rights (an “Option Purchase Notice”) to and actually
received by the Paying Agent at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the applicable Purchase
Date.  The Option Purchase Notice must
state:


(i)  if Certificated Securities are to be
delivered, the certificate numbers of the Securities that the Holder shall
deliver to be purchased;



 29
 









(ii)  the portion of the principal amount of the
Securities that the Holder shall deliver to be purchased, which portion must be
in principal amounts of $1,000 or an integral multiple of $1,000; and


(iii)  that such Securities shall be purchased by
the Company as of the Purchase Date pursuant to the terms and conditions
specified in paragraph 7 of the Securities and in this Indenture.


The delivery of such
Security to any Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by the Holder of
the Option Purchase Price; provided, however, that such Option Purchase Price shall be paid
pursuant to this Section 5.2 only if the Security so delivered to
the Paying Agent shall conform in all material respects to the description
thereof in the related Option Purchase Notice.


The Company shall
purchase from the Holder thereof, pursuant to this Section 5.2, 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 Article 5 that apply to the purchase of all of a Security also apply to
the purchase of such a portion of such Security.


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the Option
Purchase Notice contemplated by this Section 5.2(c) shall have the
right to withdraw such Option Purchase Notice at any time prior to 5:00 p.m.,
New York City time, on the Business Day immediately preceding the Option
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 5.3(b).


A Paying Agent shall
promptly notify the Company once each Business Day of the receipt by it of any
Option Purchase Notice or written notice of withdrawal thereof.


(d)  Notwithstanding anything
herein to the contrary, in the case of Global Securities, any Option Purchase
Notice may be delivered or withdrawn, and such Securities may be surrendered or
delivered for purchase, in accordance with the Applicable Procedures.


SECTION 5.3.  Effect of
Fundamental Change Purchase Notice or Option Purchase Notice.  (a) 
Upon receipt by any Paying Agent of a Put Notice, the Holder of the
Security in respect of which such Put Notice was given shall (unless such Put
Notice is withdrawn as specified below) thereafter be entitled to receive the
Fundamental Change Purchase Price, in the case of a Fundamental Change Purchase
Notice, or the Option Purchase Price, in the case of an Option Purchase Notice,
with respect to such Security.  Such
Fundamental Change Purchase Price or Option Purchase Price shall be paid to
such Holder promptly following the later of (i) the Fundamental Change Purchase
Date, in the case of a Fundamental Change Purchase Notice (provided such Holder
has satisfied the conditions in Section 5.1(c)), or the Option
Purchase Date, in the case of an Option Purchase Notice (provided such Holder
has satisfied the conditions in Section 5.2(c)), with respect to
such Security and (ii) the time of delivery of such Security to a Paying Agent
by the Holder thereof in the manner required by Section 5.1(c) or Section 5.2(c),
as applicable.  A Security in respect of
which a Put Notice has been given by the Holder thereof may not be converted
pursuant to Article VII hereof on or after the date of the delivery of such Put
Notice, unless either (i) such Put Notice has first been validly withdrawn in
accordance with Section 5.3(b); or (ii) there shall be a default in
the payment of the Put Price, provided,
that the conversion right with respect to such Security shall terminate at 5:00
p.m., New York City time, on the date such default is cured and such Security
is purchased in accordance herewith.



 30
 









(b)  A Put Notice may be
withdrawn by any Holder delivering such Put Notice upon delivery of a written
notice of withdrawal (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) to and actually received by Paying
Agent at any time prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Put Purchase Date, specifying:


(1)  if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted;


(2)  the
principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, which principal amount must be $1,000 or an
integral multiple thereof; and


(3)  the
principal amount, if any, of the Securities that remains subject to the
original Put Notice and that has been or shall be delivered for purchase by the
Company.


SECTION 5.4.  Deposit of
Fundamental Change Purchase Price or Option Purchase Price.  Prior to 10:00 a.m., New York City time, on a
Put Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.4) an amount
in Cash (in immediately available funds if deposited on such Put Purchase Date)
sufficient to pay the aggregate Put Price of all the Securities or portions
thereof that are to be purchased on that Put Purchase Date.


If a Paying Agent holds,
in accordance with the terms hereof, at 10:00 a.m., New York City time, on a
Put Purchase Date, Cash sufficient to pay the aggregate Put Price of all
Securities for which a Put Notice has been delivered and not validly withdrawn
in accordance with this Indenture, then, on and after such Put Purchase Date,
such Securities shall cease to be outstanding and interest on such Securities
shall cease to accrue, whether or not such Securities are delivered to the
Paying Agent, and the rights of the Holders in respect thereof shall terminate
(other than the right to receive the Put Purchase Price upon delivery of such
Securities by their Holders to the Paying Agent).


SECTION 5.5.  Securities
Purchased in Part.  Any Certificated
Security that is to be purchased only in part shall be surrendered at the office
of a Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form reasonably
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing), and promptly
after a Put Purchase Date, the Company shall issue and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to deliver promptly),
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, in aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased.


SECTION 5.6.  Repayment to the
Company.  To the extent that the
aggregate amount of Cash deposited by the Company pursuant to Section 5.3
exceeds the aggregate Put Price of the Securities or portions thereof that the
Company is obligated to purchase on the Put Purchase Date, then, within one day
after the Put Purchase Date, the Paying Agent shall return any such excess Cash
to the Company.


 



 31















 


SECTION 5.7. 
Compliance with Securities Laws upon Purchase of Securities.  When complying with the provisions of Article
V hereof (provided that such offer or purchase constitutes an “issuer tender
offer” for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer
or purchase), and subject to any exemptions available under applicable law, the
Company shall:


(a)  comply with Rule 13e-4, Rule
14e-1 and any other tender offer rules under the Exchange Act that may then be
applicable; and


(b)  otherwise comply with all
federal and state securities laws so as to permit the rights and obligations in
connection with any purchase pursuant to this Article V to be exercised in the time
and in the manner specified herein.


ARTICLE
VI


[Reserved]


ARTICLE
VII


Conversion


SECTION 7.1. 
Conversion Privilege. 
(a)  Subject to and upon
compliance with the provisions of this Article VII and paragraph 8 of the
Security, at the option of the Holder thereof, any Security, in whole or in
part, may be converted into (1) Cash in an amount equal to the Principal
Return of such Security and (2) to the extent the Conversion Value exceeds
the principal amount of such Security, the remainder of the Company’s Remaining
Conversion Obligation in Cash, shares of Common Stock or a combination of Cash
and shares of Common Stock, at the Company’s option, at a Conversion Rate (the “Conversion
Rate”), initially equivalent to 103.0928 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment pursuant to Section 7.6,
on or prior to the close of business on the Final Maturity Date.


The Securities shall be
convertible (i) at any time after May 15, 2026 and prior to the Final Maturity
Date, and (ii) on or prior to May 15, 2026, only upon the occurrence of one of
the following events:


(i)  During any fiscal quarter,
if the Closing Sale Price of the Common Stock for at least twenty (20) Trading
Days in the period of 30 consecutive Trading Days ending on the last Trading
Day of the preceding fiscal quarter exceeds 130% of the Conversion Price per
share of Common Stock on such last Trading Day. 
For each fiscal quarter, the Company shall determine whether the
Securities are convertible as the result of the satisfaction of this condition
in the preceding fiscal quarter and shall promptly notify the Trustee
accordingly.  The Trustee shall, in turn,
notify the Holders in each fiscal quarter but in no event later than seven (7)
Business Days after receiving notification from the Company, as to the
satisfaction of this condition.


(ii)  For any Security called for
redemption, during the period from the date of any Redemption Notice pursuant
to Section 3.3 to the close of business on the Business Day immediately
preceding the Redemption Date; provided, that
if a Holder has already delivered a Put Notice with respect to the Securities,
such Holder may not 



 32
 









 


surrender its
Securities for conversion until such notice has been withdrawn in accordance
with this Indenture.


(iii)  During the five Trading
Days after any five consecutive Trading Day period following receipt by the
Trustee of a Conversion Notice (the “Measurement Period”) in which the
average of the Trading Prices for the Securities for such five consecutive
Trading Day period is less than 98% of the average of the Conversion Values for
the Securities during that period.  The
Trustee and the Conversion Agent shall have no obligation to determine the
applicability of this condition, or to obtain secondary bid quotations with
respect to any determination of Trading Price except following the receipt of a
Conversion Notice indicating that the Holder’s Securities are being converted
based upon the satisfaction of this condition, the first Trading Day following
such receipt being the commencement of the applicable Measurement Period.  Following receipt of such a Conversion
Notice, the Conversion Agent shall notify the Company which in turn shall
select the three independent nationally recognized securities dealers as
described in the definition of “Trading Price” from which the Conversion Agent
shall receive bid quotations.  The
Conversion Agent shall provide prompt notice to the Company upon obtaining such
bid quotations.


(iv)  If the Company elects to
distribute to all holders of Common Stock:


(1)  rights or warrants entitling them to
subscribe for or purchase Common Stock at less than the Current Market Price on
the Trading Day immediately preceding the declaration date for such
distribution; or


(2)  Cash, debt securities or other evidence of
indebtedness or other assets, which distribution, together with all other such
distributions within the preceding twelve months, has a per share value
exceeding 10% of the Current Market Price of the Common Stock as of the Trading
Day immediately preceding the declaration date for such distribution.


The Company must notify
the Holders at least 20 days prior to the ex-dividend date for such
distribution.  Once the Company has given
such notice, a Holder may surrender its Securities for conversion at any time
until the earlier of the close of business on the Business Day prior to the
ex-dividend date or the Company’s announcement that such distribution will not
take place.


(v)  During the period beginning
on the date of the Fundamental Change Company Notice and until the second
Trading Day preceding the Fundamental Change Purchase Date, a Holder may
surrender Securities for conversion and receive the Fundamental Change Purchase
Price.


(b)  If
a Holder elects to convert its Securities in connection with a Fundamental
Change pursuant to Article V that occurs on or prior to November 20, 2011, then
the Conversion Rate of the Securities being converted by such Holder shall be
increased in the manner set forth below; provided that if
the Stock Price in such transaction is equal to or greater than $30.00 or less
than $7,46 (subject in each case to any increase as described below), no
increase in the Conversion Rate shall be made, subject to adjustment in the
same manner as the Conversion Price as set forth in Section 7.6.  For the avoidance of doubt, the increases
provided for in this Section 7.1(b) shall only be made with respect to
the Securities being converted in connection with such Fundamental Change and
shall not be effective as to any Securities not so converted.



 33
 









 


The increase in the
Conversion Rate, expressed as a number of additional shares of the Common Stock
to be received per $1,000 principal amount of Securities, will be determined by
the Company by reference to the table attached as Schedule A hereto, based on
the date the Fundamental Change becomes effective (the “Effective Date”)
and the price paid per share of Common Stock in the corporate transaction that
gives rise to the Fundamental Change (the “Stock Price”); provided that if a Holder of the Common Stock receives only
Cash in such corporate transaction, the Stock Price shall be the Cash amount
paid per share.  In all other cases, the
Stock Price will be the average of the stock price per share of the Common
Stock on the five consecutive Trading Days beginning on the second Trading Day
after the date on which the Company mailed the Fundamental Change Company
Notice pursuant to Section 5.1(b), provided
further that if the Stock Price is between two Stock Price amounts in
the table or the Effective Date is between two Effective Dates in the table,
the Company shall determine the increased Conversion Rate by a straight-line
interpolation between the Conversion Rates set forth for the higher and lower
Stock Price amounts and the two dates, based on a 365 day year, as applicable.


SECTION 7.2.  Conversion Procedure.  (a) 
The right of conversion attaching to any Security may be exercised at
any time during which conversion is permitted in accordance with Section 7.1(i)
if such Security is represented by a Global Security, by book-entry transfer to
the Conversion Agent through the facilities of the Depositary in accordance
with the Applicable Procedures, or (ii) if such Security is represented by a
Certificated Security, by delivery of such Security at the specified office of
the Conversion Agent, accompanied, in either case, by: (1) a duly signed and
completed conversion notice, in the form as set forth on the reverse of
Security attached hereto as Exhibit A (a “Conversion Notice”); (2) if
such Certificated Security has been lost, stolen, destroyed or mutilated, a
notice to the Conversion Agent in accordance with Section 2.7
regarding the loss, theft, destruction or mutilation of the Security; (3)
appropriate endorsements and transfer documents if required by the Conversion
Agent; and (4) payment of any tax or duty, in accordance with Section 7.4,
which may be payable in respect of any transfer involving the issue or delivery
of the Common Stock in the name of a Person other than the Holder of the
Security.  The date on which the Holder
satisfies all of those requirements is the “Conversion Date.” The
Company shall deliver to the Holder through a Conversion Agent Cash and, if
applicable, a certificate for the number of whole shares of Common Stock
issuable upon the conversion (and Cash in lieu of any fractional shares
pursuant to Section 7.3) on the applicable date specified for such
delivery in the third paragraph of Section 7.13(a) hereof.


(b)  The person in whose name the Security is
registered shall be deemed to be a stockholder of record on the Conversion
Date; provided, however,
that no surrender of a Security or satisfaction of the other conditions in Section 7.2(b)
on any date when the stock transfer books of the Company shall be closed shall
be effective to constitute the person or persons entitled to receive the shares
of Common Stock upon such conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall, provided that all
such conditions have been satisfied, 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, however, that
such conversion shall be at the Conversion Rate in effect on the date on which
all such conditions have been satisfied and such Security was delivered 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. 
No separate payment or adjustment will be made for accrued and unpaid
interest on a converted Security or for dividends or distributions on shares of
Common Stock issued upon conversion of a Security except as provided in this
Indenture.



 34
 









 


(c) 
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall, upon receipt of a Company Order,
authenticate and deliver to the Holder, a new Security equal in principal
amount of the unconverted portion of the Security surrendered.


SECTION 7.3. 
Fractional Shares.  The
Company shall not issue fractional shares of Common Stock upon conversion of
Securities and instead shall deliver Cash in an amount equal to the value of
such fraction computed by the Company on the basis of the Applicable Stock
Price on the Trading Day immediately before the Conversion Date.


SECTION 7.4. 
Taxes on Conversion.  If a
Holder converts a Security, the Company shall pay any documentary, stamp or
similar issue or transfer taxes or duties relating to the issuance or delivery
of shares of Common Stock upon exercise of such conversion rights.  However, the Holder shall pay any tax or duty
which may be payable relating to any transfer involving the issuance or
delivery of shares of Common Stock in a name other than the Holder’s name.  The Conversion Agent may refuse to deliver
the certificate representing shares of Common Stock being issued in a name
other than the Holder’s name until the Conversion Agent receives a sum
sufficient to pay any tax or duties 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 7.5. 
Company to Provide Stock. 
(a)  The Company shall, prior to
the issuance of any Securities hereunder, and from time to time as may be
necessary, reserve at all times and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, a sufficient number of
shares of Common Stock deliverable upon conversion of all of the Securities.


(b) 
All shares of Common Stock that may be issued upon conversion of the
Securities shall be newly issued shares or shares held in the treasury of the
Company, shall be duly authorized, validly issued, fully paid and nonassessable
and shall be free of any preemptive rights and free of any lien or adverse
claim.


(c) 
The Company shall comply with all applicable securities laws regulating
the offer and delivery of any Common Stock upon conversion of Securities and
shall list or cause to have quoted such shares of Common Stock on the NYSE, the
Nasdaq or any other United States national or regional securities exchange or
such other market on which the Common Stock is then listed or quoted; provided, however, that,
if the rules of such automated quotation system or exchange permit the Company
to defer the listing of such Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
automated quotation system or exchange at such time.


(d) 
Notwithstanding anything herein to the contrary, nothing herein shall
give to any Holder any rights as a creditor in respect solely of its right to
conversion.


SECTION 7.6. 
Adjustment of Conversion Rate. 
The Conversion Rate shall be adjusted from time to time by the Company
as follows:


(a)  In case the Company shall
(i) issue shares of its Common Stock as a dividend or distribution on its
Common Stock or (ii) subdivide, combine or reclassify its outstanding Common
Stock, the Conversion Rate in effect immediately prior thereto shall be
adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have been 



 35
 









 


entitled to
(without giving effect to any arrangement pursuant to such dividend,
distribution, subdivision, combination or reclassification not to issue
fractional shares of Common Stock) had such Security been converted immediately
prior to the record date of such event or the happening of such event.  An adjustment made pursuant to this
subsection (a) shall become effective immediately upon the issuance in the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or
reclassification.


(b)  In case the Company shall
issue rights or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share (or a conversion price per share) less
than the Current Market Price per share (as determined in accordance with
subsection (f) of this Section 7.6) of Common Stock on the
record date for such issuance (other than a distribution of rights pursuant to
any then-existing shareholder rights plan), the Conversion Rate in effect
immediately prior to the close of business on the record date for the issuance
shall be increased by multiplying the Conversion Rate in effect immediately
prior to the close of business on such record date by a fraction of which (A)
the numerator shall be the sum of (I) the number of shares of Common Stock
outstanding (excluding shares held in the treasury of the Company) at the close
of business on such record date and (II) the aggregate number of shares (the “Underlying
Shares”) of Common Stock underlying all such issued rights or warrants
(whether by exercise, conversion, exchange or otherwise) and (B) the
denominator shall be the sum of (I) number of shares of Common Stock
outstanding (excluding shares held in the treasury of the Company) at the close
of business on such record date and (II) the number of shares of Common Stock
which the aggregate exercise, conversion, exchange or other price at which the
Underlying Shares may be subscribed for or purchased pursuant to such rights or
warrants would purchase at such Current Market Price per share of Common
Stock.  Such increase shall become
effective immediately prior to the opening of business on the Business Day
following such record date.  In no event
shall the Conversion Rate be decreased pursuant to this Section 7.6(b).  Notwithstanding the preceding sentence, the
Conversion Rate will be adjusted in accordance with this Section 7.6(b)
to the extent that such rights or warrants are not exercised prior to their
expiration.


(c)  In case the Company shall
distribute to all holders of its Common Stock any shares of capital stock of
the Company, evidences of indebtedness or other non-Cash assets, or rights or
warrants (excluding (i) dividends, distributions and rights or warrants
referred to in subsection (a) or (b) of this Section 7.6, (ii)
distributions referred to in subsection (e) of this Section 7.6 and
(iii) the distribution of rights pursuant to a shareholder rights plan for
which provision has been made in accordance with the third paragraph of this Section
7.6(c), the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
record date for the distribution by a fraction of which (A) the numerator shall
be the Current Market Price per share (as defined in subsection (f) of
this Section 7.6)) of the Common Stock on such record date and (B) the
denominator shall be an amount equal to (I) such Current Market Price per share
less (II) the fair market value on such record date (as determined 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) of the portion of the capital stock, evidences of indebtedness
or other non-Cash assets so distributed or of such rights or warrants
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 record
date); provided, however,
that, in the 



 36
 









 


event the then
fair market value (as so determined) of the portion of the capital stock,
evidences of indebtedness or other non-Cash assets so distributed or of such
rights or warrants 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, then, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive upon
conversion (in addition to any other consideration payable hereunder upon
conversion) the amount of capital stock, evidences of indebtedness or other
non-Cash assets so distributed or of such rights or warrants such Holder would
have received had such Holder converted each Security on such record date.  In no event shall the Conversion Rate be
decreased pursuant to this Section 7.6(c).  Such adjustment (if any) shall be made
successively whenever any such distribution is made and shall become effective
immediately after such record 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 which would then be in effect if
such dividend or distribution had not been declared.  If the Board of Directors of the Company
determines the fair market value of any distribution for purposes of this Section
7.6(c) 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 applicable Current Market Price per share of
Common Stock.


The Company shall make
adequate provisions such that, upon any conversion of the Securities into Common
Stock, to the extent that any new shareholder rights plan (i.e., poison pill)
hereafter implemented by the Company is in effect upon such conversion, the
Holders of Securities will receive, in addition to the Common Stock and other
consideration payable hereunder upon conversion, the rights described in any
new rights plan (whether or not the rights have separated from the Common Stock
at the time of conversion), subject to the limitations set forth in any new
rights plan.  Any distribution of rights or
warrants pursuant to any new 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 7.6(c).


(d)  In case the Company shall
dividend or distribute (other than in connection with a liquidation,
dissolution or winding up of the Company) Cash to all holders of Common Stock
(other than a distribution requiring an adjustment to the Conversion Rate
pursuant to Section 7.6(e)), the Conversion Rate shall be increased
by multiplying the Conversion Rate in effect immediately prior to the close of
business on the record date for the determination of holders of Common Stock
entitled to such dividend or distribution by a fraction (A) whose numerator
shall be the average of the Volume-Weighted Average Prices per share of Common
Stock (or, if such Volume-Weighted Average Prices are not available, the
Closing Sale Prices) for the five consecutive Trading Days ending on the date
immediately preceding the “ex” date (as defined in Section 7.6(f))
for such dividend or distribution (which average shall be appropriately
adjusted by the Board of Directors, in its good faith determination (which
determination shall be described in a resolution of the Board of Directors), to
account for any adjustment, pursuant hereto, to the Conversion Rate that shall
become effective, or any event requiring, pursuant hereto, an adjustment to the
Conversion Rate where the “ex” date of such event occurs, at any time during
such five consecutive Trading Days); and (B) whose denominator shall be an
amount equal to (I) such average Volume-Weighted Average Price (or, if
applicable, average Closing Sale Price) per share of Common Stock less (II) the
amount per share of Common Stock of such dividend or distribution; provided, however, that
the Conversion Rate shall not be adjusted pursuant to this 



 37
 









Section 7.6(d)
to the extent, and only to the extent, such adjustment would cause the
Conversion Price to be less than par value of the Common Stock (which minimum
amount shall be appropriately adjusted to reflect stock dividends on, and
subdivisions, combinations or reclassifications of, Common Stock); provided
further that, if the denominator of such fraction shall be equal to or less
than zero, the Conversion Rate shall be instead adjusted so that the Conversion
Price is equal to par value of the Common Stock (as adjusted in accordance with
the immediately preceding proviso).  An
adjustment to the Conversion Rate pursuant to this Section 7.6(d)
shall become effective immediately prior to the opening of business on the
Business Day immediately following such record date.  In no event shall the Conversion Rate be
decreased pursuant to this Section 7.6(d).


(e)  In case the Company or any
Subsidiary of the Company shall distribute Cash or other consideration in
respect of a tender offer or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Common Stock where the
sum of the aggregate amount of such Cash distributed and the aggregate fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and set forth in a resolution of the Board of
Directors), as of the Expiration Date (as defined below), of such other
consideration distributed (such sum, the “Aggregate Amount”) expressed
as an amount per share of Common Stock validly tendered or exchanged, and not
withdrawn, pursuant to such tender offer or exchange offer as of the Expiration
Time (as defined below) (such tendered or exchanged shares of Common Stock, the
“Purchased Shares”) exceeds the Current Market Price per share (as
determined in accordance with subsection (f) of this Section 7.6)
of Common Stock on the last date (such last date, the “Expiration Date”)
on which tenders or exchanges could have been made pursuant to such tender
offer or exchange offer (as the same may be amended through the Expiration
Date), then the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
Expiration Date by a fraction (A) whose numerator is equal to the sum of (I)
the Aggregate Amount and (II) the product of (a) the Current Market Price per
share of Common Stock (as determined in accordance with subsection (f) of
this Section 7.6) on the Expiration Date and (b) an amount equal to
the number of shares of Common Stock outstanding as of the last time (the “Expiration
Time”) at which tenders or exchanges could have been made pursuant to such
tender offer or exchange offer (excluding Purchased Shares and shares held at
such time in the treasury of the Company) and (B) whose denominator is equal to
the product of (I) the number of shares of Common Stock outstanding as of the
Expiration Time (including all Purchased Shares but excluding shares held at
such time in the treasury of the Company) and (II) such Current Market Price
per share of Common Stock on the Expiration Date.  An increase, if any, to the Conversion Rate
pursuant to this Section 7.6(e) shall become effective immediately
prior to the opening of business on the “ex” date.  In the event that the Company or a Subsidiary
of the Company is obligated to purchase shares of Common Stock pursuant to any
such tender offer or exchange offer, but the Company or such Subsidiary is
permanently prevented by applicable law from effecting any such purchases, or
all such purchases are rescinded, then the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if such tender
offer or exchange offer had not been made. 
If the application of this Section 7.6(e) to any tender
offer or exchange offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer or exchange offer under this Section 7.6(e).



 38
 









 


(f)  For the purpose of making a
computation pursuant to this Section 7.6, the current market price
(the “Current Market Price”) on a date of determination shall mean the
average of the Closing Sale Prices per share of Common Stock for the five
consecutive Trading Days ending on the date of determination; provided, however, that
such Current Market Price shall be appropriately adjusted by the Board of
Directors, in its good faith determination (which determination shall be
described in a resolution of the Board of Directors), to account for any
adjustment pursuant hereto (other than the adjustment requiring such
computation) to the Conversion Rate that shall become effective, or any event
(other than the event requiring such computation) requiring, pursuant hereto,
an adjustment to the Conversion Rate where the “ex” date of such event occurs,
at any time during such five consecutive Trading Days.  For purposes hereof, the term “ex” date means
(i) when used with respect to any dividend or distribution, the first date on
which the Common Stock trades, regular way, on the relevant exchange or in the
relevant market from which the Closing Sale Price was obtained without the
right to receive such dividend or distribution; and (ii) when used with respect
to any tender offer or exchange offer, the first date on which the Common Stock
trades, regular way, on the relevant exchange or in the relevant market from
which the Closing Sale Price was obtained after the Expiration Time.


(g)  In any case in which this Section 7.6
shall require that an adjustment be made following a record date or Expiration
Date, as the case may be, established for purposes of this Section 7.6,
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 7.9)
issuing to the Holder of any Security converted after such record date or
Expiration Date the shares of Common Stock and other capital stock of the
Company, evidences of indebtedness or other non-Cash assets or rights or
warrants issuable upon such conversion over and above Cash payable, or the
shares of Common Stock and other capital stock of the Company, evidences of
indebtedness or other non-Cash assets or rights or warrants issuable, upon such
conversion only on the basis of the Conversion Rate prior to adjustment; and,
in lieu of the shares, evidences of indebtedness or other non-Cash assets or
rights or warrants the issuance of which, or Cash the payment 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 shares or Cash, as the case may be.  If any distribution in respect of which an
adjustment to the Conversion Rate is required to be made as of the record date
or Expiration Date therefor 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
effective date or Expiration Date had not occurred.


SECTION 7.7. 
No Adjustment.  No
adjustment in the Conversion Rate shall be required unless the adjustment would
result in a change in the Conversion Rate of at least 1%; provided, however,
that any adjustment which by reason of this Section 7.7 is not required
to be made shall be carried forward and taken into account in subsequent
adjustments.  All calculations under this
Article VII shall be made to the nearest one-thousandth of a cent or to the
nearest one-thousandth of a share, as the case may be.


Except as otherwise
provided for in this Indenture, the Company shall not be required to adjust the
Conversion Rate for the issuance of its Common Stock or any securities
convertible or exchangeable for its Common Stock or the right to purchase its
Common Stock or such convertible or exchangeable securities.



 39
 









 


No adjustment need be
made for (i) issuances of Common Stock pursuant to a Company plan for reinvestment
of dividends or interest or the investment or additional optional amounts
thereunder in shares of Common Stock or for a change in the par value or a
change to no par value of the Common Stock or (ii) upon the issuance of any
shares of Common Stock or options or rights to purchase shares of Common Stock
pursuant to any present or future employee, director or consultant benefit plan
or program of or assumed by the Company or any of its subsidiaries.


To the extent that the
Securities become convertible into the right to receive Cash, interest will not
accrue on such Cash.


No adjustment to the
Conversion Rate need be made pursuant to Section 7.6 for a
transaction if Holders are to participate in the transaction without conversion
on a basis and with notice that the Board of Directors of the Company
determines in good faith to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction.


No adjustment to the
Conversion Rate need be made upon the issuance of any shares of Common Stock
pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the date the Securities were first
issued.


No adjustment to the
Conversion Rate need be made for accrued and unpaid interest, including
additional interest, if any.


SECTION 7.8. 
Other Adjustments.  Subject
to applicable stock exchange rules and listing standards, the Company shall be
entitled to increase the Conversion Rate by any amount for a period of at least
20 days if the Company’s Board of Directors determines that such increase would
be in the best interests in the Company, provided the Company has given to
Holders at least 15 days’ prior notice, in accordance with Section 16.2,
of any such increase in the Conversion Rate. 
Subject to applicable stock exchange rules and listing standards, the
Company shall be entitled to increase the Conversion Rate, in addition to the
events requiring an increase in the Conversion Rate pursuant to Section 7.6,
as it in its discretion shall determine to be advisable in order to avoid or
diminish any tax to stockholders in connection with any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders.


SECTION 7.9. 
Notice of Adjustment. 
Whenever the Conversion Rate or conversion privilege is adjusted, the
Company shall promptly mail to Securityholders a notice of the adjustment in
accordance with Section 16.2, and file with the Trustee an Officers’
Certificate briefly stating the Conversion Rate, the facts requiring the
adjustment and the manner of computing it. 
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 7.10. 
[Reserved]


SECTION 7.11. 
Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege.  If (1) there
shall occur (a) any reclassification of the Company’s Common Stock (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination); (b) a statutory
share exchange, consolidation, merger 



 40
 









or combination involving the Company other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Common Stock; or (c) a
sale or conveyance as an entirety or substantially as an entirety of the
property and assets of the Company, directly or indirectly, to another Person;
and (2) pursuant to such reclassification, statutory share exchange,
consolidation, merger, combination, sale or conveyance, holders of outstanding
shares of Common Stock would be entitled to receive stock (other than Common
Stock), other securities, other property, assets or Cash for such shares of
Common Stock, then the Company, or such successor or surviving, purchasing or
transferee Person, as the case may be, shall, as a condition precedent to such
reclassification, statutory share exchange, consolidation, merger, combination,
sale or conveyance, execute and deliver to the Trustee a supplemental indenture
providing that, at and after the effective time of such reclassification,
statutory share exchange, consolidation, merger, combination, sale or
conveyance, the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of shares of stock and other
securities and property (including Cash) receivable upon such reclassification,
statutory share exchange, consolidation, merger, combination, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Security immediately prior to such reclassification,
statutory share exchange, consolidation, merger, combination, sale or
conveyance, assuming that such Holder would not have exercised any rights of
election that such Holder would have had as a holder of Common Stock to select
a particular type of consideration.  Such
supplemental indenture shall provide for adjustments of the Conversion Rate
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Rate provided for in this Article VII.  If, in the case of any such reclassification,
statutory share exchange, consolidation, merger, combination, sale or
conveyance, the stock or other securities and property (including Cash)
receivable thereupon by a holder of Common Stock include shares of stock or
other securities and property of a Person other than the successor or
surviving, purchasing or transferee Person, as the case may be, in such
reclassification, statutory share exchange, consolidation, merger, combination,
sale or conveyance, then such supplemental indenture shall also be executed by
such other Person and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors of the
Company shall reasonably consider necessary by reason of the foregoing.  The provisions of this Section 7.11
shall similarly apply to successive reclassifications, statutory share
exchanges, consolidations, mergers, combinations, sales and conveyances.  The foregoing, however, shall not in any way
affect the right a Holder of a Security may otherwise have pursuant to Section 7.6(c)
to receive rights and warrants in accordance therewith.


In the event the Company
shall execute a supplemental indenture pursuant to this Section 7.11,
the Company shall promptly file with the Trustee (x) an Officers’ Certificate
briefly stating the reasons therefor, the kind or amount of shares of stock or
other securities or property (including Cash) receivable by Holders of the
Securities upon the conversion of their Securities after any such
reclassification, statutory share exchange, consolidation, merger, combination,
sale or conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been satisfied and (y) an Opinion of Counsel that the
execution of the Supplemental Indenture is authorized or permitted under the
terms of this Indenture and that all conditions precedent to the execution
thereof have been satisfied, and shall promptly mail notice thereof to all
Holders.


SECTION 7.12. 
Trustee’s Disclaimer.  The
Trustee shall have no duty to determine when an adjustment under this Article
VII 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 



 41
 









such adjustment set forth in, 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 7.9.  The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure
to comply with any provisions of this Article VII.


The Trustee shall not be
under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 7.11,
but may accept as conclusive evidence of the correctness thereof, and shall be
fully protected in relying upon, the Officers’ Certificate and Opinion of
Counsel with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 7.11.


SECTION 7.13. 
Option to Satisfy Portion of Remaining Conversion Obligation with
Cash or Combination of Cash and Common Stock.  (a)  To
satisfy the Company’s obligation in respect of any amount by which the
Conversion Value exceeds the principal amount of such Securities, upon
conversion of the Securities (the “Remaining Conversion Obligation”),
the Company may elect to deliver, Cash or a combination of Cash and shares of
Common Stock in accordance with the provisions of this Indenture.  The Company shall notify the Holders through
the Trustee (at the sole cost and expense of the Company) of the method the
Company chooses to satisfy its Remaining Conversion Obligation as follows: (i)
in the Company’s Notice of Redemption, if the Company has called the Securities
for redemption and (ii) no later than two Trading Days immediately following
the Conversion Date in all other cases (such period, the “Settlement Notice
Period”).  If the Company fails to
give the notice described in the preceding sentence within the prescribed time
periods, then the Company shall satisfy its Remaining Conversion Obligation
only in shares of Common Stock (and Cash in lieu of fractional shares).  If the Company elects to satisfy any portion
of its Remaining Conversion Obligation in Cash, the Company shall specify in
such notice the amount to be satisfied in Cash as a percentage of the Remaining
Conversion Obligation.  The Company shall
treat all Holders converting on the same Trading Day in the same manner.  The Company shall not have any obligation to
satisfy its Remaining Conversion Obligations arising on different Trading Days
in the same manner.


Settlement amounts will
be computed by the Company as follows:


(1)  a Cash amount (the “Principal Return”)
equal to the lesser of (a) the aggregate principal amount of Securities to be
converted or (b) the product of (i) a number equal to (A) the aggregate
principal amount of Securities to be converted divided by 1,000 and multiplied
by (B) the applicable Conversion Rate and (ii) the Applicable Stock Price; and


(2)  (a)  if
the Company elects to satisfy any amount by which the product determined in
clause (1)(b) above exceeds the aggregate principal amount of  Securities surrendered for conversion in
shares of Common Stock, the Company shall deliver to the Holder a number of
shares of Common Stock equal to (i) (A) the aggregate principal amount of
Securities to be converted divided by 1,000 and multiplied by (B) the
applicable Conversion Rate minus (ii) the Cash amount determined pursuant to
clause (1) above divided by the Applicable Stock Price, plus Cash in lieu of
fractional shares;


(b)  if the Company elects to
satisfy any amount by which the product determined in clause (1)(b) above
exceeds the aggregate principal amount of Securities surrendered for conversion
in Cash, the Company shall deliver to the Holder Cash in an amount equal to the
product of:



 42
 









 


(i)  a number equal to (A) the aggregate principal
amount of Securities to be converted divided by 1,000 and multiplied by (B) (1)
the applicable Conversion Rate minus (2) $1,000 divided by the Applicable Stock
Price; and


(ii)  the Applicable Stock Price;
and


(c)  if the Company elects to
satisfy any amount by which the product determined in clause (1)(b) above
exceeds the aggregate principal amount of Securities surrendered for conversion
in a combination of Cash and shares of Common Stock, the Company shall deliver
to the Holder such combination in the respective amounts calculated in a manner
comparable to that used to settle any conversion (as described above), and with
the amount of Cash specified by the Company as contemplated in connection with
any such conversion.


With respect to each Holder that exercises
its conversion right in accordance with this Indenture, if such Holder’s
Conversion Notice has not been retracted as provided herein, assuming all of
the other requirements for conversion have been satisfied by such Holder, then
settlement in Cash or in a combination of Cash and shares of Common Stock, as
the case may be, shall occur on the second Trading Day following the final
Trading Day of the Cash Settlement Averaging Period.


SECTION 7.14. 
Effect of Conversion; Conversion After Record Date.  Except as provided in this Section 7.14,
a converting Holder of Securities shall not be entitled to receive any separate
Cash payments with respect to accrued and unpaid interest on any such
Securities being converted.  By delivery
to the Holder of the number of shares of Common Stock or other consideration
issuable or Cash payable upon conversion in accordance with this Article VII,
the Company will have satisfied its obligations with respect to the Securities
and any accrued and unpaid interest on such Securities will not be paid.  If any Securities are converted after the
close of business on an Interest Payment Record Date but prior to the corresponding
Interest Payment Date, the Holder of such Securities as of the close of
business on such Interest Payment Record Date shall receive, on such Interest
Payment Date, the interest payable on such Security on such Interest Payment
Date notwithstanding the conversion thereof; provided,
however, each Security
surrendered for conversion after the close of business on an Interest Payment
Record Date but prior to the corresponding Interest Payment Date shall be
accompanied by payment from the converting Holder thereof, for the account of
the Company, in Cash, an amount equal to the interest payable on such Security
on such Interest Payment Date; provided
further that no such payment need be made (a) if the Company has
specified a Redemption Date that is after the close of business on an Interest
Payment Record Date but prior to the corresponding Interest Payment Date or
that results in conversion prior to that Interest Payment Date, (b) any overdue
interest exists at the time of conversion with respect to such Security, but
only to the extent of the amount of such overdue interest or (c) the Holder
surrenders any Securities for conversion after the close of business on the
Interest Payment Record Date relating to the final Interest Payment Date.


Except as otherwise
provided in this Indenture, no payment or adjustments in respect of payments of
interest on Securities surrendered for conversion or any dividends or
distributions on the Common Stock issued upon conversion shall be made upon the
conversion of any Securities.


SECTION 7.15. 
Exchange in Lieu of Conversion. 
(a)  In lieu of it obligations
pursuant to Section 7.2, the Company may, at its option, direct the
Conversion Agent to surrender, on or prior to the date of determination of the
Applicable Stock Price, Securities tendered for conversion to a financial
institution (the “Financial Institution”) designated by the Company for
exchange in lieu 



 43
 









of conversion.  On the date of
this Indenture, the Company has designated each of Credit Suisse Securities
(USA) LLC and Deutsche Bank Securities LLC as a Financial Institution.  If the Financial Institution accepts any such
Securities surrendered for conversion, it shall deliver to the Conversion
Agent, in exchange for each $1,000 principal amount of such Securities, Cash in
an amount equal to the Principal Return, as well as Cash or a combination of
Cash and shares of Common Stock in respect of any remaining amount by which the
Conversion Value of such Securities exceeds the principal amount of such
Securities.  Any Cash amounts will be
based on the Applicable Stock Price.


(b)  If
the Financial Institution accepts any such Securities, it shall deliver such
Cash or combination of Cash and Common Stock, as the case may be, to the
Conversion Agent and the Conversion Agent shall deliver such Cash or
combination of Cash and Common Stock, as the case may be, to the Holder who has
tendered such Securities for conversion. 
If the Financial Institution agrees to accept any Securities for
exchange but does not timely deliver the related consideration, the Company
shall, as promptly as practical thereafter, but not later than the third
Business Day following determination of the Applicable Stock Price, convert
such Securities into Cash or a combination of Cash and shares of Common Stock,
if any, as provided in Section 7.2 above.


ARTICLE
VIII


Subsidiary
Guarantee


SECTION 8.1. 
Subsidiary Guarantors.  If
any Subsidiary of the Company to which the Company has transferred all or
substantially all of its assets after the date hereof shall (i) guarantee any
obligation of the Company evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses by the Company (other than the
Existing Securities) (each such obligation a “Debt Security”) or (ii)
issue Debt Securities, the Company shall (A) cause such Subsidiary concurrently
to become a Subsidiary Guarantor by executing and delivering to the Trustee a
supplemental indenture pursuant to which such Subsidiary shall unconditionally
guarantee (a “Subsidiary Guarantee”) all of the Company’s obligations
under the Securities and this Indenture on a senior unsecured basis, on terms
substantially consistent with guarantees of substantially similar debt
obligations, and, in the case of a Subsidiary referred to above in (i), to the
same extent as such Subsidiary guaranteed such other Debt Securities and (B)
cause an Opinion of Counsel to be delivered to the Trustee to the effect that
such supplemental indenture has been duly authorized and executed by each such
Person and constitutes the valid, binding and enforceable obligation of each
such Person (subject to customary exceptions concerning creditors’ rights and
equitable principles).


Such supplemental
indenture shall be executed by manual signature on behalf of each respective
Subsidiary Guarantor by any one of such Subsidiary Guarantor’s Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, Chief Executive
Officer, President or Chief Financial Officer or Vice Presidents, attested by
its Secretary or Assistant Secretary.


Such supplemental
indenture bearing the manual signatures of individuals who were at any time the
proper officers of a Subsidiary Guarantor shall bind such Subsidiary Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the execution and delivery of the supplemental indenture or
did not hold such offices at the date of such supplemental indenture.



 44















SECTION 8.2. 
Subsidiary Guarantors May Consolidate, etc., on Certain Terms.  Nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of any Subsidiary
Guarantor with or into the Company or any other Subsidiary Guarantor or shall
prevent any sale or conveyance of the property of any Subsidiary Guarantor as
an entirety or substantially as an entirety to the Company or any other
Subsidiary Guarantor.


SECTION 8.3. 
 Release of Subsidiary
Guarantors.  If any Subsidiary
Guarantor sells or otherwise disposes of all or substantially all of its assets
(by way of merger, consolidation or otherwise) to the Company or a Subsidiary
of the Company and (a) in the case of a Subsidiary referred to in Section 8.1(i)
hereof, such Subsidiary is no longer a guarantor of any Debt Securities of the
Company, or (b) in the case of a Subsidiary referred to in Section 8.1(ii)
hereof, such Subsidiary is no longer an issuer of any Debt Securities, and (i)
if the acquiring Person is a Subsidiary of the Company, such subsidiary shall
provide a Subsidiary Guarantee on the terms set forth in Section 8.1
hereof and (ii) in any such case, if the Company shall deliver to the Trustee
an Officers’ Certificate certifying to that effect as of the date of such
Officers’ Certificate, then automatically, without the requirement of any
further action by the Company, such Subsidiary or the Trustee, such Subsidiary
shall cease to be a Subsidiary Guarantor hereunder.  The Trustee shall, at the Company’s expense,
execute and deliver such instruments as the Company may reasonably request to
evidence such termination.


SECTION 8.4. 
Guaranties.  Each
Subsidiary Guarantor hereby unconditionally and irrevocably guarantees, jointly
and severally, to each Holder and to the Trustee and its successors and assigns
(a) the full and punctual payment of principal of and interest on the
Securities when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this
Indenture and the Securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company under
this Indenture and the Securities (all the foregoing being hereinafter
collectively called the “Guaranteed Obligations”).  Each Subsidiary Guarantor further agrees that
the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice or further assent from such Subsidiary Guarantor and that such
Subsidiary Guarantor shall remain bound under this Article VIII
notwithstanding any extension or renewal of any Obligation.


Each
Subsidiary Guarantor waives presentation to, demand of, payment from and
protest to the Company of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment.  Each
Subsidiary Guarantor waives notice of any default under the Securities or the
Guaranteed Obligations.  The obligations
of each Subsidiary Guarantor hereunder shall not be affected by (1) the
failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person (including
any Subsidiary Guarantor) under this Indenture, the Securities or any other
agreement or otherwise; (2) any extension or renewal of any thereof;
(3) any rescission, waiver, amendment or modification of any of the terms
or provisions of this Indenture, the Securities or any other agreement;
(4) the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations or any of them; (5) the failure of any Holder or
the Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (6) any change in the ownership of such Subsidiary
Guarantor.


Each
Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and
not a guarantee of collection) and waives any right to require that any resort
be had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.



 45
 









Except
as expressly set forth in Sections 15.1 and 8.3, the obligations of each
Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense of setoff, counterclaim, recoupment or termination whatsoever or
by reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise.  Without
limiting the generality of the foregoing, the obligations of each Subsidiary
Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any remedy under this Indenture, the Securities or any other agreement,
by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any other
act or thing or omission or delay to do any other act or thing which may or
might in any manner or to any extent vary the risk of such Subsidiary Guarantor
or would otherwise operate as a discharge of such Subsidiary Guarantor as a
matter of law or equity.


Each
Subsidiary Guarantor further agrees that its Guarantee herein shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Obligation is rescinded or
must otherwise be restored by any Holder or the Trustee upon the bankruptcy or
reorganization of the Company or otherwise.


In
furtherance of the foregoing and not in limitation of any other right which any
Holder or the Trustee has at law or in equity against any Subsidiary Guarantor
by virtue hereof, upon the failure of the Company to pay the principal of or
interest on any Guaranteed Obligation when and as the same shall become due,
whether at maturity, by acceleration, by redemption or otherwise, or to perform
or comply with any other Guaranteed Obligation, each Subsidiary Guarantor
hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in Cash, to the Holders or the Trustee an
amount equal to the sum of (A) the unpaid amount of such Guaranteed
Obligations, (B) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (C) all other
monetary Guaranteed Obligations of the Company to the Holders and the Trustee.


Each
Subsidiary Guarantor agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations hereby may be accelerated as provided in Article XI for
the purposes of such Subsidiary Guarantor’s Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guaranteed Obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such Guaranteed
Obligations as provided in Article XI, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section.


Each
Subsidiary Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys’ fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section.


SECTION 8.5.    Limitation on Liability.  Any term or provision of this Indenture to
the contrary notwithstanding, the maximum aggregate amount of the Guaranteed
Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.



 46
 









SECTION 8.6. 
Successors and Assigns. 
This Article VIII shall be binding upon each Subsidiary Guarantor and
its successors and assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.


SECTION 8.7. 
No Waiver.  Neither a
failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article VIII shall operate
as a waiver thereof, nor shall a single or partial exercise thereof preclude
any other or further exercise of any right, power or privilege.  The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have under
this Article VIII at law, in equity, by statute or otherwise.


SECTION 8.8. 
Modification.  No
modification, amendment or waiver of any provision of this Article VIII,
nor the consent to any departure by any Subsidiary Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  No notice to or demand on any Subsidiary
Guarantor in any case shall entitle such Subsidiary Guarantor to any other or
further notice or demand in the same, similar or other circumstances.


SECTION 8.9. 
Contribution.  Each Subsidiary Guarantor that makes a
payment under its Subsidiary Guarantee shall be entitled upon payment in full
of all Guaranteed Obligations under this Indenture to a contribution from each
other Subsidiary Guarantor in an amount equal to such other Subsidiary
Guarantor’s pro
rata
portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance with
GAAP.


ARTICLE
IX


Covenants


SECTION 9.1. 
Payment of Securities.  The
Company shall promptly make all payments in respect of the Securities on the
dates and in the manner provided in the Securities and this Indenture.  The principal amount, Redemption Price and
Put Price and accrued and unpaid interest shall be considered paid on the date
it is due if the Paying Agent holds by 10:00 a.m., New York City time, on such
date, in accordance with this Indenture, Cash designated and sufficient for the
payment of all such amounts then due. 
The Company shall, to the fullest extent permitted by law, pay interest
on overdue principal and overdue installments of interest at the rate borne by
the Securities per annum.  Except as
otherwise specified, all references in this Indenture or the Securities to
interest shall be deemed to include Additional Interest, if any, payable
pursuant to the Registration Rights Agreement.


The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue amounts from time to time on demand at the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. 
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.



 47
 









SECTION 9.2. 
Reports and Certain Information. 
(a)  The Company shall file with
the Trustee, within 15 days after it files them with the SEC, copies of its
annual report and the information, documents and other reports which the
Company is required to file with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act.  The Company shall comply
with the provisions of TIA Section 314(a), whether or not the Company is
required to file reports with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act.  Notwithstanding
anything to the contrary herein, the Trustee shall have no duty to review such
documents for purposes of determining compliance with any provisions of this
Indenture or any applicable law.


(b)  At
any time when the Securities are Restricted Securities, and the Company is not
subject to, or is not in compliance with, Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder or the holder of shares of Common
Stock issued upon conversion of Securities, the Company shall promptly furnish
or cause to be furnished Rule 144A Information (as defined below) to such Holder
or such holder of shares of Common Stock issued upon conversion of Securities,
or to a prospective purchaser of any such security designated by any such
Holder or holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the Securities Act in
connection with the resale of any such security.  “Rule 144A Information” shall mean
such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act or any successor provision.


(c) 
The Company shall notify the Trustee of any changes to its fiscal year.


SECTION 9.3. 
Compliance Certificates. 
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers’
Certificate signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company and at least one other
Officer of the Company, as to his or her knowledge of the Company’s compliance
with all terms, conditions and covenants under this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which he or she may have knowledge.


SECTION 9.4. 
Maintenance of Corporate Existence.  The Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence or, following any consolidation, merger, conveyance, transfer or
lease in accordance with Section 10.1, its legal existence as a
Person permitted to be the resulting, surviving or transferee Person in
accordance with Section 10.1.


SECTION 9.5. 
Stay, Extension and Usury Laws. 
The Company covenants, to the extent 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 amount, Redemption Price or Put Price in respect of Securities,
or any interest 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 shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee or any Agent, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.


SECTION 9.6. 
Maintenance of Office or Agency of the Trustee, Registrar, Paying
Agent and Conversion Agent.  The
Company shall maintain an office or agency of the Trustee, Registrar, Paying
Agent and Conversion Agent in the United States where Securities may be
presented or 



 48
 









surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, redemption, purchase or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served.  The
Company hereby designates the Corporate Trust Office as 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 Corporate Trust Office of the
Trustee).  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 16.2.


SECTION 9.7. 
Notice of Default.  In the
event that any Default or Event of Default shall occur, the Company shall give
prompt (and in any event within 5 days after the Company becomes aware of such
Default or Event of Default) written notice by an Officers’ Certificate of such
Default or Event of Default, and any remedial action proposed to be taken, to
the Trustee.


ARTICLE
X


Consolidation,
Merger, Conveyance, Transfer or Lease


SECTION 10.1. 
Company May Consolidate, etc., Only on Certain Terms.  The Company shall not consolidate with or
merge into any other Person or convey, transfer or lease all or substantially
all of the Company’s properties and assets to any successor Person, unless:


(1)  either:


(A)  the resulting, surviving or
transferee Person is the Company; or


(B)  the resulting, surviving or
transferee Person is organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company under the Securities and this Indenture;


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


(3)  the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel (upon which the Trustee may
conclusively rely), each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.


Notwithstanding
the foregoing, the Company may transfer all or substantially all of its assets
to a wholly owned Subsidiary without such Subsidiary assuming the obligations
of the Company under the Securities and this Indenture, provided that (i) such
Subsidiary shall be required to become a Subsidiary Guarantor pursuant to Section 8.1
hereof if the Company issues Debt Securities and any of the Company’s
Subsidiaries guarantee such Debt Securities, (ii) such Subsidiary is organized
and validly existing under the laws of the United States of America, any 



 49
 









State thereof or the District of Columbia, (iii)
immediately after giving effect to such transfer, no Default or Event of
Default shall have occurred and be continuing and (iv) the Company has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel (upon which
the Trustee may conclusively rely), each stating that such transfer complies
with this Article and that all conditions precedent herein provided for
relating to such transfer have been complied with.


SECTION 10.2. 
Successor Substituted. 
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance
with Section 10.1, 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, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.


ARTICLE
XI


Default
and Remedies


SECTION 11.1. 
Events of Default.  An “Event
of Default” shall occur if:


(1)  the Company defaults in the payment of any
principal of any of the Securities when the same becomes due and payable
(whether at maturity, upon Redemption, on a Put Purchase Date or otherwise);


(2)  the Company defaults in the payment of any
accrued and unpaid interest (including Additional Interest, if any when due and
payable, and such default continues for a period of 30 days;


(3)  the Company fails to satisfy its Remaining
Conversion Obligations upon exercise of a Holder’s conversion rights pursuant
hereto, which default continues for 15 days;


(4)  the Company fails to provide the Fundamental
Change Company Notice when required by this Indenture;


(5)  the Company fails to comply with any of its
other agreements contained in the Securities or in this Indenture (other than
those referred to in clauses 1 through 4 above or clause 9 below) and such
failure continues for 60 days after receipt by the Company of a Notice of
Default;


(6)  the Company or any Significant Subsidiary
fails to make any payment of principal in excess of $30,000,000 in respect of
indebtedness for borrowed money, when and as the same shall become due and
payable, whether at maturity or upon acceleration, and such indebtedness is not
paid, or such acceleration is not rescinded, by the end of the 30th day after
receipt by the Company or such Significant Subsidiary of a Notice of De-fault;


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



 50
 









(A)  commences a voluntary case
or proceeding;


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


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


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


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


(A)  is for relief against the
Company or a Significant Subsidiary in an involuntary case or proceeding;


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


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


and in each case
of this subclause (8) 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 “Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law.


(9)  The Company fails to perform or comply with
Article VIII hereof, or any Subsidiary Guarantee ceases to be in full force and
effect (other than in accordance with the terms of this Indenture) or is
declared to be null and void and unenforceable or the Subsidiary Guarantee is
found to be invalid or a Subsidiary Guarantor that is a Significant Subsidiary
denies its liability under its Subsidiary Guarantee (other than by reason of
release of the Subsidiary Guarantor in accordance with the terms of this
Indenture).


A
default under clause (5) or (6) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding notify the Company and the
Trustee, in writing of the Default, and the Company does not cure the Default
(and such Default is not waived) within the time period specified in clauses
(5) or (6) above, as applicable, after actual receipt of such notice.  The notice given pursuant to this Section 11.1
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 11.1 is cured in accordance
herewith, it shall cease to be a Default.


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 at the
Corporate Trust Office of the Trustee by the Company (including, without
limitation, pursuant to Section 9.3), a Paying Agent, any Holder or
any agent of any Holder, which notice references the Securities and this
Indenture.



 51
 









SECTION 11.2. 
Acceleration.  If an Event
of Default (other than an Event of Default with respect to the Company
specified in clause (7) or (8) of Section 11.1) occurs and is
continuing, 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 all unpaid principal of plus
interest (including Additional Interest, if any) accrued and unpaid through the
date of such declaration on all the Securities then outstanding to be due and
payable upon any such declaration, and the same shall thereupon become and be
immediately due and payable.


If an
Event of Default with respect to the Company specified in clause (7) or (8) of Section 11.1
occurs, all unpaid principal of plus accrued and unpaid interest (including
Additional Interest, if any) on all the Securities then outstanding shall ipso
facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.


The
Holders of a majority in aggregate principal amount of the Securities then
outstanding or the Holders originally causing the acceleration by notice to the
Trustee may rescind an acceleration of Securities and its consequences before a
judgment or decree for the payment of money has been obtained by the Trustee if
(a) the rescission would not conflict with any existing order or decree, (b)
all existing Events of Default, other than the nonpayment of the principal of
plus accrued and unpaid interest on the Securities that has become due solely
by such declaration of acceleration, have been cured or waived and (c) all payments
due to the Trustee and any predecessor Trustee under Section 12.6
have been made.  No such rescission shall
affect any subsequent Default or impair any right consequent thereto.


SECTION 11.3. 
Other Remedies.  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 the payment of the principal of or accrued and unpaid interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.


The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Securityholder 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 law.


SECTION 11.4. 
Waiver of Defaults and Events of Default.  Subject to Sections 11.7 and 13.2,
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 consequence, except a Default or Event of Default in the
payment of the principal of, or any interest (including Additional Interest, if
any) on any Security, or the payment of any applicable Fundamental Change
Purchase Price or Redemption Price, or a failure by the Company to convert any
Securities in accordance with Article VII or any Default or Event of Default in
respect of any provision of this Indenture or the Securities that, under Section
13.2, cannot be modified or amended without the consent of the Holders of
each outstanding Security.  When a
Default or Event of Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent
right.  This Section 11.4
shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.


SECTION 11.5. 
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 



 52
 









any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it under this Indenture.  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 reasonably satisfactory to it; provided that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction; provided further that
this provision shall not affect the rights of the Trustee set forth in Section 12.1(b)(v).  This Section 11.5 shall be in
lieu of Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A)
is hereby expressly excluded from this Indenture, as permitted by the TIA.


SECTION 11.6. 
Limitations on Suits. 
Subject to Section 11.7, a Holder of a Security may not
pursue any remedy with respect to this Indenture or the Securities 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
security or indemnity reasonably satisfactory 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 notice, request and the offer of security
or indemnity; and


(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.


A
Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over such other
Securityholder.


SECTION 11.7. 
Rights of Holders to Receive Payment and to Convert.  Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of the
principal amount, Redemption Price, Fundamental Change Purchase Price or interest
(including Additional Interest, if any) on any Security, on or after the
respective due dates expressed in the Security and this Indenture, to convert
such Security in accordance with Article VII and to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.


SECTION 11.8. 
Collection Suit by Trustee. 
If an Event of Default in the payment of principal or interest specified
in clause (1) or (2) of Section 11.1 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 the amounts provided for in Section 12.6.


SECTION 11.9. 
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 



 53
 









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 Custodian 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 12.6,
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.


SECTION 11.10.  Priorities.  Any money or property collected by the
Trustee pursuant to this Article XI, and after an Event of Default, any money
or other property distributable in respect of the Company’s obligations under
this Indenture shall be paid out in the following order:


First, to the
Trustee (including any predecessor Trustee) for amounts due under Section 12.6;


Second, to
Securityholders for amounts due and unpaid on the Securities for the principal
amount, Redemption Price, Fundamental Change Purchase Price or interest
(including Additional Interest, if any), as the case may be, ratably, without
preference or priority of any kind, according to such amounts due and payable
on the Securities; and


Third, the
balance, if any, to the Company.


The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 11.10. 
At least 15 days before such record date, the Trustee shall mail to each
Holder and the Company a notice that states the record date, the payment date
and the amount to be paid.


SECTION 11.11.  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 11.11 does not apply to a suit made by the
Trustee, a suit by a Holder pursuant to Section 11.7, or a suit by
Holders of more than 25% in aggregate principal amount of the Securities then
outstanding.  This Section 11.11
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.


SECTION
11.12.  Delay or Omission Not Waiver.  No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.  Every right and remedy given by this Article
XI or by law to the Trustee or 



 54
 









to the Holders may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders, as the case may be.


ARTICLE
XII


Trustee


SECTION 12.1. 
Certain Duties and Responsibilities of Trustee.  (a)  In
case an Event of Default with respect to the Securities has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to the
Securities such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.


(b) 
prior to the occurrence of an Event of Default with respect to the
Securities and after the curing or waiving of all such Events of Default with
respect to the Securities that may have occurred:


(1)  the duties and obligations of the Trustee
shall with respect to the Securities be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect
to the Securities except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


(2)  in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein);


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


(i)  This subsection shall
not be construed to limit the effect of Section 12.1(b).


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


(iii)  the Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a
majority in principal amount of the Securities at the time Outstanding
(determined as provided in Section 2.8) relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under this
Indenture with respect to the Securities; and



 55
 









(iv)  None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.


(d) 
Whether or not expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability or affording protection to
the Trustee (in any capacity, including Paying Agent, Registrar or Conversion
Agent) shall be subject to the provisions of this Section.


SECTION 12.2. 
Certain Rights of Trustee. 
Except as otherwise provided in Section 12.1:


(a)  The Trustee may conclusively
rely and shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security or other paper or document
(whether in original or facsimile form) believed by it in good faith to be
genuine and to have been signed or presented by the proper party or
parties.  The Trustee need not
investigate any fact or matter stated in any such document;


(b)  Any request, direction,
order or demand of the Company mentioned herein shall be sufficiently evidenced
by a resolution of the Company’s Board of Directors or an instrument signed in
the name of the Company, by one or more Officers thereof (unless other evidence
in respect thereof is specifically prescribed herein);


(c)  Before the Trustee acts or
refrains from acting, it may require an Officers’ Certificate or an Opinion of
Counsel or both.  The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers’ Certificate or Opinion of Counsel.  The Trustee may consult with counsel of its
own selection and the advice of such counsel and Opinions of Counsel with
respect to legal matters relating to this Indenture and the Securities shall be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;


(d)  The Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities that may be incurred therein or
thereby;


(e)  The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith and believed
by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;


(f)  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, consent, order, approval, bond, security, or other papers or
documents, but the Trustee, in its discretion, may make even 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 



 56
 









shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.


(g)  The Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;


(h)  The Trustee shall not be
deemed to have knowledge or be charged with knowledge of an Event of Default
except (i) if the Trustee is acting as Paying Agent, any Default or Event of
Default occurring pursuant to Sections 9.1, 11.1(1) or 11.1(2)
and (ii) any Default or Event of Default of which the Trustee shall have
received written notification which references the Securities and this Indenture
or of which a Trust Officer shall have obtained actual knowledge.  Delivery of reports, information and
documents to the Trustee under Section 9.2 is for informational
purposes only and the Trustee’s receipt of the foregoing 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, except as otherwise provided herein);


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


(j)  The permissive right of the
Trustee to take or refrain from taking any actions enumerated in this Indenture
shall not be construed as a duty;


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


(l)  Anything in this Indenture
notwithstanding, in no event shall the Trustee be liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including but
not limited to loss of profit), even if the Trustee has been advised as to the
likelihood of such loss or damage and regardless of the form of action; and


(m)  The Trustee shall not be
responsible or liable for any failure or delay in the performance of its
obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other
military disturbances; sabotage; epidemics; riots; interruptions; loss or
malfunctions of utilities, computer (hardware or software) or communication
services; accidents; labor disputes; acts of civil or military authority and
governmental action.


SECTION 12.3. 
Trustee Not Responsible for Recitals or Issuance or Securities.  (a) 
The recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.



 57















(b)  The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities.


(c)  The Trustee or any
Authorized Agent shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture or established pursuant to Section 2.1,
or for the use or application of any moneys received by any Paying Agent other
than the Trustee.


SECTION 12.4.  May Hold
Securities.  The Trustee or any
Paying Agent or Security Registrar, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Section 12.16,
may otherwise deal with the Company or Subsidiary Guarantor with the same
rights it would have if it were not Trustee, Paying Agent or Security
Registrar.


SECTION 12.5.  Moneys Held in
Trust.  Subject to the provisions of Section 11.5,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
law.  The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree in writing with the Company to pay thereon.


SECTION 12.6.  Compensation
and Reimbursement.  (a)  The Company covenants and agrees to pay to
the Trustee, and the Trustee shall be entitled to, such compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company shall pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from the Trustee’s gross
negligence, bad faith or willful misconduct. 
The Company and the Subsidiary Guarantors, jointly and severally,
covenant and agree to indemnify the Trustee (and its officers, agents,
directors, stockholders and employees) for, and to hold it harmless against,
any loss, liability or expense (including, without limitation, reasonable
attorney’s fees and expenses) incurred without gross negligence or bad faith or
willful misconduct on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of
liability in the premises.


(b)  The obligations of the
Company and the Subsidiary Guarantors under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness
hereunder.  Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders.


(c)  When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 11.1(7)
or (8) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.


(d)  For the purposes of this Section 12.6,
the “Trustee” shall include any predecessor Trustee; provided,
however, that the gross negligence, bad
faith or willful misconduct of any



 58
 









Trustee or
other indemnified party hereunder shall not affect the rights of any other
Trustee hereunder.


(e)  The provisions of this
Section shall survive the discharge of this Indenture and resignation or
removal of the Trustee.


SECTION 12.7.  Reliance on
Officers’ Certificate.  Except as
otherwise provided in Section 12.1, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering
or omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of bad
faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers’ Certificate or Opinion of Counsel delivered to the
Trustee and such certificate, in the absence of bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.


SECTION 12.8.  Disqualification:
Conflicting Interests.  If the Trustee
has or shall acquire any “conflicting interest” within the meaning of
Section 310(b) of the TIA, the Trustee and the Company shall in all
respects comply with the provisions of Section 310(b) of the TIA.


SECTION 12.9.  Corporate
Trustee Required; Eligibility.  There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the SEC, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus, or being a member of a bank
holding company with a combined capital and surplus, of at least 50 million
U.S.  dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial or District of
Columbia authority.  If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.  In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 12.10.


SECTION 12.10.  Resignation
and Removal; Appointment of Successor. 
(a)  The Trustee or any successor
hereafter appointed may at any time resign as Trustee with respect to the
Securities by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Register.  Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to the
Securities by or pursuant to a resolution of the Board of Directors.  If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to the Securities, or any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee, in either case at the sole cost and expense of the
Company.  Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



 59
 









(b)  In case at any time any one
of the following shall occur:


(i)  the Trustee shall fail to comply with the
provisions of Section 12.8 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months; or


(ii)  the Trustee shall cease to be eligible in
accordance with the provisions of Section 12.9 and shall fail to
resign after written request therefor by the Company or by any such
Securityholder; or


(iii)  the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,


then, in any such case,
the Company may remove the Trustee with respect to all Securities and appoint a
successor trustee by or pursuant to a resolution of the Company’s Board of
Directors, or, unless the Trustee’s duty to resign is stayed as provided
herein, subject to Section 11.11, any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months may, on
behalf of that Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee.  Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


(c)  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may at any time
remove the Trustee by so notifying the Trustee and the Company and may appoint
a successor Trustee with the consent of the Company.  If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after such notification
of removal by the Holders, the Trustee to be removed may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to the Securities, or any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee, in either case at the sole cost and expense of the
Company.  Such court may, as it may deem
proper prescribe or appoint a successor trustee.


(d)  Notwithstanding anything herein to the
contrary, any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities pursuant to any of the
provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 12.11.


(e)  So long as no event which is, or after notice
or lapse of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee appointed by
the Holders of a majority in principal amount of the Securities at that time
outstanding pursuant to Subsection (c) of this Section, if the Company
shall have delivered to the Trustee (i) a resolution of the Company’s Board of
Directors appointing a successor Trustee, effective as of a date specified
therein, and (ii) an instrument of acceptance of such appointment, effective as
of such date, by such successor Trustee in accordance with Section 12.11,
the Trustee shall be deemed to have resigned as contemplated in
Subsection (a) of this Section, the successor Trustee shall be deemed to
have been appointed by the Company pursuant to Subsection (a) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 12.11, all as of such date, and all other
provisions of this Section and Section 12.11 shall



 60
 









be applicable to such
resignation, appointment and acceptance except to the extent inconsistent with
this Subsection (e).


(f)  At any time there shall be
only one Trustee with respect to the Securities.


SECTION 12.11.  Acceptance of
Appointment By Successor.  (a)  In case of the appointment hereunder of a
successor trustee with respect to the Securities, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges and all other amounts payable to it hereunder,
execute and deliver an instrument transferring to such successor trustee all
the rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section 12.6(b).


(b)  Upon request of any such
successor trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (a) of this Section.


(c)  No successor trustee shall
accept its appointment unless at the time of such acceptance such successor
trustee shall be qualified and eligible under this Article XII.


(d)  Upon acceptance of
appointment by a successor trustee as provided in this Section, the Company
shall transmit notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Register.  If
the Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.


SECTION 12.12.  Merger,
Conversion, Consolidation or Succession to Business.  Any corporation or other business entity into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or other business entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or other business entity succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or other business entity shall be qualified
under the provisions of Section 12.8 and eligible under the
provisions of Section 12.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. 
In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.


SECTION 12.13.  Preferential
Collection of Claims Against the Company. 
The Trustee shall comply with Section 311(a) of the TIA, excluding
any creditor relationship described in Section 311(b) of the TIA.  A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the TIA to the extent included
therein.



 61
 









SECTION 12.14.  Notice of
Defaults.  If a Default or Event of
Default occurs and is continuing hereunder and if it is actually known to a
Trust Officer of the Trustee, the Trustee shall mail to each Holder notice of
the Default or Event of Default within 90 days after such Default or Event of
Default.  Except in the case of a default
in payment of principal of or interest (including Additional Interest, if any)
on any Security, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is not opposed to the interest of the Holders of such Securities.


SECTION 12.15.  Reports by
Trustee.  (a)  Within sixty (60) days after May 15 of
each year commencing with the year 2007, the Trustee shall transmit to
Securityholders such reports dated as of May 15 of the year in which such
report is made concerning the Trustee and its actions under this Indenture as
may be required pursuant to the TIA, including, without limitation,
Section 313(a) thereof, at the times and in the manner provided pursuant
thereto.  In the event that, on any such
reporting date, no events have occurred under the applicable sections of the TIA
within the 12 months preceding such reporting date, the Trustee shall be under
no duty or obligation to provide such reports. 
The Trustee shall also comply with TIA Section 313(b)(2).  The Trustee shall transmit by mail all
reports as required by TIA Section 313(c).


(b)  A copy of each such report
shall, at the time of such transmission to Securityholders, be delivered to the
Company and filed by the Trustee with each stock exchange upon which the
Securities are listed and with the SEC in accordance with TIA
Section 313(d).  The Company shall
notify the Trustee when the Securities are listed on any stock exchange and of
any delisting thereof.


SECTION 12.16.  Preferential
Collection of Claims.  If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the TIA
regarding the collection of claims against the Company (or any such other
obligor).


ARTICLE XIII


Amendments,
Supplements and Waivers


SECTION 13.1.  Without Consent
of Holders.  The Company and the
Trustee may amend or supplement this Indenture or the Securities without notice
to, or consent of, any Securityholder:


(a)  to cure any ambiguity, defect or
inconsistency, to correct or supplement any provision herein or in any
Subsidiary Guarantee which may be inconsistent with any other provision herein
or in any Subsidiary Guarantee, or to make any other provisions with respect to
matters or questions arising under this Indenture or any Subsidiary Guarantee
which shall not be inconsistent with the provisions of this Indenture, provided that such action pursuant to this Clause (a) shall
not adversely affect the interests of the Holders in any material respect;


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


(c)  to provide for the assumption of the Company’s
obligations to Holders of Securities in the case of a share exchange, merger or
consolidation or sale of all or substantially all of the Company’s assets;



 62
 









(d)  to make any change that would provide any
additional rights or benefits to the Holders of Securities or that does not
adversely affect in any material respect the legal rights under this Indenture
of any Securityholder;


(e)  to add a guarantor;


(f)  to comply with requirements of the SEC in
order to effect or maintain the qualification of this Indenture under the TIA;


(g)  to secure the Securities;


(h)  to comply with the rules of any applicable
securities depositary, including the Depositary;


(i)  to increase the Conversion Rate;


(j)  to execute a supplemental indenture in
accordance with Section 7.11;


(k)  to conform the text of this Indenture or the
Securities to any provision of the “Description of the Notes” contained in the
Offering Circular to the extent that the text of the “Description of the Notes”
or the Securities was intended by the Company and the Initial Purchasers to be
a recitation of the text of this Indenture or the Securities as represented by
the Company to the trustee in an Officers’ Certificate;


(l)  to provide for a successor Trustee in
accordance with the terms of this Indenture or to otherwise comply with any
requirement of this Indenture;


(m)  to provide for the issuance of Additional
Securities, to the extent that the Company and the Trustee deem such amendment
or supplement necessary or advisable in connection with such issuance; provided that no such amendment or supplement shall impair
the rights or interests of any Holder of Initial Securities; or


(n)  to modify the restrictions and procedures for
resale and other transfers of Securities or Common Stock pursuant to law,
regulation or practice relating to the resale or transfer of restricted
securities generally.


SECTION 13.2.  With Consent of
Holders.  The Company and the Trustee
may amend or supplement the Securities, this Indenture or any Subsidiary
Guarantee with the consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding.  Subject to Section 11.4 and Section 11.7,
the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding may waive compliance in any instance by the Company
with any provision of the Securities or this Indenture without notice to any
Securityholder.  However, notwithstanding
the foregoing but subject to Section 13.4, without the consent of
the Holders of each Security then outstanding, an amendment, supplement or
waiver may not:


(a)  change the stated maturity of the principal
of or the payment date of any installment of interest (including Additional
Interest, if any) on or with respect to the Securities;


(b)  reduce the principal amount of, the
Redemption Price or Put Price of, or the Conversion Rate or rate of interest or
Additional Interest on, any Security;



 63
 









(c)  reduce the amount of principal payable upon
acceleration of the maturity of any Security;


(d)  change the currency in which payment of
principal of, the Redemption Price or Put Price of, or interest with respect
to, the Securities is payable;


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


(f)  modify the provisions with respect to the
purchase rights of Holders as provided in Article 5 in a manner adverse to
Holders;


(g)  adversely affect the right of Holders to
convert Securities other than as provided in this Indenture;


(h)  reduce the percentage in principal amount of
the outstanding Securities, the consent of whose Holders is required to take
specific actions including, but not limited to, the waiver of past defaults or
the modification or amendment of this Indenture; or


(i)  alter the manner of calculation or rate of
accrual of interest or Additional Interest, Redemption Price or Put Price or
the Conversion Rate (except as permitted under Section 13.1(i)) on any
Security or extend the time for payment of any such amount.


It shall not be necessary
for the consent of the Holders under this Section 13.2 to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.


After an amendment,
supplement or waiver under Section 13.1 or this Section 13.2
becomes effective, the Company shall 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 13.3.  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 13.4.  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.


After an amendment,
supplement or waiver becomes effective, it shall bind every applicable
Securityholder.


SECTION 13.5.  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 



 64
 









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 13.6.  Trustee to Sign
Amendments, Etc.  The Trustee shall
sign any amendment or supplemental indenture authorized pursuant to this
Article XIII if the amendment or supplemental indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee.  If it does adversely affect the rights,
duties, liabilities or immunities of the Trustee, 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 provided with and, subject to Section 12.1, shall
be fully protected in relying upon, an Officers’ Certificate and an Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent to the
effectiveness of such amendment or supplement have been satisfied or duly
waived.


SECTION 13.7.  Effect of
Supplemental Indentures.  Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.


ARTICLE XIV


[Reserved]


ARTICLE XV


Satisfaction and
Discharge


SECTION 15.1.  Satisfaction
and Discharge of the Indenture.  This
Indenture shall cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), 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


(a)  either


(i)  all
Securities theretofore authenticated and delivered (other than Securities that
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.7) have been delivered to the Trustee for
cancellation; or


(ii)  all such
Securities not theretofore delivered to the Trustee for cancellation have
become due and payable whether at the Final Maturity Date or upon acceleration,
or on any Redemption Date (including under arrangements satisfactory to the
Trustee with respect to the delivery of the notice of redemption), or with
respect to any Put Purchase Date, and the Company deposits with the Paying
Agent or Conversion Agent, as the case may be, Cash, Common Stock or other
consideration, or a combination thereof, as applicable hereunder,



 65
 









sufficient to pay on such
date all amounts due and owing on all outstanding Securities (other than
Securities replaced pursuant to Section 2.7) on such date;


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


(c)  the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 12.6 and, if money shall have been
deposited with the Trustee pursuant to Section 15.1(a)(ii), the
obligations of the Trustee under Section 15.2 shall survive such
satisfaction and discharge.


Notwithstanding anything
herein to the contrary, Article VII, Article XV, and Section 2.4, Section 2.6,
Section 2.7, Section 2.8, Section 2.14, Section 9.1,
Section 9.5, Section 9.6 and Section 12.6
shall survive any discharge of this Indenture until such time as there are no
Securities outstanding.


SECTION 15.2.  Repayment to
the Company.  The Trustee, the Paying
Agent and the Conversion Agent shall return to the Company upon written request
any Cash or securities held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property law.  After return to
the Company, Holders entitled to the Cash or securities must look to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee, the Paying Agent and
the Conversion Agent shall have no further liability to the Securityholders
with respect to such Cash or securities for that period commencing after the
return thereof.


ARTICLE XVI


Miscellaneous


SECTION 16.1.  Trust Indenture
Act Controls.  If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, including, without
limitation, the duties imposed by TIA Section 318(c), the required
provision of the TIA shall control.


SECTION 16.2.  Notices.  Any demand, authorization notice, request,
consent or communication shall be given in writing and delivered in person,
sent by overnight courier 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:


KEMET Corporation

2835 Kemet Way

Simpsonville, SC  29681

Attention:  Chief Financial Officer

Facsimile No.:  (864) 228-4161



 66
 









if to the Trustee, to:


Wilmington Trust Company

1100 North Market Street

Wilmington, DE, 19890

Attention:  Corporate Trust
Administration

Facsimile No.:  (302) 636-4140


Such notices or
communications to the Trustee shall be effective when received.


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


Any notice or communication
mailed to a Securityholder shall be mailed by first-class mail, postage
prepaid, or delivered by hand or by an overnight delivery service to it at its
address shown on the Register and shall be sufficiently given if so mailed or
delivered within the time prescribed. 
Any notice or communication shall also be mailed to any Person described
in TIA Section 313(c), to the extent required by the TIA.


Failure to mail a notice
or communication to a Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. 
Except as set forth about as to the Trustee, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.


SECTION 16.3.  Communications
by Holders with Other Holders. 
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities.  The Company, the Trustee,
the Registrar, the Paying Agent, the Conversion Agent and any other Person
shall have the protection of TIA Section 312(c).


SECTION 16.4.  Certificate and
Opinion as to Conditions Precedent. 
(a)  Upon any request or
application by the Company to the Trustee to take any action under this Indenture,
the Company shall furnish to the Trustee at the request of the Trustee:


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


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


(b)  Each Officers’ Certificate
and Opinion of Counsel with respect to compliance with a condition or covenant
provided for in this Indenture (other than an Officers’ Certificate provided
pursuant to Section 9.3) shall include:


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



 67
 









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


SECTION 16.5.  Record Date for
Vote or Consent of Securityholders. 
The Company 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 13.4, 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 16.6.  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 16.7.  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, the city in which the Corporate Trust Office is located
and, so long as Wilmington Trust Company shall be the Trustee, Wilmington,
Delaware, are not required to be open. 
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 an Interest
Payment Record Date or other record date is a Legal Holiday, the record date
shall not be affected.


SECTION 16.8.  Governing Law;
Jury Trial Waiver.  This Indenture
and the Securities shall be governed by, and construed in accordance with, the
laws of the State of New York.


EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.


SECTION 16.9.  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.



 68
 









SECTION 16.10.  No Recourse
Against Others.  All liability
described in paragraph 16 of the Securities of any director, officer, employee
or shareholder, as such, of the Company is waived and released.


SECTION 16.11.  Successors.  All agreements of the Company in this
Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this
Indenture shall bind its successor.


SECTION 16.12.  Multiple
Counterparts.  The parties may sign
multiple counterparts of this Indenture. 
Each signed counterpart shall be deemed an original, but all of them
together shall represent the same agreement.


SECTION 16.13.  Separability.  In case 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 16.14.  Calculations
in Respect of the Securities.  The
Company or its agents shall make all calculations under this Indenture and the
Securities in good faith.  In the absence
of manifest error, such calculations shall be final and binding on all
Holders.  The Company or its agents shall
provide a copy of such calculations to the Trustee as required hereunder, the
Trustee shall be entitled to rely on the accuracy of any such calculation
without independent verification.


SECTION 16.15.  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]



 69
 









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


	
   

  	
  KEMET CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David E. Gable

  
	
   

  	
   

  	
  Name:
  David E. Gable

  
	
   

  	
   

  	
  Title: Senior
  Vice President and CEO

  



 


	
   

  	
  WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as
  Trustee,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Christopher
  Murphy

  
	
   

  	
   

  	
  Name: Christopher
  Murphy

  
	
   

  	
   

  	
  Title: Financial
  Services Officer

  



 


 



 70















EXHIBIT A


[FORM OF FACE OF SECURITY]


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






(1)             This
legend to be included only if the Security is a Global Security.


[THIS SECURITY (OR
ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 , AS AMENDED (THE “SECURITIES
ACT”), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.](2)






(2)             This
legend to be included only if the Security is a Restricted Security.


[THE HOLDER OF THIS
SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY AND THE
COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (III) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) 



 A-1
 









THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. 
IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE
IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED
UNDER THE SECURITIES ACT.](3)






(3)             This
legend to be included only if the Security is a Restricted Security.



 A-2
 









KEMET
CORPORATION


 


2.25% Convertible Senior Notes due 2026


No.  CUSIP: 

No.  ISIN:


KEMET Corporation, a
Delaware corporation (the “Company,” which term shall include any
successor Person under the Indenture referred to on the attached “Terms of the
Notes”), promises to pay to, or registered assigns, the principal amount of [·]
($[·]) on November 15, 2026, and to pay interest
thereon, in arrears, from and including the most recent Interest Payment Date
to which interest has been paid or duly provided for (or if no interest has
been paid, from, and including November 1, 2006), to, but excluding,
May 15 and November 15 of each year (each, an “Interest Payment
Date”), beginning on May 15, 2007, at a rate of 2.25% per annum until the principal
hereof is paid or made available for payment at November 15, 2026, or upon
acceleration, or until such date on which this security is converted, redeemed
or purchased as provided herein.  The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date shall, as provided in the Indenture (as hereinafter defined), be
paid to the Person in whose name this Security is registered at the close of
business on the regular record date for such interest, which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be,
immediately preceding the relevant Interest Payment Date (each, an “Interest
Payment Record Date”); provided, however, that interest shall
be paid to a Person other than the Person in whose name this Security is
registered at the close of business on the Interest Payment Record Date as
provided herein.


Reference is hereby made
to the further provisions of this Security set forth on the attached “Terms of
the Notes”, which further provisions shall for all purposes have the same
effect as if set forth at this place.


[Signature
page follows]



 A-3
 









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


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KEMET CORPORATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

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

  
	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON TRUST COMPANY, not in its individual
  capacity, but solely as Trustee,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  



 



 A-4
 









[FORM OF THE TERMS OF THE NOTES]


KEMET CORPORATION


2.25% CONVERTIBLE SENIOR NOTES DUE
2026


This Security is one of a
duly authorized issue of 2.25% Convertible Senior Notes due 2026 (the “Securities”)
of the Company issued under an Indenture, dated as of November 1, 2006
(the “Indenture”), between the Company and Wilmington Trust Company, as
trustee (the “Trustee”).  The
terms of the Security include those stated in the Indenture, those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”),
and those set forth in this Security. 
This Security is subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of all such terms.  To the extent permitted by applicable law, if
any provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling.  Capitalized terms used but
not defined herein have the meanings assigned to them in the Indenture unless
otherwise indicated.


1.             Interest.


Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months as set forth on the face of the Security.


If this Security is
redeemed pursuant to paragraph 5 of this Security, or the Holder elects to
require the Company to purchase this Security pursuant to paragraph 6 or 7 of
this Security, on a date that is after an Interest Payment Record Date but on
or before the corresponding Interest Payment Date, interest and Additional Interest,
if any, accrued and unpaid hereon to, but not including, the applicable
Redemption Date or Fundamental Change Purchase Date shall be paid to the same
Holder to whom the Company pays the principal of this Security.  Interest and Additional Interest, if any,
accrued and unpaid hereon at the Final Maturity Date also shall be paid to the
same Holder to whom the Company pays the principal of this Security.


Interest and
Additional Interest, if any, on Securities converted after the close of
business on an Interest Payment Record Date but prior to the corresponding
Interest Payment Date shall be paid, on such Interest Payment Date(4), to the
Holder of the Securities as of the close of business on the Interest Payment
Record Date but, upon conversion, the converting Holder must pay the Company an
amount equal to the interest that shall be payable on such Interest Payment
Date.  No such payment need be made with
respect to Securities converted after an Interest Payment Record Date and prior
to the corresponding Interest Payment Date (1) if the Company has specified a
Redemption Date that is after the close of business on an Interest Payment
Record Date but prior to the corresponding Interest Payment Date, (2) any
overdue interest exists at the time of conversion with respect to the
Securities being converted, but only to the extent of the amount of such
overdue interest, or (3) if the Holder converts after the close of business on
the last Interest Payment Record date prior to the Final Maturity Date.






(4)             With
respect to Additional Securities, Interest will accrue from and including the
most recent date to which interest has been paid if no interest has been paid,
from and including the date such Additional Securities are issued.



 A-5
 









Except as otherwise
stated herein, any reference herein to interest accrued or payable as of any
date shall include Additional Interest, if any, accrued or payable on such date
as provided in the Indenture or the Registration Rights Agreement.


2.             Method
of Payment.


Payment of the principal
of, and interest on, the Securities shall be made at the office of the Paying
Agent 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.  The Holder must surrender this Security to a
Paying Agent to collect payment of principal. 
Payment of interest on Certificated Securities shall be made by check
mailed to the address of the Person entitled thereto as such address appears in
the Register; provided, however,
that Holders with Securities in an aggregate principal amount in excess of $2.0
million shall be paid, at their written election, by wire transfer of
immediately available funds. 
Notwithstanding the foregoing, so long as the Securities are registered
in the name of a Depositary or its nominee, all payments with respect to the
Securities shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.


3.             Paying
Agent, Registrar, Conversion Agent.


Initially, the Trustee
shall act as Paying Agent, Registrar and Conversion Agent.  The Company or any Affiliate of the Company
may act as Paying Agent, Registrar or Conversion Agent, subject to the terms of
the Indenture.


4.             Indenture.


The
Securities are general unsubordinated unsecured obligations of the Company
initially limited to $160,000,000 aggregate principal amount (or $175,000,000
aggregate principal amount, if the Initial Purchasers exercise in full their
option to purchase additional Securities).  
The Company may, without consent of the Securityholders, issue
additional Securities under the Indenture with the same terms as the notes
offered hereby in an unlimited aggregate principal amount.  The Indenture does not limit other debt of
the Company, secured or unsecured.


5.             Redemption
at the Option of the Company.


Upon any redemption
pursuant to Section 3.1 of the Indenture, the Company shall provide
the notice required by Section 3.3 of the Indenture (which notice
may be revoked at any time prior to the time at which the Company or the
Trustee, as the case may be, has given such notice to Securityholders) and
shall pay a Redemption Price in Cash equal to 100% of the principal amount of
the Securities being redeemed, plus any accrued and unpaid interest (including
Additional Interest, if any) to, but excluding, the date fixed for redemption,
payable in Cash.


At any time on and after
November 20, 2011, the Securities may be redeemed at any time or from time
to time at the option of the Company in whole or in part at the Redemption
Price.


A notice of redemption
pursuant to this Section of this Security shall be mailed at least 20 days
but not more than 60 days before a Redemption Date to each Holder of Securities
to be redeemed at the Holder’s address as such address appears in the
Register.  If Cash sufficient to pay the
Redemption Price of all Securities for which notice of redemption is given is
deposited with the Paying Agent by 10:00 a.m., New York City time, on the
Redemption Date, then, on and after such Redemption Date, such Securities shall
cease to be outstanding and interest on such 



 A-6
 









Securities shall
cease to accrue, whether or not such Securities are delivered by their Holders
to the Paying Agent, and the Holders thereof shall have no rights as such other
than the right to receive the Redemption Price upon delivery of such Securities
to the Paying Agent.  Securities in
denominations larger than $1,000 principal amount may be redeemed in part but
only in multiples of $1,000 principal amount.


6.             Purchase
by the Company Upon a Fundamental Change.


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase for
Cash, at the option of any Holder, all or any portion of the Securities held by
such Holder upon a Fundamental Change in multiples of $1,000 at the Fundamental
Change Purchase Price.  To exercise such
right, a Holder shall deliver to the Paying Agent a Fundamental Change Purchase
Notice containing the information set forth in the Indenture, at any time prior
to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Purchase Date, and shall deliver the Securities to the
Paying Agent as set forth in the Indenture.


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


If Cash sufficient to pay
the Fundamental Change Purchase Price of all Securities or portions thereof to
be purchased with respect to a Fundamental Change Purchase Date is deposited
with the Paying Agent by 10:00 a.m., New York City time, on the Fundamental
Change Purchase Date then, on and after such Fundamental Change Purchase Date
such Securities shall cease to be outstanding and interest on such Securities
shall cease to accrue, whether or not such Securities are delivered by their
Holders to the Paying Agent, and the Holders thereof shall have no rights as
such other than the right to receive the Fundamental Change Purchase Price upon
delivery of such Securities to the Paying Agent.


7.             Purchase
by the Company at the Option of the Holder on Specified Dates.


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase for
Cash, at the option of any Holder, all or any portion of the Securities held by
such Holder upon each Purchase Date in multiples of $1,000 at the Put Option
Purchase Price.  To exercise such right,
a Holder shall deliver to the Paying Agent a Put Option Notice containing the
information set forth in the Indenture, at any time prior to 5:00 p.m., New
York City time, on the Business Day immediately preceding the Put Option
Purchase Date, and shall deliver the Securities to the Paying Agent as set
forth in the Indenture.


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


If Cash sufficient to pay
the Put Option Price of all Securities or portions thereof to be purchased with
respect to a Put Option Purchase Date is deposited with the Paying Agent by
10:00 a.m., New York City time, on the Put Option Purchase Date then, on and
after such Put Option Purchase Date such Securities shall cease to be
outstanding and interest on such Securities shall cease to accrue, whether or
not such Securities are delivered by their Holders to the Paying Agent, and the
Holders thereof shall have no rights as such other than the right to receive
the Put Option Purchase Price upon delivery of such Securities to the Paying
Agent.



 A-7
 









8.             Conversion.


Subject to the terms of
the Indenture, after May 15, 2026 and prior to the Final Maturity Date, Holders
may surrender Securities, in whole or in part, for conversion at the Conversion
Price then in effect.  In addition, on or
prior to May 15, 2006, Holders may surrender Securities, in whole or in part,
for conversion at the Conversion Price then in effect if any of the following
conditions is satisfied:


·                  During any
fiscal quarter, if the Closing Sale Price of the Common Stock for at least
twenty (20) Trading Days in the period of 30 consecutive Trading Days ending on
the last Trading Day of the preceding fiscal quarter exceeds 130% of the
Conversion Price per share of Common Stock on such last Trading Day;


·                  If
the Company has called the Securities for redemption;


·                  During
the five Trading Days after any five consecutive Trading Day period in which
the average of the Trading Prices for the Securities for such five consecutive
Trading Day period is less than 98% of the average of the Conversion Values for
the Securities during that period;


·                  If
the Company proposes to make certain significant distributions to the Holders
of the Company’s Common Stock; or


·                  In
connection with a Fundamental Change.


Upon satisfaction of any
of the preceding conditions and subject to the terms and conditions of the
Indenture, a Holder of a Security may convert the Security (or any portion
thereof equal to $1,000 principal amount or any integral multiple of $1,000
principal amount in excess thereof) into Cash in an amount equal to the
Principal Return, as well as Cash or, if the Company shall so elect, a
combination of Cash and shares of Common Stock in respect of any remaining
amount by which the Conversion Value of such Securities exceeds the principal
amount of such Securities pursuant to Section 7.13 of the
Indenture, at any time prior to 5:00 p.m., New York City time, on the Business
Day immediately preceding the Final Maturity Date, at the Conversion Rate then
in effect; provided, however,
that, if such Security is called for redemption pursuant to paragraph 5, such
conversion right shall terminate at the close of business on the Business Day
immediately preceding the Redemption Date, unless there shall be a default in
the payment of the Redemption Price, in which case the conversion right with
respect to such Security shall terminate at 5:00 p.m., New York City time, on
the date such default is cured and such Security is redeemed in accordance
herewith; provided further, that, if a Put Notice
with respect to a Security is delivered in accordance with the Indenture, such
Security shall not be convertible unless such Put Notice is duly withdrawn in
accordance with the Indenture or unless there shall be a default in the payment
of the Put Price, in which case the conversion right with respect to such
Security shall terminate at 5:00 p.m., New York City time, on the date such
default is cured and such Security is purchased in accordance with the
Indenture.


The initial Conversion
Rate is 103.0928 shares of Common Stock per $1,000 principal amount of
Securities, which represents an initial Conversion Price of approximately $9.70
per share of Common Stock.  The
Conversion Rate is subject to adjustment under certain circumstances as
provided in the Indenture, including, with respect to Securities surrendered
for conversion, upon a Fundamental Change that occurs prior to November 20,
2011.  No fractional shares will be
issued upon conversion.



 A-8
 









To convert a Security, a
Holder must (i) if the Security is represented by a Global Security, comply
with the Applicable Procedures, or (ii) if the Security is represented by a
Certificated Security, (a) deliver to the Conversion Agent a duly signed and
completed Conversion Notice set forth below, (b) deliver the Security to the
Conversion Agent, (c) deliver to the Conversion Agent appropriate endorsements
and transfer documents if required by the Conversion Agent and (d) pay any tax
or duty, if required pursuant to the Indenture. 
A Holder may convert a portion of a Security equal to $1,000 or any
integral multiple thereof.


The Company shall furnish
to any Holder, upon request and without charge, copies of the certificate of
incorporation and by-laws of the Company then in effect.  Any such request may be addressed to the
Company or to the Registrar.


9.             Denominations;
Transfer; Exchange.


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


10.           Persons
Deemed Owners.


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


11.           Unclaimed
Money or Securities.


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


12.           Amendment,
Supplement and Waiver.


Subject to certain
exceptions, the Securities or the Indenture 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, subject to certain exceptions, an
existing Default or Event of Default with respect to the Securities and its
consequences or compliance with any provision of the Securities or the
Indenture may be waived with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities then outstanding.  Subject to the terms of the Indenture,
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 change that does not
adversely affect in any material respect the legal rights under the Indenture
of any Holder.


13.           Defaults
and Remedies.


If any Event of Default
other than as a result of certain events of bankruptcy, insolvency or
reorganization of the Company occurs and is continuing, the principal of all
the Securities then outstanding plus accrued and unpaid interest may be
declared due and payable in the manner and 



 A-9
 









with the effect
provided in the Indenture.  If an Event
of Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company, the principal amount of the Securities plus
accrued and unpaid interest shall become due and payable immediately without
any declaration or other act on the part of the Trustee or any Holder, all to
the extent provided in the Indenture.


14.           Trustee
Dealings with the Company.


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


15.           No
Recourse Against Others.


No recourse under or upon
any obligation, covenant or agreement of the Company contained in the
Indenture, or in this Security, or because of any indebtedness evidenced
thereby or hereby, shall be had against any incorporator, as such, or against
any past, present or future employee, stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders and as part of the
consideration for the issuance of the Securities.


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.


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).


18.           Indenture
to Control; Governing Law.


To the extent permitted
by applicable law, if any provision of this Security conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling.  This Security shall be
governed by, and construed in accordance with, the laws of the State of New
York.


19.           Copies
of Indenture.


The Company shall furnish
to any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made to:
KEMET Corporation, 2835 Kemet Way, Simpsonville, SC  29681, Fax no.:  (864) 228-4161, Attention:  Chief Financial Officer.



 A-10
 









20.           Registration
Rights.


The Holders of the Securities are entitled to the
benefits of a Registration Rights Agreement, dated as of November 1, 2006,
between the Company and the Initial Purchasers, including, in certain
circumstances, the receipt of Additional Interest upon a registration default
(as defined in such agreement).(5)






(5)             This
Section to be included only if the Security is a Restricted Security.



 A-11














SCHEDULE OF EXCHANGES OF
SECURITIES(6)


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


 


	
  DATE OF

  DECREASE OR

  INCREASE

  	
   

  	
  AUTHORIZED

  SIGNATORY OF

  SECURITIES

  	
   

  	
  DECREASE IN

  PRINCIPAL

  AMOUNT OF

  THIS GLOBAL

  SECURITY

  	
   

  	
  INCREASE IN

  PRINCIPAL

  AMOUNT OF

  THIS GLOBAL

  SECURITY

  	
   

  	
  PRINCIPAL

  AMOUNT OF

  THIS GLOBAL

  SECURITY

  FOLLOWING

  SUCH DECREASE

  OR INCREASE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  







(6)             This
schedule to be included only if the Security is a Global Security.



 A-12
 








ASSIGNMENT FORM(7)


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 ID no.)

  
	
   

  
	
   

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

  



 


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


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

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

  
	
  Signature Guaranteed

  	
   

  	
   

  
	
  Participant in a Recognized Signature

  	
   

  	
   

  
	
  Guarantee Medallion Program

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  



 


 


 






(7)             This
Form and the following Forms to be included only if the Security is a
Certificated Security.



 A-13
 








FORM OF CONVERSION NOTICE


To convert this Security
into Cash equal to the Principal Return of any Security, as well as Cash or a
combination of Cash and shares of Common Stock, as applicable and as provided
in the Indenture, in respect of any remaining amount by which the Conversion
Value exceeds the principal amount of such Security check the box   ̈


To convert only part of
this Security, state the principal amount to be converted (which must be $1,000
or a 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 ID no.)

  
	
   

  
	
   

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

  



 


The undersigned (the “Applicant”)
hereby makes application for the issuance of record to the name of the
Applicant of shares of Common Stock.


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

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

  
	
  Signature Guaranteed

  	
   

  	
   

  
	
  Participant in a Recognized Signature

  	
   

  	
   

  
	
  Guarantee Medallion Program

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  



 



 A-14
 








FORM OF FUNDAMENTAL CHANGE
PURCHASE NOTICE


Wilmington Trust Company,
as Trustee

1100 North Market Street

Wilmington, DE, 19890


Attn:                    Corporate
Trust Administration


Re:                               KEMET
Corporation (the “Company”)

2.25% Convertible Senior Notes due 2026


This is a Fundamental
Change Purchase Notice as defined in Section 5.1(c) of the Indenture,
dated as of November 1, 2006 (the “Indenture”), between the Company and
Wilmington Trust Company, as Trustee. 
Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.


Certificate No(s). of
Securities:


I intend to deliver the
following aggregate principal amount of Securities for purchase by the Company
pursuant to Article 5 of the Indenture (in multiples of $1,000):


$


I hereby agree that the
Securities shall be purchased on the Fundamental Change Purchase Date pursuant
to the terms and conditions specified in paragraph 6 of the Securities and in
the Indenture.


	
  Signed:

  	
   

  	
   

  



 



 A-15
 








FORM OF OPTION PURCHASE NOTICE


Wilmington Trust Company,
as Trustee

1100 North Market Street

Wilmington, DE, 19890


Attn:                    Corporate
Trust Administration


Re:                               KEMET
Corporation (the “Company”)

2.25% Convertible Senior Notes due 2026


This is a Option Purchase
Notice as defined in Section 5.2(c) of the Indenture, dated as of
November 1, 2006 (the “Indenture”), between the Company and Wilmington
Trust Company, as Trustee.  Terms used
but not defined herein shall have the meanings ascribed to them in the
Indenture.


Certificate No(s).  of Securities:


I intend to deliver the
following aggregate principal amount of Securities for purchase by the Company
pursuant to Article 5 of the Indenture (in multiples of $1,000):


$


I hereby agree that the
Securities shall be purchased on the Option Purchase Date pursuant to the terms
and conditions specified in paragraph 7 of the Securities and in the Indenture.


	
  Signed:

  	
   

  	
   

  



 



 A-16















EXHIBIT B


CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OR

REGISTRATION OF TRANSFER OF RESTRICTED SECURITIES(8)


Re:                               2.25%
Convertible Senior Notes due 2026

(the “Securities”) of KEMET Corporation


This certificate relates
to
$                       principal
amount of Securities owned in (check applicable box):


o  book-entry or                  o  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
November 1, 2006, between KEMET Corporation and Wilmington Trust Company,
as trustee (the “Indenture”), and either 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):


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


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


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


o            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) to whom notice has
been given that the transfer is being made in reliance on such Rule 144A, in
reliance on Rule 144A.


o            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.


o            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).


o            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).


The Transferor
acknowledges and agrees that, if the transferee will hold any such Securities
in the form of beneficial interests in a Global Security that is a “restricted
security”






(8) This
certificate to be included only if the Security is a Restricted Security.



 B-1
 









within the meaning
of Rule 144 under the Securities Act, then such transfer can be made only (x)
pursuant to Rule 144A under the Securities Act to a transferee that the
transferor reasonably believes is a “qualified institutional buyer,” as defined
in Rule 144A, or (y) pursuant to Regulation S under the Securities Act.


	
  Date:

  
	
   

  
	
   

  	
  Signature(s) of
  Transferor

  	
   

  
	
   

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

  
	
   

  
	
  Signature
  Guaranteed

  
	
  Participant in a
  Recognized Signature

  
	
   

  
	
  Guarantee
  Medallion Program

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  
					



 



 B-2
 









 


 


	
  IN WITNESS WHEREOF,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [                                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 



 B-3
 









 


SCHEDULE A


 


The following table sets forth the increase in the Conversion Rate,
expressed as a number of additional shares of Common Stock to be received per
$1,000 principal amount of Securities:


 


	
   

  	
   

  	
  Effective Date

  	
   

  
	
  Stock Price

  	
   

  	
  November 1, 2006

  	
   

  	
  November 15, 2007

  	
   

  	
  November 15, 2008

  	
   

  	
  November 15, 2009

  	
   

  	
  November 15, 2010

  	
   

  	
  November 20, 2011

  	
   

  
	
  $7.46

  	
   

  	
  30.95

  	
   

  	
  30.95

  	
   

  	
  30.95

  	
   

  	
  30.95

  	
   

  	
  30.95

  	
   

  	
  30.95

  	
   

  
	
  $8.00

  	
   

  	
  27.86

  	
   

  	
  27.52

  	
   

  	
  27.03

  	
   

  	
  26.26

  	
   

  	
  24.89

  	
   

  	
  21.90

  	
   

  
	
  $9.00

  	
   

  	
  21.77

  	
   

  	
  21.07

  	
   

  	
  20.16

  	
   

  	
  18.84

  	
   

  	
  16.55

  	
   

  	
  8.02

  	
   

  
	
  $10.00

  	
   

  	
  17.27

  	
   

  	
  16.37

  	
   

  	
  15.23

  	
   

  	
  13.66

  	
   

  	
  11.03

  	
   

  	
  0.00

  	
   

  
	
  $11.00

  	
   

  	
  13.85

  	
   

  	
  12.84

  	
   

  	
  11.61

  	
   

  	
  9.98

  	
   

  	
  7.38

  	
   

  	
  0.00

  	
   

  
	
  $12.00

  	
   

  	
  11.19

  	
   

  	
  10.15

  	
   

  	
  8.90

  	
   

  	
  7.32

  	
   

  	
  4.96

  	
   

  	
  0.00

  	
   

  
	
  $13.00

  	
   

  	
  9.10

  	
   

  	
  8.05

  	
   

  	
  6.84

  	
   

  	
  5.37

  	
   

  	
  3.36

  	
   

  	
  0.00

  	
   

  
	
  $14.00

  	
   

  	
  7.42

  	
   

  	
  6.40

  	
   

  	
  5.24

  	
   

  	
  3.92

  	
   

  	
  2.30

  	
   

  	
  0.00

  	
   

  
	
  $15.00

  	
   

  	
  6.05

  	
   

  	
  5.07

  	
   

  	
  3.99

  	
   

  	
  2.84

  	
   

  	
  1.59

  	
   

  	
  0.00

  	
   

  
	
  $20.00

  	
   

  	
  1.97

  	
   

  	
  1.25

  	
   

  	
  0.60

  	
   

  	
  0.19

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  
	
  $30.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  	
  0.00

  	
   

  



 



 B-4