EX-4.1



 





Exhibit 4.1




MYLAN LABORATORIES INC., as Issuer,




the Guarantors named herein, as Guarantors,




and




THE BANK OF NEW YORK, as Trustee




 






INDENTURE




Dated as of March 7, 2007




 






1.25% Senior Convertible Notes Due 2012





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1

	DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	9	 
	Section 1.03. Trust Indenture Act Provisions
	 	 	11	 
	Section 1.04. Rules Of Construction
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 2

	THE SECURITIES

	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	11	 
	Section 2.02. Execution and Authentication
	 	 	13	 
	Section 2.03. Registrar, Paying Agent and Conversion Agent
	 	 	14	 
	Section 2.04. Paying Agent To Hold Money In Trust
	 	 	15	 
	Section 2.05. Conversion Agent To Hold Money In Trust
	 	 	15	 
	Section 2.06. Lists of Holders of Securities
	 	 	16	 
	Section 2.07. Transfer and Exchange
	 	 	16	 
	Section 2.08. Replacement Securities
	 	 	17	 
	Section 2.09. Outstanding Securities
	 	 	18	 
	Section 2.10. Treasury Securities
	 	 	18	 
	Section 2.11. Temporary Securities
	 	 	18	 
	Section 2.12. Cancellation
	 	 	19	 
	Section 2.13. Legend; Additional Transfer and Exchange Requirements
	 	 	19	 
	Section 2.14. CUSIP Numbers
	 	 	21	 
	Section 2.15. Calculations
	 	 	21	 
	Section 2.16. Payment of Interest; Interest Rights Preserved
	 	 	21	 
	Section 2.17. Computation of Interest
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 3

	PURCHASE

	 
	 	 	 	 
	Section 3.01. Purchase of Securities by the Company for Cash at Option of the Holder Upon a Fundamental Change
	 	 	22	 
	Section 3.02. Effect of Fundamental Change Purchase Notice
	 	 	25	 
	Section 3.03. Deposit of Fundamental Change Purchase Price
	 	 	25	 
	Section 3.04. Repayment to the Company
	 	 	26	 
	Section 3.05. Securities Purchased In Part
	 	 	26	 
	Section 3.06. Compliance With Securities Laws Upon Purchase of Securities
	 	 	26	 
	Section 3.07. Purchase of Securities In Open Market
	 	 	26	 






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	 	 	Page
	 
	ARTICLE 4

	CONVERSION

	 
	 	 	 	 
	Section 4.01. Conversion Privilege and Conversion Rate
	 	 	27	 
	Section 4.02. Conversion Procedure
	 	 	31	 
	Section 4.03. Fractional Shares
	 	 	32	 
	Section 4.04. Taxes on Conversion
	 	 	32	 
	Section 4.05. Company To Provide Common Stock
	 	 	32	 
	Section 4.06. Adjustment of Conversion Rate
	 	 	32	 
	Section 4.07. No Adjustment
	 	 	38	 
	Section 4.08. Notice of Adjustment
	 	 	39	 
	Section 4.09. Notice of Certain Transactions
	 	 	39	 
	Section 4.10. Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege
	 	 	39	 
	Section 4.11. Trustee’s Disclaimer
	 	 	40	 
	Section 4.12. Settlement Upon Conversion
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 5

	COVENANTS

	 
	 	 	 	 
	Section 5.01. Payment of Securities
	 	 	42	 
	Section 5.02. Reports by Company and the Guarantors
	 	 	42	 
	Section 5.03. Compliance Certificates
	 	 	43	 
	Section 5.04. Further Instruments and Acts
	 	 	43	 
	Section 5.05. Maintenance of Corporate Existence
	 	 	43	 
	Section 5.06. Stay, Extension And Usury Laws
	 	 	43	 
	Section 5.07. Maintenance of Office or Agency
	 	 	43	 
	Section 5.08. Guarantees
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 6

	CONSOLIDATION; MERGER; SALE OF ASSETS

	 
	Section 6.01. Company May Consolidate, Etc., Only on Certain Terms
	 	 	44	 
	Section 6.02. Successor Substituted
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 7

	DEFAULT AND REMEDIES

	 
	 	 	 	 
	Section 7.01. Events of Default
	 	 	45	 
	Section 7.02. Acceleration
	 	 	47	 
	Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	48	 
	Section 7.04. Trustee May File Proofs of Claim
	 	 	49	 
	Section 7.05. Trustee May Enforce Claims Without Possession of Securities
	 	 	50	 
	Section 7.06. Application of Money Collected
	 	 	50	 
	Section 7.07. Limitation on Suits
	 	 	50	 
	Section 7.08. Unconditional Right of Holders to Receive Payment and to Convert
	 	 	51	 
	Section 7.09. Restoration of Rights and Remedies
	 	 	51	 
	Section 7.10. Rights and Remedies Cumulative
	 	 	51	 
	Section 7.11. Delay or Omission Not Waiver
	 	 	52	 
	Section 7.12. Control by Holders
	 	 	52	 






ii









 






	 	 	 	 	 
	 	 	Page
	 
	Section 7.13. Waiver of Past Defaults
	 	 	52	 
	Section 7.14. Undertaking for Costs
	 	 	52	 
	Section 7.15. Remedies Subject to Applicable Law
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 8

	TRUSTEE

	 
	 	 	 	 
	Section 8.01. Duties of Trustee
	 	 	53	 
	Section 8.02. Notice of Default
	 	 	54	 
	Section 8.03. Certain Rights of Trustee
	 	 	54	 
	Section 8.04. Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof
	 	 	56	 
	Section 8.05. Trustee and Agents May Hold Securities; Collections; etc.
	 	 	56	 
	Section 8.06. Money Held in Trust
	 	 	56	 
	Section 8.07. Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	56	 
	Section 8.08. Conflicting Interests
	 	 	57	 
	Section 8.09. Trustee Eligibility
	 	 	57	 
	Section 8.10. Resignation and Removal; Appointment of Successor Trustee
	 	 	58	 
	Section 8.11. Acceptance of Appointment by Successor
	 	 	59	 
	Section 8.12. Merger, Conversion, Consolidation or Succession to Business
	 	 	59	 
	Section 8.13. Preferential Collection of Claims Against Company
	 	 	60	 
	Section 8.14. Reports By Trustee
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 9

	SATISFACTION AND DISCHARGE OF INDENTURE

	 
	 	 	 	 
	Section 9.01. Satisfaction and Discharge of Indenture
	 	 	60	 
	Section 9.02. Application of Trust Money
	 	 	61	 
	Section 9.03. Reinstatement
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 10

	AMENDMENTS; SUPPLEMENTS AND WAIVERS

	 
	 	 	 	 
	Section 10.01. Without Consent of Holders
	 	 	62	 
	Section 10.02. With Consent of Holders
	 	 	63	 
	Section 10.03. Execution of Supplemental Indentures and Agreements
	 	 	64	 
	Section 10.04. Effect of Supplemental Indentures
	 	 	64	 
	Section 10.05. Conformity with Trust Indenture Act
	 	 	64	 
	Section 10.06. Reference in Securities to Supplemental Indentures
	 	 	64	 
	Section 10.07. Notice of Supplemental Indentures
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 11

	NOTE GUARANTEES

	 
	 	 	 	 
	Section 11.01. Guarantees
	 	 	65	 
	Section 11.02. Severability
	 	 	66	 
	Section 11.03. Limitation of Liability
	 	 	67	 
	Section 11.04. Contribution
	 	 	67	 






iii









 






	 	 	 	 	 
	 	 	Page
	 
	Section 11.05. Subrogation
	 	 	67	 
	Section 11.06. Reinstatement
	 	 	67	 
	Section 11.07. Release of a Guarantor
	 	 	67	 
	Section 11.08. Benefits Acknowledged
	 	 	68	 
	 
	 	 	 	 
	ARTICLE 12

	MISCELLANEOUS

	 
	 	 	 	 
	Section 12.01. Conflict with Trust Indenture Act
	 	 	68	 
	Section 12.02. Notices
	 	 	68	 
	Section 12.03. Disclosure of Names and Addresses of Holders
	 	 	69	 
	Section 12.04. Compliance Certificates and Opinions
	 	 	69	 
	Section 12.05. Acts of Holders
	 	 	70	 
	Section 12.06. Benefits of Indenture
	 	 	71	 
	Section 12.07. Legal Holidays
	 	 	71	 
	Section 12.08. Governing Law; Waiver of Trial by Jury
	 	 	72	 
	Section 12.09. No Adverse Interpretation of Other Agreements
	 	 	72	 
	Section 12.10. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	72	 
	Section 12.11. Successors and Assigns
	 	 	72	 
	Section 12.12. Multiple Counterparts
	 	 	72	 
	Section 12.13. Separability Clause
	 	 	72	 
	Section 12.14. Schedules and Exhibits
	 	 	72	 
	Section 12.15. Effect of Headings and Table of Contents
	 	 	72	 
	 
	 	 	 	 
	EXHIBIT A Form of Security
	 	 	A-1	 
	EXHIBIT B Notation of Guarantee
	 	 	B-1	 
	EXHIBIT C Form of Supplemental Indenture to be Executed by Future Guarantors
	 	 	C-1	 






iv









 






CROSS-REFERENCE TABLE




	 	 	 	 	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section(s)
	Section	 	310(a)(1)
	 	 	8.09	 
	 	 	 	 	(a)(2)
	 	 	8.09	 
	 	 	 	 	(a)(3)
	 	 	N.A. 	**
	 	 	 	 	(a)(4)
	 	 	N.A.	 
	 	 	 	 	(a)(5)
	 	 	8.09	 
	 	 	 	 	(b)
	 	 	8.08	 
	 	 	 	 	(c)
	 	 	N.A.	 
	Section	 	311(a)
	 	 	8.13	 
	 	 	 	 	(b)
	 	 	8.05	 
	 	 	 	 	(c)
	 	 	N.A.	 
	Section	 	312(a)
	 	 	2.06	 
	 	 	 	 	(b)
	 	 	11.03	 
	 	 	 	 	(c)
	 	 	11.03	 
	Section	 	313(a)
	 	 	8.14 	(a)
	 	 	 	 	(b)(1)
	 	 	N.A.	 
	 	 	 	 	(b)(2)
	 	 	8.14 	(a)
	 	 	 	 	(c)
	 	 	8.14 	(a)
	 	 	 	 	(d)
	 	 	8.14 	(b)
	Section	 	314(a)
	 	 	5.02	 
	 	 	 	 	(b)
	 	 	N.A.	 
	 	 	 	 	(c)(1)
	 	 	11.04	 
	 	 	 	 	(c)(2)
	 	 	11.04	 
	 	 	 	 	(c)(3)
	 	 	N.A.	 
	 	 	 	 	(d)
	 	 	N.A.	 
	 	 	 	 	(e)
	 	 	11.04	 
	 	 	 	 	(f)
	 	 	N.A.	 
	Section	 	315(a)
	 	 	8.01 	(b)
	 	 	 	 	315(b)
	 	 	8.02	 






v









 






	 	 	 	 	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section(s)
	 	 	 	 	315(c)
	 	 	8.01 	(a)
	 	 	 	 	315(d)
	 	 	8.01 	(c)
	 	 	 	 	315(d)(2)
	 	 	8.01 	(c)
	 	 	 	 	315(d)(3)
	 	 	8.01 	(c)
	 	 	 	 	315(e)
	 	 	7.14	 
	Section	 	316(a) (last sentence)
	 	 	2.10	 
	 	 	 	 	316(a)(1)
	 	 	7.12, 7.13	 
	 	 	 	 	316(a)(2)
	 	 	N.A.	 
	 	 	 	 	316(b)
	 	 	7.08	 
	 	 	 	 	316(c)
	 	 	11.05	(e)
	Section	 	317(a)
	 	 	7.03, 7.04	(a)
	 	 	 	 	317(b)
	 	 	2.04	 
	Section	 	318(a)
	 	 	11.01	 
	 	 	 	 	318(c)
	 	 	11.01	 








 




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

	 
	**	 	N.A. means Not Applicable.




vi









 










     THIS INDENTURE, dated as of March 7, 2007, is among Mylan Laboratories Inc., a
corporation duly organized under the laws of the State of Pennsylvania (the “Company”), the
Guarantors (as defined herein) and The Bank of New York, a New York banking corporation, as Trustee
(the “Trustee”).



     In consideration of the purchase of the Securities (as defined herein) by the Holders thereof,
the parties hereto agree as follows for the benefit of one another and for the equal and ratable
benefit of the Holders of the Company’s 1.25% Senior Convertible Notes Due 2012.



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01. Definitions.



     “5.750% Notes” means the 5.750% Senior Notes due 2010 of the Company, issued pursuant to
the indenture dated as of July 21, 2005 among the Company, the guarantors named therein, and The
Bank of New York, as trustee, and any notes, bonds, debentures or similar debt securities that the
Company may issue or that any Subsidiary of the Company may issue if such debt securities are
guaranteed by the Company, in each case, to the extent that any such debt securities are issued
within six months of the date on which the Company shall repay such 5.750% Senior Notes due 2010,
whether at maturity or upon earlier redemption or repurchase or otherwise.



     “6.375% Notes” means the 6.375% Senior Notes due 2015 of the Company, issued pursuant to the
indenture dated as of July 21, 2005 among the Company, the guarantors named therein, and The Bank
of New York, as trustee, and any notes, bonds, debentures or similar debt securities that the
Company may issue or that any Subsidiary of the Company may issue if such debt securities are
guaranteed by the Company, in each case, to the extent that any such debt securities are issued
within six months of the date on which the Company shall repay such 6.375% Senior Notes due 2010,
whether upon redemption, repurchase or otherwise.



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



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



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



     “Attributable Debt” means, in the context of a Sale Leaseback Transaction, the present value,
discounted at the interest rate implicit in the lease involved in such Sale Leaseback Transaction,
of the lessee’s obligation under the lease for rental payments during the remaining term of such
lease, including any period for which such lease has been extended or may, at the option of the
lessor, be extended. For purposes of this definition, any amounts the lessee must pay, whether or
not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts the lessee must pay under the lease
contingent upon the amount of sales,



 









 







maintenance and repairs, insurance, taxes, assessments, water rates or similar charges are not
included in the determination of the lessee’s obligations under the lease.



     “Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy” or any other
law relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors, whether in effect on the date hereof or hereafter.



     “Board of Directors” means the board of directors of the Company or of any Guarantor, as the
case may be, or any duly authorized committee of such board, or any equivalent body in a limited
partnership, limited liability company or other entity serving substantially the same function as a
board of directors of a corporation.



     “Board Resolution” means, with respect to any Person, a duly adopted resolution (or other
similar action) of the Board of Directors of such Person.



     “Business Day” means any day other than a Saturday or a Sunday or any other day on which
banking institutions in The City of New York are authorized or required by law to close.



     “Capital Lease Obligations” means, with respect to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP; and,
for the purposes of this Indenture, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.



     “Capital Stock” of any Person means any and all shares, interests, participations, rights in
or other equivalents (however designated) of such Person’s capital stock, other equity interests
whether now outstanding or issued after the Issue Date, partnership interests (whether general or
limited), limited liability company interests, 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, including any Preferred Stock, and any rights (other than debt securities
convertible into, or exchangeable for, Capital Stock), warrants or options exchangeable for or
convertible into such Capital Stock.



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



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



     “Change of Control” means the occurrence of any of the following events:




     (1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Voting Stock representing 50% or
more of the total voting power of all outstanding Voting Stock of the Company, other than an
acquisition by the Company, any of the Company’s Subsidiaries or any of the Company’s
employee benefit plans; provided that this clause (1) shall not apply to a merger of the
Company with or into a wholly-owned Subsidiary of a company that has a class of common stock
or American Depositary Receipts in respect of common stock traded on a United States
national securities exchange if immediately following the



2









 






transaction or series of transactions the holders of Common Stock immediately before
such transaction are entitled to exercise, directly or indirectly, 50% or more of the voting
power of all shares of Capital Stock entitled to vote generally in the election of directors
of such parent company; or




     (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 its assets to any person other than any such transaction where
immediately after such transaction the person or persons that “beneficially owned” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) immediately prior to such
transaction, directly or indirectly, Voting Stock representing a majority of the total
voting power of all outstanding Voting Stock of the Company, “beneficially own or owns” (as
so determined), directly or indirectly, Voting Stock representing a majority of the total
voting power of the outstanding Voting Stock of the surviving or transferee person; or




     (3) during any consecutive two-year period, the Continuing Directors cease for any
reason to constitute a majority of the Board of Directors; or




     (4) the adoption of a plan of liquidation or dissolution of the Company.



Notwithstanding the foregoing, it will not constitute a Change of Control if 90% of the
consideration for the Company’s Common Stock (excluding cash payments for fractional shares and
cash payments made in respect of dissenters’ appraisal rights) in the transaction or transactions
constituting the Change of Control consists of common stock or American Depositary Receipts and any
associated rights listed on a United States national securities exchange or quoted on a national
automated dealer quotation system, or which will be so traded or quoted when issued or exchanged in
connection with the Change of Control, and as a result of such transaction or transactions the
Securities become convertible solely into such common stock or American Depositary Receipts.



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



     “Common Stock” means the Company’s common stock, par value $0.50 per share, or any successor
common stock thereto.



     “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.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any one of its Chairman of the Board, its Chief Executive Officer, its President,
its Chief Operating Officer, its Chief Financial Officer or a Vice President (regardless of Vice
Presidential



3









 







designation), and by any one of its Treasurer, an Assistant Treasurer, any other Vice
President (regardless of Vice Presidential designation), its Secretary or an Assistant Secretary,
and delivered to the Trustee.



     “Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who was (a) a member of such Board of Directors on the date of this
Indenture or (b) nominated for election or elected to such Board of Directors with the approval of
a majority of the continuing directors who were members of such board at the time of such
nomination or election.



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



     “Conversion Rate” means initially 44.5931 shares of Common Stock for each $1,000 principal
amount of Securities, as adjusted from time to time pursuant to the provisions of this Indenture.



     “Conversion Reference Period” means:




     (1) for Securities that are converted during the period beginning on December 15,
2011 and ending on the third Business Day prior to the Final Maturity Date of the
Securities, the 40 consecutive Trading Days commencing on the 42nd Trading Day preceding the
Final Maturity Date; and




     (2) in all other instances, the 40 consecutive Trading Days beginning on the third
Trading Day following the Conversion Date.



     “Conversion Value” means the average of the Daily Conversion Values for each of the 40
consecutive Trading Days of the Conversion Reference Period.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 101 Barclay Street, 8W, New York, New York 10286, Attention: Corporate Trust Division -
Corporate Finance Unit, or such other address as the Trustee may designate from time to time by
notice to the Company, or the principal corporate trust office of any successor Trustee (or such
other address as such successor Trustee may designate from time to time by notice to the Company).



     “Currency Hedging Agreements” means one or more of the following agreements which shall be
entered into by one or more financial institutions: foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to protect against the fluctuations
in currency values.



     “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.



     “Daily Conversion Value” means, with respect to any Trading Day, for each $1,000 principal
amount of Securities, an amount equal to the product of (i) the applicable Conversion Rate and (ii)
the Volume Weighted Average Price per share of Common Stock on such Trading Day.



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



4









 





(VWAP X CR) – $1,000

VWAP X 40




          where




          VWAP = the Volume Weighted Average Price per share of Common Stock
for such Trading Day




          CR = the applicable Conversion Rate




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



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



     “Fair Market Value” means, with respect to any asset or property, the sale value that would be
obtained in an arm’s-length free market transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value
shall be determined by the Board of Directors of the Company acting in good faith and shall be
evidenced by a resolution of the Board of Directors of the Company.



     “Final Maturity Date” means March 15, 2012.



     “Fundamental Change” means the occurrence of a Change of Control or a Termination of Trading.



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



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



     “GAAP” means generally accepted accounting principles in the United States of America 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 and the Public Company Accounting Oversight Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.



     “Global Security” means a Security in global form that is in substantially the form attached
as Exhibit A and that includes the legend called for in footnote 1 thereof and the related schedule
and which is deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.



     “Guarantee” means the guarantee by any Guarantor of the Company’s obligations under this
Indenture in accordance with the provisions of Article 11 hereof.



     “Guarantor” means any Subsidiary of the Company which is a guarantor of the Securities,
including any Person that is required after the Issue Date on the date of determination to execute
a



5









 







guarantee of the Securities pursuant to this Indenture, and its successors and assigns, in
each case, until the Guarantee of such Person has been released in accordance with the provisions
of this Indenture.



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



     “Indebtedness” means, with respect to any Person on any date of determination, without
duplication:




     (1) the principal of and premium (if any) in respect of indebtedness of such Person for
borrowed money;




     (2) the principal of and premium (if any) in respect of indebtedness of such Person
evidenced by bonds, debentures, notes or other similar instruments;




     (3) all Capital Lease Obligations and all Attributable Debt of such Person;




     (4) all obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title retention
agreement, in each case to the extent the purchase price is due more than six months from
the date the obligation is incurred (but excluding trade accounts payable and other accrued
liabilities arising in the ordinary course);




     (5) all obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;




     (6) guarantees and other contingent obligations in respect of indebtedness referred to
in clauses (1) through (5) above and clause (8) below;




     (7) all obligations of any other Person of the type referred to in clauses (1) through
(6) which are secured by any lien on any property or asset of such Person, the amount of
such obligation being deemed to be the lesser of the Fair Market Value of such property or
asset or the amount of the obligation so secured;




     (8) all obligations under Currency Hedging Agreements and all Interest Rate Agreements
of such Person; and




     (9) all obligations represented by Redeemable Capital Stock of such Person.



     “Indenture” means this instrument as originally executed (including all exhibits and schedules
thereto) and as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, including the
provisions of the TIA that are automatically deemed to be part of this Indenture by operation of
the TIA.



     “Interest Payment Date” means March 15 and September 15 of each year, commencing September 15,
2007.



     “Interest Rate Agreements” means one or more of the following agreements which shall be
entered into by one or more financial institutions: interest rate protection agreements (including,
without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other
types of interest rate hedging agreements from time to time.



6









 





     “Issue Date” means the date of this Indenture.



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



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



     “Officer’s Certificate” means a certificate signed by an Officer of the Company or of any
Guarantor, as the case may be, and delivered to, the Trustee; provided, however, that for purposes
of Section 5.03, “Officer’s Certificate” means a certificate signed by the principal executive
officer, principal financial officer, principal operating officer, principal accounting officer or
treasurer of the Company.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or the Trustee and who shall be reasonably acceptable to the Trustee, and which
opinion shall contain the statements required by Section 12.04.



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



     “Redeemable Capital Stock” means any Capital Stock that, either by its terms or by the terms
of any security into which it is convertible or exchangeable or otherwise, is or upon the happening
of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity
of the principal of the Securities or is redeemable at the option of the Holder thereof at any time
prior to such final Stated Maturity (other than upon a change of control of or sale of assets by
the Company so long as such instrument provides that such redemption will not be required unless
permitted under this Indenture), or is convertible into or exchangeable for debt securities at any
time prior to such final Stated Maturity at the option of the holder thereof.



     “Regular Record Date” means, with respect to each Interest Payment Date, the March 1 or
September 1, as the case may be, immediately preceding such Interest Payment Date.



     “Restricted Subsidiary” has the meaning ascribed to such term in the Indenture, dated as of
July 21, 2005, among the Company, the Guarantors specified therein and The Bank of New York, as
trustee, under which the 5.750% Notes and the 6.375% Notes were issued.



     “Sale Leaseback Transaction” means the leasing by the Company or any Subsidiary of any asset,
whether owned at the Issue Date or acquired after the Issue Date (except for temporary leases for a
term, including any renewal term, of up to three years and except for leases between the Company
and any Subsidiary or between Subsidiaries), which property has been or is to be sold or
transferred by the Company or such Subsidiary to any party with the intention of taking back a
lease of such property.



     “SEC” means the U.S. Securities and Exchange Commission.



7









 





     “Securities” means the up to $600,000,000 aggregate principal amount of 1.25% Senior
Convertible Notes due 2012, or any $1,000 principal amount thereof (each a “Security”), as amended
or supplemented from time to time, that are issued under this Indenture.



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



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



     “Significant Subsidiary” means, with respect to any Person, any Subsidiary (or group of
Subsidiaries as to which a specified condition applies) that would be a “significant subsidiary”
under Rule 1-02(w) of Regulation S-X.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.16.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
Security, the date on which such payment of interest or principal shall become due and payable.



     “Subsidiary” means, with respect to any specified Person: (1) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); or (2) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).



     “Termination of Trading” means any date on which the Company’s Common Stock (or other common
stock into which the Securities are then convertible) is not listed on a United States national
securities exchange or approved for quotation and trading on a national automated dealer quotation
system or established automated over-the-counter trading market in the United States or ceases to
be so traded or quoted in contemplation of a delisting or withdrawal of approval.



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



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



     “Trading Price” of the Securities on any date of determination means, solely for the purposes
of Article 4, the average of the secondary market bid quotations obtained by the Trustee for $5.0
million principal amount of Securities at approximately 3:30 p.m., New York City time, on such
determination



8









 







date from three nationally recognized securities dealers the Company selects, which may
include the Underwriters; provided that if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall be used, and if
only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the
Trustee cannot reasonably obtain at least one bid for $5.0 million principal amount of Securities
from a nationally recognized securities dealer selected by the Company or, in the reasonable
judgment of the Company, the bid quotations are not indicative of the secondary market value of the
Securities, then the Trading Price per $1,000 principal amount of Securities will be deemed to be
less than 98% of the product of the Closing Price of the Company’s Common Stock and the then
applicable Conversion Rate per $1,000 principal amount of Securities.



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



     “Trust Officer” means, with respect to the Trustee, any officer assigned to the Corporate
Trust Division — Corporate Finance Unit (or any successor division or unit) of the Trustee located
at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the
administration of this Indenture and, for the purposes of Section 8.01(c)(2) and the proviso in
Section 8.02, shall also include any other officer of the Trustee to whom any corporate trust
matter is referred because of such officer’s knowledge of and familiarity with the particular
subject.



     “Underwriters” means the underwriters named in the Purchase Agreement, dated March 1, 2007,
among the Company, the Guarantors and the underwriters named therein.



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



     “Volume Weighted Average Price” per share of Common Stock on any Trading Day means such price
as displayed on Bloomberg (or any successor service) page MYL.N <equity> VAP in respect of
the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or, if such price
is not available, the Volume Weighted Average Price means the market value per share of the Common
Stock on such day as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company.



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



     Section 1.02. Other Definitions.



	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	“Act”
	 	 	11.05	 
	“Additional Shares”
	 	 	4.01	 
	“Agent Members”
	 	 	2.01	 
	“Business Combination”
	 	 	4.10	 






9









 






	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	“Cash Percentage”
	 	 	4.12	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	4.02	 
	“DTC”
	 	 	2.01	 
	“Defaulted Interest”
	 	 	2.16	 
	“Depositary”
	 	 	2.01	 
	“Distribution Notice”
	 	 	4.01	 
	“Dividend Threshold Amount”
	 	 	4.06	 
	“Event of Default”
	 	 	7.01	 
	“ex-dividend date”
	 	 	4.01	 
	“Expiration Time”
	 	 	4.06	 
	“Fundamental Change Conversion Notice”
	 	 	4.01	 
	“Fundamental Change Purchase Date”
	 	 	3.01	 
	“Fundamental Change Purchase Notice”
	 	 	3.01	 
	“in connection with”
	 	 	4.01	 
	“Issuer Fundamental Change Notice”
	 	 	3.01	 
	“Legend”
	 	 	2.13	 
	“Make Whole Premium”
	 	 	4.01	 
	“Notice of Default”
	 	 	7.01	 
	“Outstanding”
	 	 	2.09	 
	“Paying Agent”
	 	 	2.03	 
	“Primary Registrar”
	 	 	2.03	 
	“purchases”
	 	 	4.06	 
	“Registrar”
	 	 	2.03	 
	“Remaining Shares”
	 	 	4.12	 
	“Special Interest”
	 	 	7.02	 
	“Special Payment Date”
	 	 	2.16	 
	“Spin-Off”
	 	 	4.06	 
	“Stock Price
	 	 	4.01	 






10









 






     Section 1.03. Trust Indenture Act Provisions.



     Whenever this Indenture refers to a provision of the TIA, that provision is incorporated
by reference in and made a part of this Indenture. The following TIA term used in this Indenture
has the following meaning:



     “obligor” on the indenture securities means the Company or any other obligor on the
Securities.



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



     Section 1.04. Rules Of Construction.



     For all purposes of this Indenture, except as otherwise provided or unless the context
otherwise requires:




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




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




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




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




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




     (6) the terms “include”, “including”, and similar terms should be construed as if
followed by the phrase “without limitation”;




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




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



ARTICLE 2




THE SECURITIES




     Section 2.01. Form and Dating.



     The Securities and the Trustee’s certificate of authentication shall be substantially in
the respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may include such letters, numbers or other marks of identification and
such notations,



11









 







legends, endorsements or changes as the Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Trustee, the Depositary, or as may be
required to comply with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any national securities exchange or automated quotation system on
which the Securities may be listed or quoted, or to conform to usage, or to indicate any special
limitations or restrictions to which any particular Securities are subject. Each Security shall be
dated the date of its authentication.



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



     (b) Global Securities In General. The Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate principal amount of outstanding Securities from time to time endorsed thereon and
that the aggregate principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, purchases or conversions of
such Securities.



     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. None of the Trustee, the
Paying Agent or the Security Registrar shall have any responsibility or obligation to any
beneficial owner in a Global Security, an Agent Member or other Person with respect to the accuracy
of the records of the Depositary or its nominee or of any Agent Member, with respect to any
ownership interest in the Securities or with respect to the delivery to any Agent Member,
beneficial owner or other Person (other than the Depositary) of any notice (including any notice of
redemption) or the payment of any amount, under or with respect to such Securities. All notices
and communications to be given to the Holders and all payments to be made to Holders under the
Securities and this Indenture shall be given or made only to or upon the order of the registered
Holders (which shall be the Depositary or its nominee in the case of the Global Security). The
rights of beneficial owners in the Global Security shall be exercised only through the Depositary
subject to the applicable procedures. The Trustee, the Paying Agent and the Security Registrar
shall be entitled to rely and shall be fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any beneficial owners. The Trustee, the
Paying Agent and the Security Registrar shall be entitled to deal with the Depositary, and any
nominee thereof, that is the registered Holder of any Global Security for all purposes of this
Indenture relating to such Global Security (including the payment of principal, premium, if any,
and interest and additional amounts, if any, and the giving of instructions or directions by or to
the owner or Holder of a beneficial ownership interest in such Global Security) as the sole Holder
of such Global Security and shall have no obligations to the beneficial owners thereof. None



12









 







of the Trustee, the Paying Agent or the Security Registrar shall have any responsibility or liability
for any acts or omissions of the Depositary with respect to such Global Security, for the records
of any such depositary, including records in respect of beneficial ownership interests in respect
of any such Global Security, for any transactions between the Depositary and any Agent Member or
between or among the Depositary, any such Agent Member and/or any Holder or owner of a beneficial
interest in such Global Security, or for any transfers of beneficial interests in any such Global
Security.



     Notwithstanding the foregoing, nothing herein shall (1) prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or (2) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of the rights of a
Holder of any Security.



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



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



     Section 2.02. Execution and Authentication.



     (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited to $600,000,000 aggregate principal amount, except as provided in
Sections 2.07 and 2.08.



     (b) The Securities shall be executed on behalf of the Company by one of its Officers. The
signatures of any of the Officers on the Securities may be manual or facsimile.



13









 





     (c) Securities bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     (d) No Security or Guarantee endorsed thereon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized signatory, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.



     (e) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of $600,000,000 upon receipt of a Company Order. The
Company Order shall specify the amount of Securities to be authenticated, shall provide that all
such Securities will be represented by a Global Security and the date on which each original issue
of Securities is to be authenticated.



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



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



     Section 2.03. Registrar, Paying Agent and Conversion Agent.



     (a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices
or agencies where Securities may be presented or surrendered for payment (each, a “Paying Agent”),
one or more offices or agencies where Securities may be presented for conversion (each, a
“Conversion Agent”) and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company will at all
times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices
and demands to or upon the Company in respect of the Securities and this Indenture may be served in
the Borough of Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”)
shall keep a register of the Securities and of their transfer and exchange. At the option of the
Company, any payment of cash may be made by check mailed to the Holders at their addresses set
forth in the register of Holders.



     (b) The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, provided that the Agent may be an Affiliate of the Trustee. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The Company shall notify the
Trustee of the name and address, and any change in the name or



14









 







address, of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent, or
agent for service of notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Article 9).



     (c) The Company hereby initially designates The Bank of New York as Paying Agent, Registrar,
Securities Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee
as the office or agency of the Company for each of the aforesaid purposes and as the office or
agency where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served.



     Section 2.04. Paying Agent To Hold Money In Trust.



     Unless otherwise specified herein, prior to 10:00 a.m., New York City time, on each due
date of the payment of principal of, or interest on, any Securities, the Company shall deposit a
sum sufficient to pay such principal or interest so becoming due. A Paying Agent shall hold in
trust for the benefit of Holders of Securities or the Trustee all money held by the Paying Agent
for the payment of principal of, or interest on, the Securities, and shall notify the Trustee of
any failure by the Company (or any other
obligor on the Securities) to make any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall, before 10:00 a.m., New York City time, on each due date of
the principal of, or interest on, any Securities, segregate the money and hold it as a separate
trust fund for the benefit of Holders. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee, and the Trustee may at any time during the continuance of any
Default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Security and remaining unclaimed for
two years after such principal or interest has become due and payable shall promptly be paid to the
Company or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general circulation in The City
of New York, notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will promptly be repaid to the Company.



     Section 2.05. Conversion Agent To Hold Money In Trust.



     The Company shall require each Conversion Agent (that is not the Trustee) to agree in
writing that the Conversion Agent will hold in trust for the benefit of Holders or the Trustee all
cash and shares of Common Stock delivered by the Company to the Conversion Agent for the delivery
of amounts due upon conversion, and will notify the Trustee of any default by the Company in making
any such delivery.



15









 





     While any such default continues, the Trustee may require a Conversion Agent to deliver all
cash and shares of Common Stock delivered by the Company to it to the Trustee. Upon payment over to
the Trustee, the Conversion Agent (if other than the Company or a Subsidiary) shall have no further
liability in respect of such amounts. If the Company or a Subsidiary acts as Conversion Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders all cash and
shares of Common Stock held by it as Conversion Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Conversion Agent for the
Securities.



     Section 2.06. Lists of Holders of Securities.



     The Trustee shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Holders of Securities. The Company shall
furnish or cause the Registrar to furnish to the Trustee (a) semiannually, not more than 10 days
after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and (b) at such other times as
the Trustee may request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content to that in subsection (a) hereof as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that if and so long as
the Trustee shall be the Primary Registrar, no such list need be furnished.



     Section 2.07. Transfer and Exchange.



     (a) Subject to compliance with any applicable additional requirements contained in Section
2.13, 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 if its
requirements for such transactions are met; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each substantially in the form included
in Exhibit A, and completed in a manner satisfactory to the Registrar and duly executed by the
Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or exchange at an office or
agency maintained pursuant to Section 2.03, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any
exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply to any exchange pursuant
to Section 2.11, 2.13(a), 4.02(d) or 10.06.



     (b) Neither the Company, any Registrar nor the Trustee shall be required to register the
transfer of or exchange any Securities or portions thereof in respect of which a Fundamental Change
Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).



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



16









 





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



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



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



     Section 2.08. Replacement Securities.



     (a) If (1) any mutilated Security is surrendered to the Trustee, or (2) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company and the Trustee, such security or indemnity, in each case, as
may be required by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a protected purchaser, the Company
shall execute and upon a Company Request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not contemporaneously
outstanding and each Guarantor shall execute a replacement Guarantee.



     (b) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased by the Company pursuant to Article 3, or converted
pursuant to Article 4, the Company in its discretion may, instead of issuing a new Security, pay,
purchase or convert such Security, as the case may be.



     (c) Upon the issuance of any new Securities under this Section 2.08, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of counsel and the
Trustee) in connection therewith.



     (d) Every new Security and Guarantee issued pursuant to this Section 2.08 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company and each Guarantor, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits
of this Indenture equally and proportionately with any and all other Securities duly issued
hereunder.



17









 





     (e) The provisions of this Section 2.08 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 2.09. Outstanding Securities.



     (a) Securities outstanding (“Outstanding”) at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those purchased pursuant to Article 3, those converted
pursuant to Article 4, those delivered to the Trustee for cancellation or surrendered for transfer
or exchange and those described in this Section 2.09 as not Outstanding.



     (b) If a Security is replaced pursuant to Section 2.08, such replaced Security ceases to be
Outstanding unless the Company receives proof satisfactory to it that the replaced Security is held
by a protected purchaser.



     (c) If a Paying Agent holds in respect of the Outstanding Securities on a Fundamental Change
Purchase Date or the Final Maturity Date money sufficient to pay the principal of and accrued
interest on Securities (or portions thereof) payable on that date, then on and after such
Fundamental Change Purchase Date or Final Maturity Date, as the case may be, such Securities
(or portions thereof, as the case may be) shall cease to be Outstanding and interest on them shall
cease to accrue.



     (d) Subject to the restrictions contained in Section 2.10, a Security does not cease to be
Outstanding because the Company or an Affiliate of the Company holds the Security.



     Section 2.10. Treasury Securities.



     In determining whether the Holders of the required principal amount of Securities have
concurred in any request, demand, authorization, notice, direction, waiver or consent, Securities
owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or
of such other obligor shall be disregarded, except that, for purposes of determining whether the
Trustee shall be protected in relying on any such request, demand, authorization, notice,
direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows
are so owned shall be so disregarded.



     Section 2.11. Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and execute,
and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary
Securities. Temporary Securities shall be substantially in the form of definitive Securities but
may have variations that the Company with the consent of the Trustee considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary Securities representing an
equal principal amount of Securities. The temporary Securities will be exchanged for definitive
Securities in accordance with Sections 2.07 and 2.13 hereof. Until so exchanged, temporary
Securities shall have the same rights under this Indenture as the definitive Securities.



18









 





     Section 2.12. 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 any Securities
surrendered to them for transfer, exchange, purchase, payment or conversion. The Trustee and no one
else shall cancel, in accordance with its standard procedures, all Securities surrendered for
transfer, exchange, purchase, payment, conversion or cancellation and shall dispose of the
cancelled Securities in accordance with its customary procedures or deliver the canceled Securities
to the Company upon request. All Securities which are purchased or otherwise acquired by the
Company or any of its Subsidiaries prior to the Final Maturity Date pursuant to Article 3 shall be
delivered to the Trustee for cancellation, and the Company may not hold or resell such Securities
or issue any new Securities to replace any such Securities or any Securities that any Holder has
converted pursuant to Article 4. The Trustee shall maintain a record of all canceled Securities.
The Trustee shall provide the Company a list of all Securities that have been canceled from time to
time as requested by the Company in writing.



     Section 2.13. Legend; Additional Transfer and Exchange Requirements.



     (a) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person. Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in
part, shall be made only in accordance with this Section 2.13.



     (b) The provisions below shall apply only to Global Securities:




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




     (2) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be registered in the name of any
Person other than the Depositary or one or more nominees thereof; provided that a Global
Security may be exchanged for Securities registered in the names of any person designated by
the Depositary in the event that (A) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such Depositary
has ceased to be a “clearing agency” registered under the Exchange Act, and in either case a
successor Depositary is not appointed by the Company within 90 days after receiving such
notice or becoming aware that the Depositary has ceased to be a “clearing agency,” (B) an
Event of Default has occurred and is continuing with respect to the Securities or (C) the
Company executes and delivers to the Trustee and the Primary Registrar an Officer’s
Certificate stating that such Global Security shall be so exchangeable. Any Global Security
exchanged pursuant to the preceding sentence shall be so exchanged as directed by the
Depositary. Any Security issued in exchange for a



19









 





Global Security or any portion thereof
shall be a Global Security; provided, however, that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee thereof shall not
be a Global Security.




     (3) Securities issued in exchange for a Global Security or any portion thereof that are
not issued as a Global Security shall be issued in definitive, fully registered form,
without interest coupons, shall have a principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee or the Registrar. With regard to any Global
Security to be exchanged in part, either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made
on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.




     (4) Subject to clause (6) of this Section 2.13(b), the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




     (5) In the event of the occurrence of any of the events specified in clause (2) of this
Section 2.13(b), the Company will promptly make available to the Trustee a reasonable supply
of Certificated Securities in definitive, fully registered form, without interest coupons.




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




     (7) At such time as all interests in a Global Security have been converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall, upon receipt
thereof, be cancelled by the Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Securities Custodian, subject to



20









 






Section 2.12 of
this Indenture. At any time prior to such cancellation, if any interest in a Global Security
is converted, canceled or exchanged for Securities in certificated form, the principal
amount of such Global Security shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Securities Custodian, be appropriately
reduced, and an endorsement shall be made on such Global Security, by the Trustee or the
Securities Custodian, at the direction of the Trustee, to reflect such reduction.



     Section 2.14. 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 a Fundamental Change Purchase Notice as a convenience to Holders; provided
that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any Fundamental Change Purchase Notice and
that reliance may be placed only on the other identification numbers printed on the Securities, and
any such purchase shall not be affected by any defect in or omission of such numbers. The Company
will notify the Trustee in writing of any change in the “CUSIP,” “ISIN” or other similar numbers.



     Section 2.15. Calculations.



     Except as otherwise specifically stated herein or in the Securities, all calculations to
be made in respect of the Securities shall be the obligation of the Company. All calculations made
by the Company or its agent as contemplated pursuant to the terms hereof and of the Securities
shall be made in good faith and be final and binding on the Holders absent manifest error. The
Company shall provide a schedule of calculations to the Trustee upon the Trustee’s request, and the
Trustee shall be entitled to conclusively rely upon the accuracy of the calculations by the Company
without independent verification. The Trustee shall forward calculations made by the Company to
any Holder of Securities upon request.



     Section 2.16. Payment of Interest; Interest Rights Preserved.



     Interest on any Security which is payable, and is punctually paid or duly provided for,
on the Stated Maturity of such interest shall be paid to the Person in whose name the Security is
registered at the close of business on the Regular Record Date for such interest payment.



     Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on the Stated Maturity of such interest, and interest on such defaulted interest at the then
applicable interest rate borne by the Securities, to the extent lawful (such defaulted interest and
interest thereon herein collectively called “Defaulted Interest”), shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Subsection (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 20 days after such notice) of the proposed payment (the
“Special Payment Date”), and on the date of payment the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such



21









 







deposit prior to the
Special Payment Date, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this subsection provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the Special Payment Date and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company in writing of such Special Record Date. Unless the Company issues a
press release to the same effect, in the name and at the expense of the Company, the Trustee shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its address as it appears in
the Security Register, not less than 10 days prior to such Special Record Date or notify in such
other manner as the Trustee determines, including in accordance with any Applicable Procedures.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special
Payment Date therefor having been so mailed or otherwise conveyed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities are registered on such Special Record Date and
shall no longer be payable pursuant to the following paragraph (b).



     (b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any national securities exchange on which the Securities may
be listed, and upon such notice as may be required by this Indenture not inconsistent with the
requirements of such exchange, if, after written notice given by the Company to the Trustee of the
proposed payment pursuant to this subsection, such payment shall be deemed practicable by the
Trustee.



     Subject to the foregoing provisions of this Section 2.16, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     Section 2.17. Computation of Interest.



     Interest on the Securities shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.



ARTICLE 3




PURCHASE




     Section 3.01. Purchase of Securities by the Company for Cash at Option of the Holder Upon
a Fundamental Change.



     (a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, to require the Company to purchase for cash in
whole or in part (in principal amounts of $1,000 and integral multiples thereof) the Securities of
such Holder at the Fundamental Change Purchase Price on the date specified by the Company that is
not less than 30 days and not more than 45 days after the Fundamental Change Effective Date (the
“Fundamental Change Purchase Date”).



22









 





     (b) Not less than 10 Business Days prior to the date that is anticipated to be the Fundamental
Change Effective Date, the Company shall mail a written notice of the Fundamental Change and of the
resulting purchase right to the Trustee, Paying Agent and to each Holder of record of Securities
(an “Issuer Fundamental Change Notice”). The Issuer Fundamental Change Notice shall include the
form of a Fundamental Change Purchase Notice (defined below) to be completed by the Holder and
shall state:




     (1) the events causing such Fundamental Change;




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




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




     (4) the Fundamental Change Purchase Date;




     (5) the Fundamental Change Purchase Price;




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




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




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




     (9) the procedures that the Holder must follow to exercise rights under Article 4 of
this Indenture and that the Securities as to which a Fundamental Change Purchase Notice has
been given may be converted into Common Stock pursuant to Article 4 of this Indenture only
to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;




     (10) the procedures that the Holder must follow to exercise rights under this Section
3.01;




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




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




     (13) the CUSIP, ISIN or other similar number of the Securities.



     At the Company’s written request, the Trustee shall give such Issuer Fundamental Change
Notice in the Company’s name and at the Company’s expense; provided that, in all cases, the text of
such Issuer Fundamental Change Notice shall be prepared by the Company. In connection with the
delivery of the Issuer Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the Issuer Fundamental Change
Notice in a newspaper of general circulation in the City of New York or publish information on a
website of the



23









 







Company or through such other public medium the Company may use at that time. If any
of the Securities is in the form of a Global Security, then the Company shall modify such notice to
the extent necessary to accord with the Applicable Procedures relating to the purchase of Global
Securities.



     (c) A Holder may exercise its rights specified in Section 3.01(a) upon delivery of a
written notice (which shall be in substantially the form set forth in the form of Security attached
as Exhibit A under the heading “Fundamental Change Purchase Notice” and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any other written form and,
in the case of Global Securities, may be delivered electronically or by other means in accordance
with the Depositary’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change
Purchase Notice”) to the Paying Agent at any time prior to the close of business on the Business
Day immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with
applicable law.




     (1) The Fundamental Change Purchase Notice shall state: (A) if the Securities are in
certificated form, the certificate numbers of the Securities which the Holder will deliver
to be purchased (or, if the Security is held in global form, any other items required to
comply with the Applicable Procedures), (B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion must be a
principal amount of $1,000 or any integral multiple thereof and (C) that such Security
shall be purchased as of the Fundamental Change Purchase Date pursuant to the terms and
conditions specified in the Securities and in this Indenture.




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




     (3) The Company shall only be obliged to purchase, pursuant to this Section 3.01, a
portion of a Security if the principal amount of such portion is $1,000 or an integral
multiple thereof. Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.




     (4) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying
Agent the Fundamental Change Purchase Notice contemplated by this Section 3.01(c) shall have
the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion
thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time
prior to the close of business on the Business Day prior to the Fundamental Change Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with
Section 3.02(b).




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




     (6) Anything herein to the contrary notwithstanding, in the case of Global Securities,
any Fundamental Change Purchase Notice may be delivered or withdrawn and



24









 






such Securities may
be surrendered or delivered for purchase in accordance with the Applicable Procedures as in
effect from time to time.



     Section 3.02. Effect of Fundamental Change Purchase Notice.



     (a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Purchase
Notice from a Holder, the Holder of the Security in respect of which such Fundamental Change
Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as
specified in Section 3.02(b)) thereafter be entitled to receive the Fundamental Change Purchase
Price with respect to such Security. Such Fundamental Change Purchase Price shall be paid to such
Holder promptly following the later of (1) the Fundamental Change Purchase Date (provided that the
conditions in Section 3.01 have been satisfied) and (2) the time of delivery of such Security to a
Paying Agent by the Holder thereof in the manner required by Section 3.01(c). Securities in respect
of which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be
converted in accordance with the provisions of Article 4 on or after the date of the delivery of
such Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first
been validly withdrawn in accordance with Section 3.02(b) with respect to the Securities to be
converted.



     (b) A Fundamental Change Purchase Notice may be withdrawn by means of a written notice (which
may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically or by other
means in accordance with the Applicable Procedures) of withdrawal delivered by the Holder to a
Paying Agent at any time prior to the close of business on the Business Day immediately prior to
the Fundamental Change Purchase Date, specifying (1) the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted, (2) if the
Securities are in certificated form, the certificate numbers of the Security being withdrawn in
whole or in part and (3) the portion of the principal amount of the Security that will remain
subject to the Fundamental Change Purchase Notice, which portion must be a principal amount of
$1,000 or an integral multiple thereof.



     Section 3.03. Deposit of Fundamental Change Purchase Price.



     (a) On or before 10:00 a.m. New York City time on the applicable Fundamental Change Purchase
Date, the Company shall deposit with the Trustee or with a Paying Agent (or if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of money (in immediately available funds if deposited on or
after such Fundamental Change Purchase Date), sufficient to pay the aggregate Fundamental Change
Purchase Price of all the Securities or portions thereof that are to be purchased as of the
Fundamental Change Purchase Date.



     (b) If a Paying Agent or the Trustee holds on the Fundamental Change Purchase Date in
accordance with the terms hereof an amount of money sufficient to pay the Fundamental Change
Purchase Price of any Security (or portion thereof) for which a Fundamental Change Purchase Notice
has been tendered and not withdrawn in accordance with this Indenture then, immediately following
the applicable Fundamental Change Purchase Date, whether or not the



25









 







Security is delivered to the
Paying Agent, such Security shall cease to be outstanding, interest, shall cease to accrue, and the
rights of the Holder in respect of the Security shall terminate (other than the right to receive
the Fundamental Change Purchase Price upon delivery of the Security as aforesaid).



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



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



     Section 3.04. Repayment to the Company.



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



     Section 3.05. Securities Purchased In Part.



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



     Section 3.06. Compliance With Securities Laws Upon Purchase of Securities.



     In connection with any offer to purchase Securities under Section 3.01, the Company shall
(a) comply with the provisions of the tender offer rules under the Exchange Act which may then be
applicable, (b) file the related Schedule TO (or any successor or similar schedule, form or report)
if required under the Exchange Act, and (c) otherwise comply with all federal and state securities
laws in connection with such offer to purchase or purchase of Securities, all so as to permit the
rights of the Holders and obligations of the Company under Sections 3.01 through 3.04 to be
exercised in the time and in the manner specified therein. To the extent that compliance with any
such laws, rules and regulations would result in a conflict with any of the terms hereof, this
Indenture is hereby modified to the extent required for the Company to comply with such laws, rules
and regulations.



     Section 3.07. Purchase of Securities In Open Market.



     The Company may purchase Securities in the open market or by tender at any price or
pursuant to private agreements. The Company shall surrender any Security purchased by the Company
pursuant to this Article 3 to the Trustee for cancellation. Any Securities surrendered to the
Trustee for cancellation may not be reissued or resold by the Company and will be canceled promptly
in accordance with Section 2.12.




26









 







ARTICLE 4




CONVERSION




     Section 4.01. Conversion Privilege and Conversion Rate.



     (a) Any Security or portion thereof that is an integral multiple of $1,000 principal amount
may be converted by the Holder thereof in accordance with the provisions of this Article 4. Upon
conversion, Holders shall be entitled to receive the amount of cash and, if applicable, shares of
Common Stock determined in the manner provided in Section 4.12. Securities may be converted prior
to the close of business on the third Business Day immediately preceding the Final Maturity Date at
the Conversion Rate in effect at the time of such conversion only under the following
circumstances:




     (1) on any Business Day in any calendar quarter commencing at any time after June 30,
2007, and only during such calendar quarter, if, as of the last day of the immediately
preceding calendar quarter, the Closing Price of the Common Stock for at
least 20 Trading Days in the period of 30 consecutive Trading Days ending on the last
Trading Day of such preceding calendar quarter was more than 130% of the applicable
Conversion Price on the last day of such preceding calendar quarter;




     (2) on any Business Day during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount of Securities, as
determined by the Trustee following a request by a Holder in accordance with the procedures
described in Section 4.01(e)(ii), for each Trading Day of that period was less than 98% of
the product of the Closing Price of the Common Stock on such day and the then applicable
Conversion Rate per $1,000 principal amount of Securities.




     (3) if the Company distributes to all holders of Common Stock any rights entitling them
to purchase, for a period expiring within 45 days of such distribution, Common Stock, or
securities convertible into Common Stock, at less than, or having a conversion price per
share less than, the Closing Price of the Common Stock on the Trading Day immediately
preceding the declaration date for such distribution;




     (4) if the Company distributes to all holders of Common Stock assets, cash, debt
securities or rights to purchase the Company’s securities, which distribution has a per
share value as determined by the Board of Directors exceeding 15% of the Closing Price per
share of the Common Stock on the Trading Day immediately preceding the declaration date for
such distribution;




     (5) if the Company is a party to any transaction or event (including, but not limited
to, any consolidation, merger or binding share exchange, other than changes resulting from a
subdivision or combination) that is not otherwise a Fundamental Change pursuant to which all
or substantially all shares of the Common Stock would be converted into cash, securities or
other property (provided that the Securities shall not become



27









 






convertible by reason of a
merger, consolidation or other transaction effected by the Company with one of its direct or
indirect Subsidiaries for the purpose of changing the Company’s state of incorporation or
organization to any other state within the United States or the District of Columbia);




     (6) if a Fundamental Change occurs; or




     (7) at any time during the period beginning on December 15, 2011 and ending at the
close of business on the third Business Day immediately preceding the Final Maturity Date.



     (b) The Trustee shall have no obligation to determine the Trading Price of the Securities and
whether the Securities are convertible pursuant to clause (2) of Section 4.01(a) unless the Company
has requested such determination and the Company shall have no obligation to make such request
unless a Holder of the Securities provides the Company with reasonable evidence that the Trading
Price per $1,000 principal amount of Securities would be less than 98% of the product of the
Closing Price of the Common Stock and the then applicable Conversion Rate per $1,000 principal
amount of Securities. At such time, the Company shall instruct the Trustee to determine the Trading
Price of the Securities beginning on the next
Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal
amount of the Securities is greater than 98% of the product of the Closing Price of the Common
Stock and the then applicable Conversion Rate per $1,000 principal amount of the Securities.



     (c) In the case of a distribution contemplated by clause (3) or (4) of Section 4.01(a), the
Company shall notify Holders and the Trustee at least 35 days prior to the ex-dividend date
(defined below) for such distribution (the “Distribution Notice”). Once the Company has given the
Distribution Notice, Holders may surrender their Securities for conversion at any time until the
earlier of the close of business on the Business Day prior to the ex-dividend date or the Company’s
announcement that such distribution will not take place. In the event of a distribution
contemplated by clause (3) or (4) of Section 4.01(a), Holders may not convert the Securities if the
Holders will otherwise participate in such distribution on an as converted basis (assuming for this
purpose that the Securities were convertible solely into a number of shares of Common Stock equal
to the then applicable Conversion Rate). The “ex-dividend date” is the first date upon which a sale
of the Common Stock does not automatically transfer the right to receive the relevant distribution
from the seller of the Common Stock to its buyer. The Company will provide written notice to the
Conversion Agent as soon as reasonably practicable of any anticipated or actual event or
transaction that will cause or causes the Securities to become convertible pursuant to clauses (3)
or (4) of Section 4.01(a).



     (d) In the case of a transaction contemplated by clause (5) of Section 4.01(a), the Company
will notify Holders and the Trustee as promptly as practicable following the date the Company
publicly announces such transaction (but in no event less than 15 days prior to the anticipated
effective date of such transaction). Holders may surrender Securities for conversion at any time
from and after the date which is 15 days prior to the anticipated effective date of such
transaction until the earlier of the date which is 15 days after the actual effective date of such
transaction or the date of the Company’s announcement that such transaction will not take place.



28









 





     (e) In the case of a Fundamental Change, the Company shall provide notice thereof (a
“Fundamental Change Conversion Notice”) to the Holders of Securities and the Trustee at least 15
days prior to date that is anticipated to be the Fundamental Change Effective Date. Holders may
surrender Securities for conversion at any time beginning 15 days before the date that is
anticipated to be the Fundamental Change Effective Date until the Trading Day prior to the
Fundamental Change Purchase Date.



     (f) The conversion rights pursuant to this Article 4 shall commence on the Issue Date of the
Securities and expire at the close of business on the third Business Day immediately preceding the
Final Maturity Date, but shall be exercisable only during the time periods specified with respect
to each circumstance pursuant to which the Securities become convertible, subject, in the case of
conversion of any Global Security, to any Applicable Procedures.



     (g) Securities in respect of which a Fundamental Change Purchase Notice has been delivered may
not be surrendered for conversion pursuant to this Article 4 prior to a valid withdrawal of such
Fundamental Change Notice, in accordance with the provisions of Article 3.



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



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



     (j) If a Fundamental Change occurs prior to the Final Maturity Date as a result of a
transaction described in clauses (1), (2) or (4) of the definition of the term “Change of Control”
and a Holder elects to convert its Securities “in connection with” such transaction, the Company
shall pay a “Make Whole Premium” by increasing the applicable Conversion Rate for the Securities
surrendered for conversion by a number of additional shares of Common Stock as provided in this
Section 4.01(i) (the “Additional Shares”). A conversion of Securities shall be deemed for these
purposes to be “in connection with” such a transaction if the notice of conversion is received by
the Conversion Agent from and including the Fundamental Change Effective Date and prior to the
close of business on the Business Day prior to the Fundamental Change Purchase Date.



     The number of Additional Shares per $1,000 principal amount of Securities constituting
the Make Whole Premium shall be determined by reference to the table below and shall be based on
the date on which the Fundamental Change Effective Date occurs and the price (the “Stock Price”)
paid, or deemed to be paid, per share of Common Stock in such transaction. If holders of Common
Stock receive only cash in the Fundamental Change transaction, the Stock Price shall be the cash
amount paid per share of Common Stock. Otherwise, the Stock Price shall be the average of the
Closing Prices of the Common Stock for each of the ten consecutive Trading Days prior to but
excluding the Fundamental Change Effective Date.



     The following table sets forth the Additional Share amounts, if any, by which the applicable
Conversion Rate shall be increased for each Stock Price and Fundamental Change Effective Date.



Make Whole Premium (Increase in Applicable Conversion Rate)




29









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Stock Price on	 	 	 	 	 	 	 	 	 	 	 	 
	Fundamental Change	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	3/1/07	 	3/15/08	 	3/15/09	 	3/15/10	 	3/15/11	 	3/15/12
	$19.50
	 	 	6.6890	 	 	 	6.6890	 	 	 	6.6890	 	 	 	6.6890	 	 	 	6.6890	 	 	 	6.6890	 
	$22.50
	 	 	4.2293	 	 	 	4.1872	 	 	 	4.0387	 	 	 	3.7054	 	 	 	2.9796	 	 	 	0.0000	 
	$25.00
	 	 	2.9554	 	 	 	2.8258	 	 	 	2.5899	 	 	 	2.1854	 	 	 	1.4427	 	 	 	0.0000	 
	$27.50
	 	 	2.1121	 	 	 	1.9474	 	 	 	1.6900	 	 	 	1.2984	 	 	 	0.6829	 	 	 	0.0000	 
	$30.00
	 	 	1.5441	 	 	 	1.3704	 	 	 	1.1234	 	 	 	0.7838	 	 	 	0.3253	 	 	 	0.0000	 
	$35.00
	 	 	0.8835	 	 	 	0.7282	 	 	 	0.5360	 	 	 	0.3113	 	 	 	0.0920	 	 	 	0.0000	 
	$40.00
	 	 	0.5491	 	 	 	0.4275	 	 	 	0.2855	 	 	 	0.1489	 	 	 	0.0494	 	 	 	0.0000	 
	$45.00
	 	 	0.3689	 	 	 	0.2762	 	 	 	0.1812	 	 	 	0.0965	 	 	 	0.0384	 	 	 	0.0000	 
	$50.00
	 	 	0.2789	 	 	 	0.2080	 	 	 	0.1346	 	 	 	0.0737	 	 	 	0.0336	 	 	 	0.0000	 
	$75.00
	 	 	0.1354	 	 	 	0.1015	 	 	 	0.0681	 	 	 	0.0414	 	 	 	0.0223	 	 	 	0.0000	 
	$100.00
	 	 	0.0958	 	 	 	0.0724	 	 	 	0.0484	 	 	 	0.0292	 	 	 	0.0166	 	 	 	0.0000	 






     If the actual Stock Price or Fundamental Change Effective Date is not set forth in the
table above, then:




     (i) if the actual Stock Price on the Fundamental Change Effective Date is between two
Stock Price amounts in the table or the actual Fundamental Change Effective Date is between
two Fundamental Change Effective Dates in the table, the Additional Share amounts will be
determined by a straight-line interpolation between the Additional Share amounts set forth
for the
higher and lower Stock Prices and the two Fundamental Change Effective Dates on the
table based on a 365-day year;




     (ii) if the actual Stock Price on the Fundamental Change Effective Date exceeds $100.00
per share of Common Stock, subject to adjustment as set forth herein, no adjustment to the
Conversion Rate shall be made; and




     (iii) if the actual Stock Price on the Fundamental Change Effective Date is less than
$19.50 per share of Common Stock, subject to adjustment as set forth herein, no adjustment
to the Conversion Rate shall be made.



     The Stock Prices set forth in the first column of the table above will be adjusted as of any
date on which the Conversion Rate of the Securities is adjusted pursuant to Section 4.06 hereof.
The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is
the Conversion Rate as so adjusted. The number of Additional Share amounts set forth in the table
above will be adjusted in the same manner as the Conversion Rate as set forth in Section 4.06
hereof.



     Notwithstanding the foregoing, in no event shall the Conversion Rate exceed 51.2821 shares per
$1,000 principal amount of Securities, subject to adjustment in the same manner as the Conversion
Rate as set forth in subsections (a) through (e) of Section 4.06 hereof.



30









 





     Section 4.02. Conversion Procedure.



     (a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security (which shall be substantially in the form set forth in the form of
Security attached as Exhibit A under the heading “Conversion Notice”) and deliver such notice to
the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, (4) pay an amount equal to
the interest payable on the next Interest Payment Date if and as required by Section 4.02(c) and
(5) pay all transfer or similar taxes, if required pursuant to Section 4.04. The date on which the
Holder of a Security satisfies all of the foregoing requirements is the “Conversion Date” with
respect to such Security. Upon the conversion of a Security, the Company shall deliver the amounts
determined in accordance with Section 4.12 which shall be owing upon such conversion as promptly as
practicable after the applicable Conversion Reference Period but in any event not later than the
third Business Day following the last Trading Day of such Conversion Reference Period. Anything
herein to the contrary notwithstanding, in the case of Global Securities, Securities may be
surrendered in accordance with the Applicable Procedures of the Depositary as in effect from time
to time.



     (b) A Holder shall not be entitled to any rights of a holder of Common Stock until such Holder
has converted its Securities and received upon conversion thereof shares of Common Stock. The
person in whose name any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion, if any, shall become on the date any such certificate or certificates are
delivered to such Holder in accordance with the provisions of this Article 4, the holder of record
of the shares represented thereby. Except as set forth in this Indenture, no payment or adjustment
will be made for dividends or distributions declared or
made on shares of Common Stock issued upon conversion of a Security prior to the issuance of
such shares of Common Stock.



     (c) Holders of Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date will receive the semiannual interest payable on such Securities on
the corresponding Interest Payment Date notwithstanding the conversion, and such interest shall be
payable on the corresponding Interest Payment Date to the Holder of the Security as of the close of
business on the Regular Record Date. Upon surrender of any such Securities for conversion after the
close of business on such Regular Record Date, such Securities shall also be accompanied by payment
by the Holders of such Securities in funds to the Conversion Agent acceptable to the Company of an
amount equal to the interest payable on such corresponding Interest Payment Date; provided that no
such payment need be made: (1) in connection with a conversion following the Regular Record Date
preceding the Final Maturity Date; (2) if the Company has specified a Fundamental Change Purchase
Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment
Date; or (3) to the extent of any overdue interest, if any overdue interest exists at the time of
conversion with respect to such Security. Except as otherwise provided in this Section 4.02(c), no
payment or adjustment will be made for accrued and unpaid interest on a converted Security. Accrued
and unpaid interest shall be deemed paid in full, rather than cancelled, extinguished or forfeited.
The Company shall not be required to convert any Securities which are surrendered for conversion
without payment of interest as required by this Section 4.02(c).



31









 





     (d) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an aggregate principal
amount equal to, and in exchange for, the unconverted portion of the principal amount of such
Security.



     Section 4.03. Fractional Shares.



     The Company will not issue fractional shares of Common Stock upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares that shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions thereof to the
extent permitted hereby) so surrendered. In lieu of any fractional shares, the Company shall pay an
amount in cash equal to the applicable fraction of a share multiplied by the arithmetic average of
the Volume Weighted Average Price of the Common Stock for the 40 consecutive Trading Days of the
Conversion Reference Period, rounding to the nearest whole cent.



     Section 4.04. Taxes on Conversion.



     The issue of stock certificates, if any, on conversion of Securities shall be made
without charge to the converting Holder for any documentary, stamp or similar issue or transfer tax
in respect of the issue thereof. The Company shall not, however, be required to pay any such tax
which may be payable in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the Holder of any Security converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until the Person or Persons requesting
the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.



     Section 4.05. Company To Provide Common Stock.



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



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



     (c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any,
and will list or cause to have listed such shares of Common Stock on the New York Stock Exchange,
or each national securities exchange or over the counter market or such other market on which the
Common Stock is then listed or quoted.



     Section 4.06. Adjustment of Conversion Rate.



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




32









 





     (a) If the Company issues Common Stock as a dividend or distribution on Common Stock to
all holders of Common Stock, or if the Company effects a share split or share combination, the
Conversion Rate will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x OS1/OS0
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate in effect
taking such event into
account
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately
prior to such event
	 
	 	 	 	 
	 

	 	OS1 =
	 	the number of shares of Common Stock outstanding immediately
after such event.





Any adjustment made pursuant to this Section 4.06(a) shall become effective on the date that
is immediately after (x) the date fixed for the determination of stockholders entitled to receive
such dividend or other distribution or (y) the date on which such split or combination becomes
effective, as applicable. If any dividend or distribution described in this clause Section 4.06(a)
is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.




     (b) If the Company issues to all holders of Common Stock any rights, warrants, options or
other securities entitling them for a period of not more than 45 days after the date of issuance
thereof to subscribe for or purchase Common Stock, or if the Company issues to all holders of
Common Stock securities convertible into Common Stock for a period of not more than 45 days after
the date of issuance thereof, in either case at an exercise price per share of Common Stock or a
conversion price per share of Common Stock less than the Closing Price of the Common Stock on the
Business Day immediately preceding the time of announcement of such issuance, the Conversion Rate
will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (OS0+X)/(OS0+Y)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate taking such event into account
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately
prior to such event
	 
	 	 	 	 
	 

	 	X =
	 	the total number of shares of Common Stock issuable pursuant
to such rights, warrants, options, other securities or convertible securities






33









 






	 	 	 	 	 
	 

	 	Y =
	 	the number of shares of Common Stock equal to the quotient of
(A) the aggregate price payable to exercise such rights, warrants, options,
other securities or convertible securities and (B) the average of the Closing
Prices of the Common Stock for the 10 consecutive Trading Days prior to the
Business Day immediately preceding the date of announcement for the issuance of
such rights, warrants, options, other securities or convertible securities.





For purposes of this Section 4.06(b), in determining whether any rights, warrants, options,
other securities or convertible securities entitle the holders to subscribe for or purchase, or
exercise a conversion right for, Common Stock at less than the applicable Closing Price of the
Common Stock, and in determining the aggregate exercise or conversion price payable for such Common
Stock, there shall be taken into account any consideration received by the Company for such rights,
warrants, options, other securities or convertible securities and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to be determined by
the Board of Directors of the Company. Any adjustment made pursuant to this Section 4.06(b) shall
become effective on the date that is immediately after the date fixed for the determination of
shareholders entitled to receive such rights, warrants, options, other securities or convertible
securities. If any right, warrant, option, other security or convertible security described in this
Section 4.06(b) is not exercised or converted prior to the expiration of the exercisability or
convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect if such right, warrant, option, other security or convertible security had
not been so issued.




     (c) If the Company distributes capital stock, evidences of indebtedness or other assets
or property of the Company to all holders of Common Stock, excluding:




     (1) dividends, distributions, rights, warrants, options, other securities or
convertible securities referred to in Section 4.06(a) or (b) above,




     (2) dividends or distributions paid exclusively in cash, and




     (3) Spin-Offs described below in this Section 4.06(c),


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




	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x SP0/(SP0-FMV)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate taking such event into account
	 
	 	 	 	 
	 

	 	SP0 =
	 	the Closing Price of the Common Stock on the Trading Day
immediately preceding the ex-dividend date for such distribution
	 
	 	 	 	 
	 

	 	FMV=
	 	the fair market value (as determined in good faith by the Board
of Directors of the Company) of the capital stock, evidences of indebtedness,






34









 






	 	 	 	 	 
	 

	 	 	 	assets or property distributed with respect to each outstanding share of Common
Stock on the earlier of the record date or the ex-dividend date for such
distribution.





An adjustment to the Conversion Rate made pursuant to this paragraph shall be made successively
whenever any such distribution is made and shall become effective on the ex-dividend date for such
distribution.




     If the Company distributes to all holders of Common Stock capital stock of any class or
series, or similar equity interest, of or relating to a subsidiary or other business unit of the
Company (a “Spin-Off”), the Conversion Rate in effect immediately before the close of business on
the date fixed for determination of holders of Common Stock entitled to receive such distribution
will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (FMV0+MP0)/MP0
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate taking such event into account
	 
	 	 	 	 
	 

	 	FMV0 =
	 	the average of the Closing Prices of the capital stock or
similar equity interest distributed to holders of Common Stock applicable to
one share of Common Stock over the first 10 consecutive Trading Days after the
effective date of the Spin-Off
	 
	 	 	 	 
	 

	 	MP0 =
	 	the average of the Closing Prices of the Common Stock over
the first 10 consecutive Trading Days after the effective date of the Spin-Off.





An adjustment to the Conversion Rate made pursuant to this paragraph will occur on the 10th Trading
Day from and including the effective date of the Spin-Off.




     If any such dividend or distribution described in this Section 4.06(c) is declared but
not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



     (d) If the Company pays or makes any dividend or distribution consisting exclusively of
cash to all holders of Common Stock, the Conversion Rate will be adjusted based on the following
formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (SP0-T)/(SP0-C)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event






35









 






	 	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate taking such event into account
	 
	 	 	 	 
	 

	 	SP0 =
	 	the average of the Closing Prices of the Common Stock over
the 10 consecutive Trading-Day period ending on the Trading Day immediately
preceding the ex-dividend date for such distribution
	 
	 	 	 	 
	 

	 	T =
	 	the Dividend Threshold Amount, which shall initially be $0.06
per quarter, adjusted to take into account events that cause adjustments to the
Conversion Rate and as further adjusted to account for any change in the
frequency of payment of regular dividends by the Company; provided that the
Dividend Threshold Amount shall be deemed to be zero if the dividend is not a
regularly scheduled dividend
	 
	 	 	 	 
	 

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





An adjustment to the Conversion Rate made pursuant to this Section 4.06(d) shall become effective
on the ex-dividend date for such dividend or distribution. If any dividend or distribution
described in this Section 4.06(d) is declared but not so paid or made, the new Conversion Rate
shall be readjusted to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.




     If the Company fails to pay a cash dividend or distribution for a period in which a
regularly scheduled dividend has in prior periods been paid in accordance with past practice, the
Conversion Rate shall be adjusted using the formula in this Section 4(d), with the ex-dividend date
being deemed to be the second to last trading day in the second month of the calendar quarter in
question, and “C” being deemed to be zero.



     Whenever the Conversion Rate is adjusted, the Dividend Threshold Amount shall be adjusted by
multiplying such Dividend Threshold Amount by a fraction, the numerator of which is the Conversion
Rate prior to adjustment and the denominator of which is the Conversion Rate following such
adjustment, except that no such adjustment will be made to the Dividend Threshold Amount on account
of any adjustment to the Conversion Rate pursuant to this Section 4(d).



     (e) If the Company or any of its subsidiaries makes a payment in respect of a tender
offer or exchange offer for Common Stock to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the Closing Price of the
Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be
made pursuant to such tender or exchange offer (the “Expiration Time”), the Conversion Rate will be
adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (AC + (SP1 x OS1))/(SP1 x OS0)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Conversion Rate in effect immediately prior to the
adjustment relating to such event
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Conversion Rate taking such event into account






36









 






	 	 	 	 	 
	 

	 	AC =
	 	the aggregate value of all cash and any other consideration
(as determined by the Board of Directors of the Company) paid or payable for
Common Stock purchased in such tender or exchange offer
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately
prior to the date such tender or exchange offer expires
	 
	 	 	 	 
	 

	 	OS1 =
	 	the number of shares of Common Stock outstanding immediately
after such tender or exchange offer expires (after giving effect to the
purchase or exchange of shares pursuant to such tender or exchange offer)
	 
	 	 	 	 
	 

	 	SP1 =
	 	the average of the Closing Prices of Common Stock for the 10
consecutive Trading Days commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.





If the application of the foregoing formula would result in a decrease in the Conversion Rate, no
adjustment to the Conversion Rate will be made.




     Any adjustment to the Conversion Rate made pursuant to this Section 4.06(e) shall become
effective on the date immediately following the determination of the average of the Closing Prices
of Common Stock for purposes of SP1 above. If the Company or one of its subsidiaries is obligated
to purchase Common Stock pursuant to any such tender or exchange offer but is permanently
prevented by applicable law from effecting any such purchase or all such purchases are rescinded,
the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if
such tender or exchange offer had not been made.



     (f) Notwithstanding the provisions of this Section 4.06, the Conversion Rate shall not
exceed 51.2821 shares per $1,000 principal amount of Securities, subject to adjustment in the
manner that the Conversion Rate is subject to adjustment as set forth in subsections (a) through
(e) of this Section 4.06.



     (g) In addition to the adjustments pursuant to clauses (a) through (e) above, the Company may
increase the Conversion Rate in order to avoid or diminish any United States federal income tax to
holders of Common Stock resulting from any dividend or distribution of capital shares (or rights to
acquire Common Stock) or from any event treated as such for United States federal income tax
purposes. The Company may also, from time to time, to the extent permitted by applicable law,
increase the Conversion Rate by any amount for any period if the Company has determined that such
increase would be in the best interests of the Company. If the Company makes such determination,
it will be conclusive and the Company will mail to Holders of the Securities a notice of the
increased Conversion Rate and the period during which it will be in effect at least fifteen (15)
days prior to the date the increased Conversion Rate takes effect in accordance with applicable
law.



     (h) If the Company has in effect a rights plan while any Securities remain outstanding,
Holders will receive, upon a conversion of Securities in respect of which the Company is required
to deliver shares of Common Stock, in addition to such shares of Common Stock, rights under the
Company’s stockholder rights agreement unless, prior to conversion, the rights have expired,
terminated or been redeemed or unless the rights have separated from the



37









 







Common Stock. If the
rights provided for in the rights plan adopted by the Company have separated from the Common Stock
in accordance with the provisions of the applicable stockholder rights agreement so that Holders
would not be entitled to receive any rights in respect of Common Stock, if any, that the Company is
required to deliver upon conversion of Securities, the Conversion Rate will be adjusted at the time
of separation as if the Company had distributed to all holders of Common Stock, capital stock,
evidences of indebtedness or other assets or property pursuant to Section 4.06(c) above, subject to
readjustment upon the subsequent expiration, termination or redemption of the rights.



     (i) For purposes of this Section 4.06, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.



     Section 4.07. No Adjustment.



     (a) The Company shall not be required to make any adjustment to the Conversion Rate in
accordance with the provisions of Section 4.06 if Holders of the Securities are permitted to
participate, on an as-converted basis, in the transactions described in Section 4.06 (assuming for
this purpose that each $1,000 principal amount of Securities were convertible solely into a number
of shares of Common Stock equal to the Conversion Rate).



     (b) No adjustment in the Conversion Rate shall be required to be made unless the adjustment
would require an increase or decrease of at least 1% of the Conversion Price. If the adjustment is
not made because the adjustment does not change the Conversion Price by at least 1%, then the
adjustment that is not made will be carried forward and taken into account in any future
adjustment. All required calculations will be made to the nearest cent or 1/1,000th of a share, as
the case may be. Notwithstanding the foregoing, all adjustments not previously made shall have
effect with respect to any conversion of Securities.



     (c) Notwithstanding anything to the contrary contained herein, in addition to the other events
set forth herein on account of which no adjustment to the Conversion Rate shall be made, the
applicable Conversion Rate shall not be adjusted for: (i) the issuance of any Common Stock pursuant
to any present or future plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional amounts in Common Stock under
any plan; (ii) the issuance of any shares of Common Stock or options or rights to purchase those
shares pursuant to any present or future employee, director or consultant benefit plan, employee
agreement or arrangement or program of the Company; (iii) 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; (iv) a change in the par value of the
Common Stock; (v) accumulated and unpaid dividends or distributions; and (vi) as a result of a
tender offer solely to holders of fewer than 100 shares of Common Stock.



     (d) Notwithstanding anything in this Section 4.07 to the contrary, in no event shall the
Conversion Rate be adjusted so that the Conversion Price would be less than $0.01.



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     Section 4.08. Notice of Adjustment.



     Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee, an Officer’s Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to Holders within 20 Business Days of the effective date of such
adjustment. Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.



     Section 4.09. Notice of Certain Transactions.



     In the event that the Company takes any action which would require an adjustment to the
Conversion Rate, the Company takes any action that requires the execution of a supplemental
indenture in accordance with the provisions of Section 4.10 or if there is a dissolution or
liquidation of the Company, the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. The Company shall mail such
notice at least 20 days before such proposed effective date. Failure to mail such notice or any
defect therein shall not affect the validity of any transaction referred to in this Section 4.09.



   Section 4.10.
Effect of Reclassification, Consolidation, Merger or Sale on Conversion Privilege.



     (a) If any of following events occur (each, a “Business Combination”), namely:




     (1) any recapitalization, reclassification or change of the Common Stock, other than
(A) a change in par value, or from par value to no par value, or from no par value to par
value, or (B) as a result of subdivision or a combination,




     (2) a consolidation, merger or combination of the Company with another Person,




     (3) a sale, lease or other transfer to another Person of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, or




     (4) any statutory share exchange of the Company with another Person,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that from and after the effective date of such Business
Combination, upon conversion of Securities, the settlement of the Conversion Value in accordance
with the provisions of Section 4.12 shall be based on, and each Remaining Share, if any,
deliverable in respect of any such settlement shall consist of, the kind and amount of shares of
stock, other securities or other property or assets (including


39









 






cash or any combination thereof)
which holders of Common Stock are entitled to receive in respect of each share of Common Stock upon
such Business Combination. For purposes of the foregoing, where a Business Combination involves a
transaction that causes the Common Stock to be converted into the right to receive more than a
single type of consideration based upon any form of stockholder election, such consideration will
be deemed to be the weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election. If, in the case of any such
Business Combination, the stock or other securities and assets receivable thereupon by a holder of
shares of Common Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as the case may be, in such Business
Combination, then such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including
to the extent practicable the provisions providing for the repurchase rights set forth in Article 3
hereof. The Company shall not become a party to any Business Combination unless its terms are
materially consistent with the provisions of this Section 4.10. The above provisions of this
Section 4.10 shall similarly apply to successive Business Combinations. None of the provisions of
this Section 4.10 shall affect the right of a Holder of Securities to convert its Securities in
accordance with the provisions of this Article 4 prior to the effective date of a Business
Combination.




     If this Section 4.10(a) applies to any event or occurrence, Section 4.06 hereof shall not
apply.



     (b) In the event the Company shall execute a supplemental indenture pursuant to this
Section 4.10, the Company shall promptly file with the Trustee (1) an Officer’s Certificate briefly
stating the reasons therefore and that all conditions precedent have been complied with
and (2) an Opinion of Counsel to the effect that all conditions precedent thereto and
hereunder have been complied with, and shall promptly mail notice of the execution of such
supplemental indenture to all Holders. Failure to mail such notice or any defect therein shall not
affect the validity of such transaction and such supplemental indenture.



     Section 4.11. Trustee’s Disclaimer.



     (a) The Trustee shall have no duty to calculate the Conversion Price or to make any
computation or determination in connection therewith or to determine when an adjustment under this
Article 4 should be made, how it should be made or what such adjustment should be, but may accept
as conclusive evidence of the same or the correctness of any such adjustment, and shall be
protected in relying upon, an Officer’s Certificate and Opinion of Counsel, including the Officer’s
Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 4.08. The Trustee makes no representation as to the validity or value of any securities
or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the
Company’s failure to comply with any provisions of this Article 4, including, without limitation,
whether or not a Supplemental Indenture is required to be executed.



     (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.10, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officer’s Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.10.



40









 





     (c) Neither the Trustee nor any Conversion Agent or any other Agent shall be responsible for
determining whether any event contemplated by this Article 4 has occurred which makes the
Securities eligible for conversion until the Company has delivered to the Trustee and any
Conversion Agent and each other Agent an Officer’s Certificate stating that such event
has occurred, on which Officer’s Certificate the Trustee and any such Conversion Agent and other
Agent may conclusively rely, and the Company agrees to deliver such Officer’s
Certificate to the Trustee and any such Conversion Agent and each other Agent promptly after the
occurrence of any such event.



     Section 4.12. Settlement Upon Conversion.



     (a) Holders surrendering Securities for conversion shall be entitled to receive, for each
$1,000 principal amount of Securities surrendered for conversion: (A) cash in an amount equal to
the lesser of (1) $1,000 and (2) the Conversion Value; and (B) if the Conversion Value is greater
than $1,000, a number of shares of Common Stock (the “Remaining Shares”) equal to the sum of the
Daily Share Amounts for each of the 40 consecutive Trading Days in the Conversion Reference Period,
appropriately adjusted to reflect events occurring during the Conversion Reference Period that
would result in an adjustment to Conversion Rate in accordance with the provisions of Section 4.06,
subject to the Company’s right to deliver cash in lieu of all or a portion of such Remaining Shares
as set forth in Section 4.12(b). The Company will deliver such cash and any shares of Common Stock,
together with any cash payable for fractional shares, to such Holder in accordance with Section
4.02(a).



     (b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Remaining Shares otherwise issuable pursuant to Section 4.12(a).
In such event, on any day prior to the first Trading Day of the applicable Conversion Reference
Period, the Company may specify a percentage of the Daily Share Amount that will be settled in cash
(the “Cash Percentage”). If the Company elects to specify a Cash Percentage, the amount of cash
that the Company will deliver for each Trading Day in the applicable Conversion Reference Period
will equal the product of: (1) the Cash Percentage, (2) the Daily Share Amount for such Trading Day
and (3) the Volume Weighted Average Price of the Company’s Common Stock on such Trading Day. The
number of shares that the Company shall deliver in respect of each Trading Day in the applicable
Conversion Reference Period will be a percentage of the Daily Share Amount equal to 100% minus the
Cash Percentage. If the Company does not specify a Cash Percentage by the start of the applicable
Conversion Reference Period, the Company shall settle 100% of the Daily Share Amount for each
Trading Day in the applicable Conversion Reference Period with shares of Common Stock; provided,
however, that the Company shall pay cash in lieu of fractional shares otherwise issuable upon
conversion of the Securities in accordance with Section 4.03.



     (c) For the purposes of Sections 4.12(a) and (b), in the event that any of Conversion Value,
Daily Conversion Value, Daily Share Amounts, or Volume Weighted Average Price is not calculable for
all portions of the Conversion Reference Period, the Company’s Board of Directors shall in good
faith determine the values necessary to calculate the Conversion Value, Daily Conversion Value,
Daily Share Amounts, and Volume Weighted Average Price (which calculations shall be evidenced by an
Officer’s Certificate delivered to the Trustee).



41









 





ARTICLE 5




COVENANTS




     Section 5.01. Payment of Securities.



     (a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the Securities and this Indenture. A payment of principal or interest
shall be considered paid on the date it is due if the Paying Agent (other than the Company) (or if
the Company is the Paying Agent, the segregated account or separate trust fund maintained by the
Company pursuant to Section 2.04) holds by 10:00 a.m., New York City time, on that date money,
deposited by or on behalf of the Company sufficient to make the payment. Accrued and unpaid
interest on any Security that is payable (whether or not punctually paid or duly provided for) on
any Interest Payment Date shall be paid to the Person in whose name that Security is registered at
the close of business on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose. The Company shall, to the fullest extent permitted by law, pay
interest in immediately available funds on overdue principal and interest at the annual rate borne
by the Securities compounded semiannually, which interest shall accrue from the date such overdue
amount was originally due to the day preceding the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable on demand.



     (b) Payment of the principal of and interest, if any, on the Securities shall be made at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York (which shall initially be the Corporate Trust Office of the Trustee) in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company payment of interest
on any Certificated Securities having an aggregate principal amount of $5,000,000 or less may be
made by check mailed to the address of the Person entitled thereto as such address appears in the
Register; provided further that a Holder of a Certificated Security having an aggregate principal
amount of more than $5,000,000 will be paid by wire transfer in immediately available funds at the
election of such Holder if such Holder has provided wire transfer instructions to the Trustee at
least 10 Business Days prior to the payment date. Any wire transfer instructions received by the
Trustee will remain in effect until revoked by the Holder. In the case of a permanent Global
Security, interest payable on any applicable payment date will be paid to the Depositary, with
respect to that portion of such permanent Global Security held for its account by Cede & Co. for
the purpose of permitting such party to credit the interest received by it in respect of such
permanent Global Security to the accounts of the beneficial owners thereof.



     Section 5.02. Reports by Company and the Guarantors.



     (a) The Company shall deliver to the Trustee, within 15 days after it files them with the SEC,
copies of all annual reports, quarterly reports and other documents that it files with the SEC
pursuant to Sections 13 or 15(d) of the Exchange Act. The Company also shall comply with the
provisions of TIA Section 314(a).



42









 





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



     Section 5.03. Compliance Certificates.



     The Company shall deliver to the Trustee, within one hundred twenty (120) days after the
end of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2007),
an Officer’s Certificate as to the signer’s knowledge of the Company’s compliance with all
conditions and covenants on its part contained in this Indenture and stating whether or not the
signer knows of any Default or Event of Default. If such signer knows of such a Default or Event of
Default, the Officer’s Certificate shall describe the Default or Event of Default and the efforts
to remedy the same. For the purposes of this Section 5.03, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture. Such certificates need not comply with Section 12.04 of this Indenture.



     The Company shall deliver to the Trustee, as soon as possible and in any event within five
days after the Company becomes aware of the occurrence of any Default or Event of Default an
Officer’s Certificate setting forth the details of such Default or Event of Default and the action
which the Company proposes to take with respect thereto.



     Section 5.04. Further Instruments and Acts.



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



     Section 5.05. Maintenance of Corporate Existence.



     Subject to Article 6, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.



     Section 5.06. Stay, Extension And Usury Laws.



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



     Section 5.07. Maintenance of Office or Agency.



     The Company shall maintain an office or agency where Securities may be presented or
surrendered for payment. The Company also will maintain an office or agency where Securities may be



43









 







surrendered for registration of transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The office of the Trustee,
at its Corporate Trust Office, will be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. If at any time the Company shall fail to maintain any
such required offices or agencies or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the office of the
Trustee and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.



     The Company may from time to time designate one or more other offices or agencies (in or
outside of The City of New York) where the Securities may be presented or surrendered for any or
all such purposes, and may from time to time rescind such designation. The Company will give prompt
written notice to the Trustee of any such designation or rescission and any change in the location
of any such office or agency.



     Section 5.08. Guarantees.



     If any Subsidiary of the Company (including any Subsidiary of the Company formed or
acquired after the Issue Date) shall become a guarantor of the 5.750% Notes or of the 6.375% Notes,
then such Subsidiary shall (i) execute and deliver to the Trustee a supplemental indenture pursuant
to which such Subsidiary shall unconditionally Guarantee all of the Company’s obligations under the
Securities and this Indenture on the terms set forth in Article Eleven and (ii) deliver to the
Trustee an Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized, executed and delivered by such
Subsidiary and constitutes a legal, valid, binding and enforceable obligation of such
Subsidiary, subject to customary exceptions. Such opinion need not comply with Section 12.04 of
this Indenture.



ARTICLE 6




CONSOLIDATION; MERGER; SALE OF ASSETS




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



     (a) The Company shall not consolidate with or merge with or into (whether or not the Company
is the surviving Person) any other entity and the Company shall not sell, convey, assign, transfer,
lease or otherwise dispose of all or substantially all of the Company’s assets to any Person in a
single transaction or series of related transactions, unless:




     (1) either (A) the Company shall be the surviving Person or (B) the surviving Person
(if other than the Company) shall be a corporation or limited liability company organized
and validly existing under the laws of the United States of America or any State thereof or
the District of Columbia, and shall, in any such case, expressly assume by a supplemental
indenture, the due and punctual payment of the principal of and interest on all the
Securities and the performance and observance of every covenant of this Indenture to be
performed or observed on the part of the Company;




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



44









 






     (3) if the Company will not be the resulting or surviving Person, the Company shall
have, at or prior to the effective date of such consolidation or merger or sale, conveyance,
assignment, transfer, lease or other disposition, delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation, merger or
transfer complies with this Article 6.01 and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture complies with this Article,
and that all conditions precedent herein provided for relating to such transaction have been
complied with.



     Section 6.02. Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other
Person or any sale, conveyance, assignment, transfer, lease or other disposition of all or
substantially all of the Company’s assets in accordance with Section 6.01, the successor Person
formed by such consolidation or into which the Company is merged or to which such sale, conveyance,
assignment, transfer, lease or other disposition 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 7




DEFAULT AND REMEDIES




     Section 7.01. Events of Default.



     (a) An “Event of Default” wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):




     (1) a default by the Company in the payment of the principal amount or Fundamental
Change Purchase Price of any Security when the same becomes due and payable whether at the
Final Maturity Date, upon purchase, acceleration or otherwise; or




     (2) a default by the Company in the payment of any interest under the Securities, which
default continues for 30 days after the date when due; or




     (3) a default by the Company in the delivery when due of all cash and any shares of
Common Stock deliverable upon conversion of the Securities, which default continues for 15
days; or




     (4) failure by the Company to provide an Issuer Fundamental Change Notice within the
time required to provide such notice as set forth in Section 3.01(b) hereof; or




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



45









 






     (6) one or more defaults shall have occurred under any of the agreements, indentures or
instruments under which the Company or any Restricted Subsidiary then has outstanding
indebtedness in excess of $40 million, individually or in the aggregate, and either:




     (A) such default results from the failure to pay such indebtedness at its
stated final maturity and such default has not been cured or the indebtedness repaid
in full within ten days of the default; or




     (B) such default or defaults have resulted in the acceleration of the maturity
of such indebtedness and such acceleration has not been rescinded or such
indebtedness repaid in full within ten days of the acceleration;




     (7) one or more judgments or orders that exceed $40 million in the aggregate (net
of amounts covered by insurance or bonded) for the payment of money have been entered by a
court or courts of competent jurisdiction against the Company or any Restricted Subsidiary
and such judgment or judgments have not been satisfied, stayed, annulled or rescinded within
60 days after such judgment or judgments become final and nonappealable; or




     (8) any Guarantee by a Significant Subsidiary shall for any reason cease to be, or
shall for any reason be asserted in writing by any Guarantor or the Company not to be,
in full force and effect and enforceable in accordance with its terms, except to the
extent contemplated by this Indenture and any such Guarantee; or




     (9) the Company or any Restricted Subsidiary that is a Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:




     (A) commences a voluntary insolvency proceeding;




     (B) consents to the entry of an order for relief against it in an involuntary
insolvency proceeding or consents to its dissolution or winding-up;




     (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 takes any comparable action under any foreign laws relating to insolvency; provided,
however, that the liquidation of any Restricted Subsidiary into another Restricted
Subsidiary, other than as part of a credit reorganization, shall not constitute an Event of
Default under this Section 7.01(a)(9); or




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




     (A) is for relief against the Company or any Restricted Subsidiary that is
a Significant Subsidiary in an involuntary insolvency proceeding;



46









 






     (B) appoints a Custodian of the Company or any Restricted Subsidiary that is a
Significant Subsidiary or for any substantial part of their property;




     (C) orders the winding-up, liquidation or dissolution of the Company or any
Restricted Subsidiary that is a Significant Subsidiary;




     (D) orders the presentation of any plan or arrangement, compromise or
reorganization of the Company or any Restricted Subsidiary that is a Significant
Subsidiary; or




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



     and in each such case the order or decree remains unstayed and in effect for 90 days.



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



     (c) The Company will deliver to the Trustee, within 30 days after becoming aware of the
occurrence of a Default or Event of Default, written notice thereof.



     Section 7.02. Acceleration.



     If an Event of Default (other than an Event of Default specified in clause (9) or (10) of
Section 7.01(a)) shall occur and be continuing with respect to this Indenture, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities then Outstanding may,
and the Trustee at the request of such Holders shall, declare all unpaid principal of and accrued
interest on all Securities to be due and payable, by a notice in writing to the Company (and to the
Trustee if given by the Holders of the Securities). Upon any such declaration, such principal and
interest shall become due and payable immediately. If an Event of Default specified in clause (9)
or (10) of Section 7.01(a) occurs and is continuing, then all the Securities shall ipso facto
become and be due and payable immediately in an amount equal to the principal amount of the
Securities, together with accrued and unpaid interest, if any, to the date the Securities become
due and payable, without any declaration or other act on the part of the Trustee or any Holder.
Thereupon, the Trustee may, at its discretion, proceed to protect and enforce the rights of the
Holders of the Securities by appropriate judicial proceedings.



     After a declaration of acceleration with respect to the Securities, but before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:



     (a) the Company has paid or deposited with the Trustee a sum sufficient to pay



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     (1) all sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,




     (2) all overdue interest on all Outstanding Securities,




     (3) the principal of any Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the Securities,
and




     (4) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities;



     (b) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction; and



     (c) all Defaults or Events of Default, other than the non-payment of principal of and interest
on the Securities which have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 7.13. No such rescission shall affect any subsequent Default or
impair any right consequent thereon.



     Notwithstanding the foregoing, to the extent elected by the Company, the sole remedy for
an Event of Default relating to the failure by the Company to comply with the provisions of Section
5.02 of this Indenture shall, for the first 365 days after the occurrence of such an Event of
Default, consist exclusively of the right to receive special interest (“Special Interest”) on the
Securities at an annual rate
equal to 0.50% of the principal amount of the Securities. Such Special Interest shall be paid
semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date
following the date on which such Special Interest began to accrue on the Securities. Special
Interest shall accrue on all Outstanding Securities from and including the date on which an Event
of Default relating to a failure to comply with the provisions of Section 5.02 shall first occur to
but not including the 365th day thereafter (or such earlier date on which such Event of Default
shall have been cured or waived). On such 365th day (or earlier, if the Event of Default relating
to the failure to comply with Section 5.02 is cured or waived prior to such 365th day), such
Special Interest shall cease to accrue and, if the Event of Default relating to the failure to
comply with Section 5.02 shall not have been cured or waived prior to such 365th day, the
Securities shall be subject to acceleration as provided in this Section 7.02. The provisions of
this paragraph shall not affect the rights of Holders in the event of the occurrence of any other
Event of Default. In the event the Company shall not elect to pay Special Interest upon an Event of
Default resulting from the failure of the Company to comply with the provisions of Section 5.02,
the Securities shall be subject to acceleration as provided above in this Section 7.02.



     If the Company shall elect to pay Special Interest in connection with an Event of Default
relating to its failure to comply with the requirements of Section 5.02, (1) the Company shall
notify all Holders and the Trustee and Paying Agent of such election on or before the close of
business on the date on which such Event of Default shall first occur, and (2) all references
herein to interest accrued or payable as of any date shall include any Special Interest accrued or
payable as of such date as provided in this Section 7.02.



     Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if:



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     (a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or



     (b) default is made in the payment of the principal of any Security at the Stated Maturity
thereof,


the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest, with interest upon the overdue principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest, at the rate borne by the
Securities; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.




     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.



     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders under this Indenture or any Guarantee
by such appropriate private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in any Guarantee or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy,
subject however to Section 7.12. No recovery of any such judgment upon any property of the
Company or any Guarantor shall affect or impair any rights, powers or remedies of the Trustee or
the Holders.



     Section 7.04. Trustee May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,



     (a) to file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and to file such 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 of
the Holders allowed in such judicial proceeding, and



     (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official
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 the


49









 






Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.



     Section 7.05. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture, the Securities or the Guarantees
may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.



     Section 7.06. Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article 7 or otherwise on behalf of
the Holders or the Trustee pursuant to this Article 7 or through any proceeding or any arrangement
or restructuring in anticipation or in lieu of any proceeding contemplated by this Article 7 and
any money or other property distributable in respect of the Company’s obligations under this
Indenture after an Event of Default shall be applied, subject to applicable law, in the following
order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee (or any predecessor trustee) under
Section 8.07;



     SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal
and interest, in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and interest; and



     THIRD: The balance, if any, to the Person or Persons entitled thereto, including the Company,
provided that all sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.



     Section 7.07. Limitation on Suits.



     No Holder of any Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Securities, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless



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



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     (b) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as trustee hereunder;



     (c) such Holder or Holders have offered to the Trustee a reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee for 15 days after its receipt of such notice, request and offer (and if
requested, provision) of indemnity has failed to institute any such proceeding; and



     (e) no direction inconsistent with such written request has been given to the Trustee during
such 15-day period by the Holders of a majority in principal amount of the Outstanding Securities;


it being understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this Indenture or any
Security, except in the manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.




     Section 7.08. Unconditional Right 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, interest, Fundamental Change Purchase Price,
if any, or Special Interest, if any, in respect of the Securities held by such Holder, on or after
the respective due dates
expressed in the Securities and this Indenture (whether upon repurchase or otherwise), and to
convert such Security in accordance with Article 4, and to bring suit for the enforcement of any
such payment on or after such respective due dates or for the right to convert in accordance with
Article 4, is absolute and unconditional and shall not be impaired or affected without the consent
of the Holder.



     Section 7.09. Restoration of Rights and Remedies.



     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case the
Company, any other obligor on the Securities, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.



     Section 7.10. Rights and Remedies Cumulative.



     No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.



51









 





     Section 7.11. 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 7 or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.



     Section 7.12. Control by Holders.



     The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, provided that:



     (a) such direction shall not be in conflict with any rule of law or with this Indenture,
expose the Trustee to personal liability, or be unduly prejudicial to Holders not joining therein;
and



     (b) subject to the provisions of Section 315 of the TIA, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.



     Section 7.13. Waiver of Past Defaults.



     Subject to Section 7.08, the Holders of a majority in aggregate principal amount of the
Securities then Outstanding by notice to the Trustee may waive an existing Default or Event of
Default and its
consequences, except an uncured Default or Event of Default in the payment of the principal of
or any accrued but unpaid interest on any Security, an uncured failure by the Company to convert
any Securities into Common Stock and cash, as applicable, or any Default or Event of Default in
respect of any provision of this Indenture or the Securities which, under Section 10.02, cannot be
modified or amended without the consent of the Holder of each Security affected. When a Default or
Event of Default is waived, it is cured and ceases to exist.



     Section 7.14. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of or interest on, any
Security on or after the respective Stated Maturities expressed in such Security (or, in the case
of purchase pursuant to Article 3 hereof, on the Fundamental Change Purchase Date).



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     Section 7.15. Remedies Subject to Applicable Law.



     All rights, remedies and powers provided by this Article 7 may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of law in the premises,
and all the provisions of this Indenture are intended to be subject to all applicable mandatory
provisions of law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law.



ARTICLE 8




TRUSTEE




     Section 8.01. Duties of Trustee.



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



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




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




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates or opinions
which 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
to the requirements of this Indenture;



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




     (1) this clause (c) does not limit the effect of clauses (b) or (d) of this Section
8.01;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction of the Holders of a majority in principal
amount of Outstanding Securities relating to the time, method and place of



53









 







conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture;



     (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it;



     (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b), (c), (d) and (f) of this Section
8.01; and



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



     Section 8.02. Notice of Default.



     Within 90 days after the occurrence of any Default, the Trustee shall transmit by mail to
all Holders and any other Persons entitled to receive reports pursuant to Section 313(c) of the
TIA, as their names and addresses appear in the Security Register, notice of such Default hereunder
known to the Trustee, unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of or interest on any Security or
the failure to deliver amounts owing upon conversion of a Security in accordance with the
provisions of Article 4, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of Trust Officers of the Trustee in good faith determines that the withholding
of such notice is in the interest of the Holders.



     Section 8.03. Certain Rights of Trustee.



     Subject to the provisions of Section 8.01 hereof:



     (a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon receipt by it of any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;



     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;



     (c) the Trustee may consult with counsel of its selection and any advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;



     (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 or direction of any of the Holders pursuant to this



54









 







Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;



     (e) the Trustee shall not be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion, 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, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation;



     (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 charged with knowledge of or be deemed to have notice of any
Default or Event of Default with respect to the Securities unless written notice of such Default or
Event of Default shall have been received by the Trustee at its Corporate Trust Office
from the Company or any Holder of Securities, and such notice references this Indenture and
the Securities;



     (i) the permissive rights of the Trustee enumerated herein shall not be construed as duties of
the Trustee;



     (j) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officer’s Certificate;



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



     (l) 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 Officer’s Certificate may be signed by any person
authorized to sign an Officer’s Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and



55









 





     (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 8.04. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof.



     The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.



     Section 8.05. Trustee and Agents May Hold Securities; Collections; etc.



     The Trustee, any Paying Agent, Registrar, Conversion Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or pledgee of Securities,
with the same rights it would have if it were not the Trustee, Paying Agent, Registrar, Conversion
Agent or such other agent and, subject to TIA Sections 310 and 311, may otherwise deal with the
Company and receive, collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee, Paying Agent, Registrar, Conversion Agent or such other
agent.



     Section 8.06. Money Held in Trust.



     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 mandatory provisions of law.



     Section 8.07. Compensation and Indemnification of Trustee and Its Prior Claim.



     The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the parties shall agree in writing from time to time for
all services rendered by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf of 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 agents and other persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from its gross negligence
or willful misconduct. The Company also covenants and agrees to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any claim, loss, liability, tax,
assessment or other governmental charge (other than taxes applicable to the Trustee’s compensation
hereunder) or expense incurred without gross negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including enforcement of this Section 8.07 and also including
any liability which the Trustee may incur as a result of failure to withhold, pay or report any
tax, assessment or other governmental charge, and the costs and expenses of



56









 







defending itself
against or investigating any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Company under this Section 8.07 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for reasonable expenses, disbursements and advances shall
constitute an additional obligation hereunder and, together with the lien referred in the next
sentence, shall survive the satisfaction and discharge, and termination for any reason, of this
Indenture and the resignation or removal of the Trustee and each predecessor Trustee. To secure the
Company’s obligations in this Section 8.07, the Trustee shall have a lien prior to the Securities
on all money and property held or collected by the Trustee, other than money or property held in
trust for the payment of principal of or interest on particular Securities.



     “Trustee” for purposes of this Section shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



     Without prejudice to its other rights hereunder, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 7.01(a)(9) or Section
7.01(a)(10), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.



     Section 8.08. Conflicting Interests.



     The Trustee shall comply with the provisions of Section 310(b) of the TIA. For purposes
of Section 310(b)(1) of the TIA and to the extent permitted thereby, the Trustee, in its capacity
as trustee in respect of the Securities, shall not be deemed to have a conflicting interest arising
from its capacity as trustee in respect of the 5.750% Notes or the 6.375% Notes issued pursuant to
the indenture dated as of
July 21, 2005, among the Company, the guarantors named therein, and The Bank of New York as
trustee, or any indenture or indentures pursuant to which other securities or certificates of
interest or participation in other securities of the Company are outstanding if the requirements
for such exclusion set forth in said Section 310(b)(1) are met. Nothing herein shall preclude the
Trustee from making the application referred to in the penultimate paragraph of Section 310(b) of
the TIA.



     Section 8.09. Trustee Eligibility.



     There shall at all times be a Trustee hereunder which shall be eligible to act as trustee
under TIA Section 310(a) and which shall have a combined capital and surplus of at least
$50,000,000, to the extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may appoint an agent in
The City of New York reasonably acceptable to the Company to conduct any activities which the
Trustee may be required under this Indenture to conduct in The City of New York. If such Trustee
publishes reports of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 8.09, 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. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article 8.



57









 





     Section 8.10. Resignation and Removal; Appointment of Successor Trustee.



     (a) No resignation or removal of the Trustee and no appointment of a successor trustee
pursuant to this Article 8 shall become effective until the acceptance of appointment by the
successor trustee under Section 8.11.



     (b) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice thereof to the Company. Such resignation shall take effect upon the
appointment of a successor Trustee and the acceptance of such appointment by such successor
Trustee. If the instrument of acceptance by a successor Trustee required by Section 811 shall not
have been delivered to the Trustee within 30 days after the giving of such notice of resignation or
of any removal of the Trustee as hereinafter provided, the resigning or removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities.



     (c) The Trustee may be removed at any time for any cause or for no cause by an Act of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.



     (d) If at any time:




     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months,




     (2) the Trustee shall cease to be eligible under Section 8.09 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed 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 case, (i) the Company may remove the Trustee, or (ii) subject to Section 7.14,
the Holder of any Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself 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.




     (e) If the Trustee shall be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, the Company shall promptly appoint a successor
trustee and shall comply with the applicable requirements of Section 8.11. If, within 60 days after
such removal or incapability, or the occurrence of such vacancy, the Company has not appointed a
successor Trustee, a successor trustee shall be appointed by the Act of the Holders of a majority
in principal amount of the Outstanding Securities delivered to the Company and the retiring
Trustee. Such successor trustee so appointed shall forthwith upon its acceptance of such
appointment become the successor trustee. If no successor trustee shall have been so appointed



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by
the Company or the Holders of the Securities and accepted appointment in the manner hereinafter
provided, the Trustee or the Holder of any Security who has been a bona fide Holder for at least
six months may, subject to Section 7.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the register
of the Registrar. Each notice shall include the name of the successor trustee and the address of
its Corporate Trust Office or agent hereunder.



     Section 8.11. Acceptance of Appointment by Successor.



     (a) Every successor trustee appointed hereunder 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 as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee, upon payment of its
charges pursuant to Section 8.07 then unpaid, such retiring Trustee shall pay over to the successor
trustee all moneys at the time held by it hereunder, subject nevertheless to its lien provided for
in Section 8.07, and shall execute and deliver an instrument transferring to such successor trustee
all such rights, powers, trusts and duties. 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 and powers.



     (b) No successor trustee with respect to the Securities shall accept appointment as provided
in this Section 8.11 unless at the time of such acceptance such successor trustee shall be eligible
to act as trustee under the provisions of TIA Section 310(a) and this Article 8 and shall
have a combined capital and surplus of at least $50,000,000 and have a Corporate Trust Office
or an agent selected in accordance with Section 8.09.



     (c) Upon acceptance of appointment by any successor trustee as provided in this Section 8.11,
the Company shall give notice thereof to the Holders of the Securities, by mailing such notice to
such Holders at their addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the appointment, then the notice called for by
the preceding sentence may be combined with the notice called for by Section 8.10. If the Company
fails to give such notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be given at the expense of the Company.



     Section 8.12. Merger, Conversion, Consolidation or Succession to Business.



     Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee (including the trust created by this Indenture) shall be the
successor of the Trustee hereunder, provided that such Person shall be eligible under TIA Section
310(a) and this Article 8 and shall have a



59









 







combined capital and surplus of at least $50,000,000 and
have a Corporate Trust Office or an agent selected in accordance with Section 8.09, without the
execution or filing of any paper or any further act on the part of any of the parties hereto.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor trustee; and in all such cases
such certificate shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.



     Section 8.13. Preferential Collection of Claims Against Company.



     If and when the Trustee shall be or become a creditor of the Company (or other obligor
under 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). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated therein.



     Section 8.14. Reports By Trustee.



     (a) Within 60 days after June 15 of each year commencing with the first June 15 after the
issuance of Securities, the Trustee, if so required under the TIA, shall transmit by mail to all
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as of
such June 15 in accordance with and with respect to the matters required by TIA Section 313(a). The
Trustee shall also transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), a brief report in accordance with and with respect to the
matters required by TIA Section 313(b)(2).



     (b) A copy of each report transmitted to Holders pursuant to this Section 8.14 shall, at the
time of such transmission, be mailed to the Company and filed with each national securities
exchange, if any, upon which the Securities are listed and also with the SEC. The Company will
notify the Trustee promptly if the Securities are listed on any national securities exchange.



ARTICLE 9




SATISFACTION AND DISCHARGE OF INDENTURE




     Section 9.01. Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further force and effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein expressly provided
for and except as further provided below), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when either:




     (1) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or



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paid as
provided in Section 2.08 and (ii) Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided in Section 2.04) have
been delivered to the Trustee for cancellation; or




     (2) all such Securities not theretofore delivered to the Trustee for cancellation have
become due and payable, whether on the Final Maturity Date or a Fundamental Change Purchase
Date, upon conversion or otherwise,



     provided, that




     (i) the Company has deposited with the Trustee, a Paying Agent (other than the
Company or any of its Affiliates) or a Conversion Agent, if applicable, immediately
available funds and/or shares of Common Stock, in trust for the purpose of and in an
amount sufficient to pay and discharge all indebtedness and obligations related to
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit and/or for the payment of amounts
due upon conversion;




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




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



     (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the Trustee under Section 8.07 and, if money shall have been deposited with
the Trustee pursuant to clause (2) of Section 9.01(a), the provisions of Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.13 and 5.01 and this Article 9 shall survive until the Securities have been
paid in full.



     Section 9.02. Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 2.04, all United States
dollars deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of and interest on, the
Securities for whose payment such United States dollars have been deposited with the Trustee.



     Section 9.03. Reinstatement.



     If the Trustee, any Paying Agent or any Conversion Agent is unable to apply any money in
accordance with Section 9.02 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 9.01 until such time
as the Trustee, such Paying Agent or such Conversion Agent is permitted to apply all such money in
accordance with Section 9.02;



61









 







provided, however, that if the Company has made any payment of the
principal of or interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive any such
payment from the money held by the Trustee, such Paying Agent or such Conversion Agent.



ARTICLE 10




AMENDMENTS; SUPPLEMENTS AND WAIVERS




     Section 10.01. Without Consent of Holders.



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




     (1) evidencing a successor to the Company or any Guarantor and the assumption by that
successor of the Company or such Guarantor’s obligations under this Indenture, the
Securities and the Guarantees;




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




     (3) securing the obligations of the Company or a Guarantor in respect of the
Securities;




     (4) evidencing and providing for the acceptance of the appointment of a successor
trustee in accordance with Article 8;




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




     (6) providing for conversion rights of Holders if any reclassification or change of
Common Stock or any consolidation, merger or sale of all or substantially all of the
Company’s property and assets occurs or otherwise complying with the provisions of this
Indenture in the event of a merger, consolidation or transfer of assets (including the
provisions of Section 4.10 and Article 6);




     (7) adding guarantees with respect to the Securities or releasing a Guarantor in
accordance with the terms of this Indenture;




     (8) increasing the Conversion Rate in accordance with the terms of the Securities;




     (9) curing any ambiguity, omission, mistake, defect or inconsistency in this Indenture;



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     (10) making any change that will not adversely affect the rights of the Holders in any
material respect; provided that any action to conform the terms of this Indenture to the
description of the Securities contained in the prospectus supplement, dated March 1, 2007,
relating to the Securities shall not be deemed to be adverse to the Holders.



     Section 10.02. With Consent of Holders.



     (a) The Company, the Guarantors and the Trustee may amend or supplement this Indenture, the
Securities and the Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities. However, without the written consent of each Holder
affected, an amendment or supplement may not:




     (1) alter the manner of calculation or rate of accrual of interest on any Security,
reduce the rate of interest on any Security or extend the time of payment of any installment
of interest on any Security;




     (2) change the Stated Maturity of the principal of any Security;




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




     (4) reduce the principal amount or Fundamental Change Purchase Price payable with
respect to any of the Securities;




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




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




     (7) change the provisions in this Indenture that relate to modifying or amending this
Indenture or waiving any past Default or Event of Default;




     (8) release any Guarantor from any of its obligations under its Guarantee or the
Indenture otherwise than in accordance with the terms of this Indenture; or




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



     (b) Without limiting the provisions of Section 10.02(a) hereof, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, on behalf of all the Holders of
all Securities, (i) waive compliance by the Company with the restrictive provisions of this
Indenture, and (ii) waive any past Default or Event of Default under this Indenture and its
consequences, except an uncured failure to pay when due the principal amount, accrued and unpaid
interest, or the Fundamental Change Purchase Price, if any and as applicable, or to deliver amounts
due upon conversion, with respect to the Securities, or in respect of any provision which under
this Indenture cannot be modified or amended without the consent of the Holder of each outstanding
Security affected.



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     (c) Upon delivery to the Trustee of a Company Request, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, if required, the Trustee shall, subject to Section
10.03, join with the Company and each applicable Guarantor in the execution of such supplemental
indenture.



     (d) It shall not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture but it shall be sufficient if such Act shall
approve the substance thereof.



     Section 10.03. Execution of Supplemental Indentures and Agreements.



     In executing, or accepting the additional trusts created by, any supplemental indenture,
agreement, instrument or waiver permitted by this Article 10 or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Section 12.04, and (subject to Section 8.01 and Section 8.03(a) hereof) shall
be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate each stating
that the execution of such supplemental indenture, agreement or instrument, or acceptance of any
such additional trust, is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture, agreement or instrument, or accept any
such additional trusts, which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Section 10.04. Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article 10, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.



     Section 10.05. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article 10 shall conform to the
requirements of the TIA as then in effect.



     Section 10.06. Reference in Securities to Supplemental Indentures.



     Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 10 may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the
Company and each applicable Guarantor and authenticated and delivered by the Trustee in exchange
for Outstanding Securities.



     Section 10.07. Notice of Supplemental Indentures.



     Promptly after the execution by the Company, any applicable Guarantor and the Trustee of
any supplemental indenture pursuant to the provisions of Section 10.02, the Company shall give
notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in
Section 11.02, setting forth in general terms the substance of such supplemental indenture. 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 supplemental indenture.



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ARTICLE 11




NOTE GUARANTEES




     Section 11.01. Guarantees.



     (a) Each Guarantor, hereby jointly and severally, absolutely, unconditionally and irrevocably
guarantees the Securities and obligations of the Company hereunder and thereunder, and guarantees
to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, that (i) the principal of and interest on the Securities will be paid in
full when due, whether at the Final Maturity Date or a Fundamental Change Purchase Date, by
acceleration or otherwise (including, without limitation, the amount that would become due but for
the operation of any automatic stay provision of any Bankruptcy Law), together with interest on the
overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be paid
in full or performed or observed, all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Securities or of any such other
obligations, the same will be paid in full when due or performed or observed in accordance with the
terms of the extension or renewal, whether at the Final Maturity Date or a Fundamental Change
Purchase Date, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in Section 11.03 hereof.



     Each Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of Securities with
respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of
any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a Guarantor.



     (b) Each Guarantor hereby waives (to the extent permitted by law) the benefits of
diligence, presentment, demand for payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company or any other Person, protest, notice and all demands whatsoever and covenants that the
Guarantee of such Guarantor shall not be discharged as to Securities except by complete performance
of the obligations contained therein, this Indenture and such Guarantee. Each Guarantor
acknowledges that the Guarantee is a guarantee of payment and not of collection. Each of the
Guarantors hereby agrees that, in the event of a default in payment of principal or interest on
such Security, whether at the Final Maturity Date or a Fundamental Change Purchase Date, by
acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, subject to the terms and conditions set forth in this Indenture,
directly against each of the Guarantors to enforce such Guarantor’s Guarantee without first
proceeding against the Company or any other Guarantor. Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to accelerate the maturity of
the Securities, to collect interest on the Securities, or to enforce or exercise any other right or
remedy with respect to the Securities, such Guarantor will pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due



65









 







and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or any Guarantor , any amount paid by any of them to the Trustee or
such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) subject to this
Article 11, the maturity of the obligations guaranteed hereby may be accelerated as provided in
Article 7 hereof for the purposes of the Guarantee of such Guarantor, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in
Article 7 hereof, such obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of the Guarantee of such Guarantor.



     (d) Each Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Company for liquidation or reorganization, should the
Company become insolvent or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company’s assets, and shall, to the
fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if
at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on the Securities,
whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Securities shall, to the fullest extent
permitted by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.



     (e) To evidence its Guarantee, each Guarantor hereby agrees that a Notation of Guarantee
substantially in the form attached as Exhibit B hereto will be endorsed by an Officer of such
Guarantor on each Security authenticated and delivered to the Trustee and that this Indenture or a
supplemental indenture to this Indenture in substantially the form of Exhibit C hereto will be
executed on behalf of such Guarantor by one of its Officers. Each Guarantor hereby agrees that its
Guarantee will remain in full force and effect notwithstanding any failure to endorse on each
Security a Notation of Guarantee. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, will be deemed to constitute due delivery of the Notation of
Guarantee set forth in this Indenture by the Guarantors.



     Section 11.02. Severability.



     In case any provision of any Guarantee 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.



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     Section 11.03. Limitation of Liability. 



     Each Guarantor and by its acceptance hereof each Holder confirms that it is the intention
of all such parties that the Guarantee by each such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the
foregoing intention, the Holders and each such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee shall be limited to the maximum amount that will
not, after giving effect to all other contingent and fixed liabilities of such Guarantor and after
giving effect to any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or pursuant to this Article
11, result in the obligations of such Guarantor under its Guarantee constituting such fraudulent
transfer or conveyance.



     Section 11.04. Contribution.



     In order to provide for just and equitable contribution among the Guarantors, the
Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor
under a Guarantee, such Guarantor will be entitled to a contribution from any other Guarantor in a
pro rata amount based on the net assets of each Guarantor determined in accordance with GAAP.



     Section 11.05. Subrogation. 



     Each Guarantor shall be subrogated to all rights of Holders against the Company in
respect of any amounts paid by any Guarantor pursuant to the provisions of Section 11.01; provided,
however, that if an Event of Default has occurred and is continuing, no Guarantor shall be entitled
to enforce or receive any payments arising out of, or based upon, such right of subrogation until
all amounts then due and payable by the Company under this Indenture or the Securities shall have
been paid in full.



     Section 11.06. Reinstatement. 



     Each Guarantor hereby agrees (and each Person who becomes a Guarantor shall agree) that
the Guarantee provided for in Section 11.01 shall continue to be effective or be reinstated, as the
case may be, if at any time, payment, or any part thereof, of any obligations or interest thereon
is rescinded or must otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor.



     Section 11.07. Release of a Guarantor. 



     Notwithstanding the foregoing, each Guarantee by a Guarantor of the Securities shall
provide by its terms that it shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company’s Capital Stock in, or all or substantially all the assets of, such Guarantor, which
transaction is in compliance with the terms of this Indenture and pursuant to which transaction
such Guarantor is released from all guarantees, if any, by it of other Indebtedness of the Company
or any of its Subsidiaries, (ii) such Subsidiary ceasing to be a guarantor of the 5.750% Notes and
of the 6.375% Notes (other than by reason of a payment under a guarantee by any Subsidiary) or
(iii) payment in full of all principal and interest on the Securities.



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     Section 11.08. Benefits Acknowledged. 



     Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that its respective Guarantee and waiver
pursuant to its respective Guarantee is knowingly made in contemplation of such benefits.



ARTICLE 12




MISCELLANEOUS




     Section 12.01. Conflict with Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with any provision of the TIA or
another provision which is required or deemed to be included in this Indenture by any of the
provisions of the TIA, the provision or requirement of the TIA shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded,
as the case may be.



     Section 12.02. Notices.



     Any demand, authorization notice, request, consent or communication shall be given in
writing and mailed by first-class mail, postage prepaid, or delivered by recognized overnight
courier 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:



Mylan Laboratories Inc.

1500 Corporate Drive

Canonsburg, PA 15317

Attention: Kristin Kolesar, Corporate Counsel

Facsimile No.: (724) 514-1871



or
at any other address previously furnished in writing to the Trustee by the Company, with
a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square

New York, New York 10036

Attention: Stacy J. Kanter, Esq.

Facsimile No.: (212) 735-3000



if to the Trustee, to:



THE BANK OF NEW YORK

101 Barclay Street, 8W

New York, New York 10286

Attention: Corporate Trust Division – Corporate Finance Unit

Facsimile No.: (212) 815-5707




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or at any other address previously furnished in writing to the Holders or the Company or any
other obligor on the Securities by the Trustee.



     Such notices or communications shall be effective only when actually received.



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



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to each Holder affected
by such event, at its address as it appears in the register kept by the Primary Registrar, not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice or by any other manner deemed acceptable to the Trustee. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such Holder. Where this
Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause,
it shall be impracticable to mail notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.



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



     Section 12.03. Disclosure of Names and Addresses of Holders.



     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities, and the Trustee shall comply with TIA Section
312(b). The Company, the Trustee, the Registrar and any other Person shall have the protection of
TIA 312(c). Further, every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312.



     Section 12.04. Compliance Certificates and Opinions.



     (a) Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture and as may be requested by the Trustee, the Company shall furnish to
the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to



69









 







which the
furnishing of such certificates or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional certificate or opinion
need be furnished.



     (b) Every certificate or Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Indenture shall include:




     (1) a statement that the Person signing such certificate or opinion has read and
understands such covenant or condition and the definitions herein relating thereto;




     (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, such Person has made such
examination or investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (4) a statement as to whether, in the opinion of such Person, such condition or
covenant has been complied with.



     Section 12.05. Acts of Holders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 12.05.



     (b) The ownership of Securities shall be proved by the register maintained by the Primary
Registrar.



     (c) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent or Conversion Agent,
or the Company or any other obligor of the Securities in reliance thereon, whether or not notation
of such action is made upon such Security.



     (d) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying



70









 







that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.



     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of such Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in connection therewith
and no later than the date such first solicitation is completed.



     (f) If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after such record date.



     (g) For purposes of this Indenture, any action by the Holders which may be taken in writing
may be taken by electronic means or as otherwise reasonably acceptable to the Trustee.



     Section 12.06. Benefits of Indenture.



     Nothing in this Indenture or in the Securities or the Guarantees, express or implied,
shall give to any Person (other than the parties hereto and their successors hereunder, any Paying
Agent and the Holders) any benefit or any legal or equitable right, remedy or claim under this
Indenture.



     Section 12.07. Legal Holidays.



     In any case where any Interest Payment Date, Fundamental Change Purchase Date or Final
Maturity Date of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or principal need not be made
on such date, but may be made on the next succeeding Business Day with the same force and effect as
if made on such Interest Payment Date, Fundamental Change Purchase Date or Final Maturity Date, and
no interest shall accrue with respect to such payment for the period from and after such Interest
Payment Date, Fundamental Change Purchase Date or Final Maturity Date, as the case may be, to the
next succeeding Business Day.



71









 





     Section 12.08. Governing Law; Waiver of Trial by Jury.



     THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, 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 12.09. No Adverse Interpretation of Other Agreements.



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



     Section 12.10. No Personal Liability of Directors, Officers, Employees and
Stockholders.



     No director, officer, employee, stockholder, incorporator or agent of the Company or any
Guarantor, as such, will have any liability for any obligations of the Company or such Guarantor
under the Securities, the Guarantees, the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Securities by accepting a
Security waives and releases all such liability.



     Section 12.11. Successors and Assigns.



     All covenants and agreements in this Indenture by the Company and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.



     Section 12.12. Multiple Counterparts.



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



     Section 12.13. Separability Clause.



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



     Section 12.14. Schedules and Exhibits.



     All schedules and exhibits attached hereto are by this reference made a part hereof with
the same effect as if herein set forth in full.



     Section 12.15. Effect of Headings and Table of Contents.



     The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.



72









 





[SIGNATURE PAGES FOLLOW]




73









 








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



	 	 	 	 	 	 	 
	 

	 	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	MYLAN LABORATORIES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward J. Borkowski 	 	 
	 

	 	 	 	 

Name: Edward J. Borkowski
	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	MILAN HOLDING INC.	 	 
	 

	 	 	 	MYLAN INC.	 	 
	 

	 	 	 	MYLAN TECHNOLOGIES INC.	 	 
	 

	 	 	 	MYLAN INTERNATIONAL HOLDINGS, INC.	 	 
	 

	 	 	 	MYLAN CARIBE, INC.	 	 
	 

	 	 	 	UDL LABORATORIES, INC.	 	 
	 

	 	 	 	BERTEK INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward J. Borkowski 	 	 
	 

	 	 	 	 

Name: Edward J. Borkowski
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	MLRE LLC	 	 
	 
	 

	 	By:	 	/s/ Edward J. Borkowski 	 	 
	 

	 	 	 	 

Name: Edward J. Borkowski
	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	MP AIR INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward J. Borkowski 	 	 
	 

	 	 	 	 

Name: Edward J. Borkowski
	 	 
	 

	 	 	 	Title: President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	MYLAN PHARMACEUTICALS INC.	 	 
	 

	 	 	 	MYLAN BERTEK PHARMACEUTICALS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward J. Borkowski 	 	 
	 

	 	 	 	 

Edward J. Borkowski
	 	 
	 

	 	 	 	Title: Executive Vice President	 	 






74









 






	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Mary LaGumina 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Mary LaGumina	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 







75










 





Exhibit A




[FORM OF FACE OF SECURITY]



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.1




Mylan Laboratories Inc.




1.25% Senior Convertible Notes due 2012




			
	No.                     
	 	CUSIP: 628530AG2






     Mylan Laboratories Inc., a Pennsylvania corporation, promises to pay to                      or
registered assigns the principal amount of                                                               dollars ($[            
          ]) on
March 15, 2012.



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



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



Dated:                                         




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





 




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




A-1









 










	 	 	 	 	 	 	 
	 	 	MYLAN LABORATORIES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Dated:




Trustee’s Certificate of Authentication:




This is one of the Securities referred to in

the within-mentioned Indenture.




THE BANK OF NEW YORK, as Trustee




By:                                                             

     Authorized Signatory




A-2









 





[FORM OF REVERSE SIDE OF SECURITY]




Mylan Laboratories Inc.




1.25% Senior Convertible Notes due 2012




     1. Interest



     Mylan Laboratories Inc., a Pennsylvania corporation (the “Company”, which term shall include
any successor company under the Indenture hereinafter referred to), promises to pay interest on the
principal amount of this Security at the rate of 1.25% per annum. The Company shall pay interest
semiannually on March 15 and September 15 of each year (each an “Interest Payment Date”),
commencing September 15, 2007. Interest payable on any Interest Payment Date shall include interest
accrued from and including the immediately preceding Interest Payment Date (or if none, from and
including March 7, 2007) to but excluding the relevant Interest Payment Date. Cash interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months. Any payment required to
be made on a day that is not a Business Day shall be made on the next succeeding Business Day with
the same force and effect as if made on such day and without any interest in respect of the delay.
The Company shall, to the fullest extent permitted by law, pay interest in immediately available
funds on overdue principal and interest at the rate of 1.25% per annum, compounded semiannually,
which interest shall accrue from the date such overdue amount was originally due to the day
preceding the date payment of such amount, including interest thereon, has been made or duly
provided for.



     Any reference herein to interest accrued or payable as of any date shall include any Special
Interest that may be payable in accordance with the provisions of Section 7.02 of the Indenture.



     2. Method of Payment



     The Company shall pay interest on this Security (except defaulted interest) to the Person who
is the Holder of this Security at the close of business on March 1 or September 1, as the case may
be (each, a “Regular Record Date”) next preceding the related Interest Payment Date. The Holder
must surrender this Security to a Paying Agent to collect payment of principal. The Company will
pay principal and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts.



     3. Paying Agent, Registrar and Conversion Agent



     Initially, The Bank of New York (the “Trustee”, which term shall include any successor trustee
under the Indenture hereinafter referred to) will act as Paying Agent, Registrar and Conversion
Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to the
Holders. The Company or any of its Affiliates may, subject to certain limitations set forth in the
Indenture, act as Paying Agent.



     4. Indenture



     This Security is one of a duly authorized issue of Securities of the Company designated as its
1.25% Senior Convertible Notes Due 2012 (the “Securities”), issued under an Indenture, dated as of
March 7, 2007 (together with any supplemental indentures thereto, the “Indenture”), among the
Company, the Guarantors named therein and the Trustee. The terms of this Security include those
stated in the Indenture and those required by or made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (the “TIA”), as in effect on the date of the Indenture.
This Security is subject to



A-3









 







all such terms, and the Holder of this Security is referred to the Indenture and the TIA for a
statement of them. The Securities are limited to $600,000,000 aggregate principal amount. The
Indenture does not limit other debt of the Company, secured or unsecured.



     Capitalized terms not otherwise defined herein have the meaning ascribed to such terms in the
Indenture.



     5. Purchase of Securities at Option of Holder Upon a Fundamental Change



     Upon a Fundamental Change, at the option of the Holder and subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase for cash all or any part specified
by the Holder (so long as the principal amount of such part is $1,000 or an integral multiple of
$1,000) of the Securities held by such Holder on the date specified by the Company in accordance
with the provisions of Article 3 of the Indenture. The purchase price of any Securities so
purchased shall equal 100% of the principal amount thereof together with accrued and unpaid
interest, if any, to, but excluding, the Fundamental Change Purchase Date. If the Fundamental
Change Purchase Date falls on a day that is after the Regular Record Date and on or prior to the
corresponding Interest Payment Date, interest, accrued and unpaid hereon to, but not including, the
applicable Fundamental Change Purchase Date, will be paid to the Holder in whose name such Security
is registered at the close of business on the Regular Record Date immediately preceding the
applicable Fundamental Change Purchase Date.



     6. Conversion



     Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, the Holder may surrender for conversion all or any portion
of this Security that is in an integral multiple of $1,000. Upon conversion, the Holder shall be
entitled to receive the consideration specified in the Indenture. No fractional share of Common
Stock shall be issued upon conversion of a Security. Instead, the Company shall pay a cash
adjustment as provided in the Indenture. The initial Conversion Rate of the Securities shall be
44.5931 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment in
accordance with the provisions of Article 4 of the Indenture. If a Holder converts all or any
portion of this Security in connection with the occurrence of certain Fundamental Change
transactions, the Conversion Rate shall be increased in the manner and to the extent described in
Section 4.01(i) of the Indenture.



     Securities surrendered for conversion (in whole or in part) during the period from the close
of business on any Regular Record Date to the opening of business on the next succeeding Interest
Payment Date shall be accompanied by payment by the Holders of such Securities in funds to the
Conversion Agent acceptable to the Company of an amount equal to the interest payable on such
corresponding Interest Payment Date; provided that no such payment need be made: (1) in connection
with a conversion following the Regular Record Date preceding the Final Maturity Date; (2) if the
Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on
or prior to the corresponding Interest Payment Date; or (3) to the extent of any overdue interest,
if any overdue interest exists at the time of conversion with respect to such Security.



     A Security in respect of which a Holder has submitted a Fundamental Change Purchase Notice may
be converted only if such Holder validly withdraws such Fundamental Change Purchase Notice in
accordance with the terms of the Indenture.



A-4









 





     7. Denominations, Transfer, Exchange



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



     8. Persons Deemed Owners



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



     9. Unclaimed Money



     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and any Paying Agent will pay the money back to the Company, subject to the provisions of the
Indenture. After that, Holders entitled to money must look to the Company for payment as general
creditors.



     10. Amendment, Supplement and Waiver



     Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived subject to certain
exceptions with the consent of the Holders of a majority in aggregate principal amount of the
Securities then Outstanding. Without the consent of or notice to any Holder, the Company, the
Guarantors and the Trustee may amend or supplement the Indenture or the Securities to, among other
things, (x) cure any ambiguity, omission, mistake, defect or inconsistency or (y) make any other
change that does not adversely affect the interests of the Holders in any material respect.



     11. Successor Entity



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



     12. Defaults and Remedies



     An Event of Default shall occur upon the occurrence of any of the events specified in Section
7.01(a) of the Indenture. Subject to the provisions of the penultimate paragraph of Section
7.02(c) of the Indenture, if an Event of Default shall occur and be continuing with respect to the
Securities (other than an Event of Default specified in clause (9) or (10) of Section 7.01(a) of
the Indenture), the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities then Outstanding may, and the Trustee at the request of such Holders shall, declare
all unpaid principal of and accrued interest on all Securities to be due and payable, by a notice
in writing to the Company (and to the Trustee if given by the Holders of the Securities). Upon any
such declaration, such principal and interest shall become due and payable immediately. If an Event
of Default specified in clauses (9) or (10) of Section 7.01(a) of the Indenture occurs and is
continuing, then all the Securities shall ipso facto become and be due and payable immediately in
an amount equal to the principal amount of the Securities, together with accrued and



A-5









 







unpaid interest, if any, to the date the Securities become 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 Outstanding, by
written notice to the Company and the Trustee, may rescind and annul an acceleration and its
consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1)
all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue
interest on all Outstanding Securities, (3) the principal of any Outstanding Securities which have
become due otherwise than by such declaration of acceleration and interest thereon at the rate
borne by the Securities, and (4) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Securities; (b) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction; and (c) all Defaults and Events
of Default, other than the non-payment of principal of and interest on the Securities which have
become due solely by such declaration of acceleration, have been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent thereon.



     Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may, in accordance with the provisions of the Indenture, withhold from Holders notice of
any continuing Default (except a Default in payment of principal or interest or to deliver amounts
owing upon conversion) if and so long as it determines that withholding notice is in their
interests. The Company is required to file periodic certificates with the Trustee as to the
Company’s compliance with the Indenture and knowledge or status of any Default.



     13. Trustee Dealings With the Company



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



     14. No Recourse Against Others



     No director, officer, employee, stockholder, incorporator or agent of the Company, as such,
will have any liability for any obligations of the Company under the Securities, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Securities by accepting a Security waives and releases all such liability.



     15. 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.



     16. Abbreviations and Definitions



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



A-6









 





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



     17. Guarantees; Reference to Indenture.



     This Security will be entitled to the benefits of the Guarantees made for the benefit of the
Holders. Reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.



     18. Indenture to Control; Governing Law



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



     The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: Mylan Laboratories Inc., 1500 Corporate Drive, Canonsburg,
Pennsylvania 15317, Attention: Kristin Kolesar, Corporate Counsel, Facsimile No. (724) 514-1871,
Telephone No. (724) 514-1871.



A-7









 





ASSIGNMENT FORM




     To assign this Security, fill in the form below:



I or we assign and transfer this Security to



 



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



 



 



 



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




and irrevocably appoint



 




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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 

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






*Signature guaranteed by:




By:                                                             





A-8









 










 




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




A-9









 










CONVERSION NOTICE




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


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




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


 



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



 



 



 



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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 

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






*Signature guaranteed by:




By:                                                            






 




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




A-10









 










FUNDAMENTAL CHANGE PURCHASE NOTICE




To: Mylan Laboratories Inc.




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



	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

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

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranty
	Principal amount to be repurchased
(in an integral multiple of $1,000,
if less than all):	 	 








 




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




A-11









 










SCHEDULE OF EXCHANGES OF SECURITIES




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



	 	 	 	 	 	 	 
	 	 	 	 	Notation Stating	 	 
	 	 	 	 	and Explaining	 	 
	 	 	Authorized	 	Change	 	Principal Amount
	 	 	Signatory of	 	in Principal Amount	 	of this Global
	Date	 	Securities Custodian	 	Recorded	 	Security
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 





A-12









 






Exhibit B




[FORM OF NOTATION OF GUARANTEE]




     Each of the undersigned (collectively, the “Guarantors”) have unconditionally guaranteed,
jointly and severally (such guarantee by each Guarantor being referred to herein as the
“Guarantee”) (i) the due and punctual payment of the principal of and interest on the Securities
when they become due, whether at the Final Maturity Date, a Fundamental Change Purchase Date, by
acceleration or otherwise, the due and punctual payment of interest on the overdue principal and
interest, if any, on the Securities, to the extent lawful, and the due and punctual performance and
observance of all other obligations of the Company to the Holders or the Trustee all in accordance
with the terms set forth in Article 11 of the Indenture and (ii) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.



     No past, present or future shareholder, officer, director, employee or incorporator, as such,
of any of the Guarantors shall have any liability under the Guarantee by reason of such person’s
status as stockholder, officer, director, employee or incorporator. Each Holder of a Security by
accepting a Security waives and releases all such liability. This waiver and release are part of
the consideration for the issuance of the Guarantees.



     Each Holder of a Security by accepting such Security agrees that any Guarantor named below
shall have no further liability with respect to its Guarantee if such Guarantor otherwise ceases to
be liable in respect of its Guarantee in accordance with the terms of the Indenture.



     The Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Securities upon which the Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized signatories.



     Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.



[SIGNATURE PAGE FOLLOWS]




B-1









 








	 	 	 	 	 	 	 
	 	 	 	MILAN HOLDING INC.	 	 
	 	 	 	MYLAN INC.	 	 
	 	 	 	MYLAN TECHNOLOGIES INC.	 	 
	 	 	 	MYLAN INTERNATIONAL HOLDINGS, INC.	 	 
	 	 	 	MYLAN CARIBE, INC.	 	 
	 	 	 	UDL LABORATORIES, INC.	 	 
	 	 	 	BERTEK INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Edward J. Borkowski	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	 	MLRE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Edward J. Borkowski	 	 
	 

	 	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 
	 	 	 	MP AIR INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Edward J. Borkowski	 	 
	 

	 	 	 	Title: President	 	 
	 
	 

	 	MYLAN PHARMACEUTICALS INC.	 	 
	 	 	MYLAN BERTEK PHARMACEUTICALS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Edward J. Borkowski	 	 
	 

	 	 	 	Title: Executive Vice President	 	 






B-2









 






Exhibit C




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY FUTURE GUARANTORS




     SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                     , 200___, among
                     (the “Guaranteeing Subsidiary”), a                      corporation, the Company, the other
Guarantors (as defined in the Indenture referred to herein) and The Bank of New York, as trustee
under the Indenture referred to herein (the “Trustee”).



WITNESSETH




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of March 7, 2007, providing for the issuance of 1.25% Senior Convertible
Notes due 2012 (the “Notes”);



     WHEREAS, the Indenture provides that under the circumstances specified therein that the
Guaranteeing Subsidiary shall fully and unconditionally guarantee the Company’s obligations under
the Notes and the Indenture in accordance with the provisions set forth in Article 11 of the
Indenture; and



     WHEREAS, pursuant to the provisions of Section 10.01 of the Indenture, the parties hereto are
authorized to execute and deliver this Supplemental Indenture.



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the
Company and the other Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:



     1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.



     2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby provides a Guarantee in respect
of the Securities on the terms and subject to the conditions set forth in the Guarantee and in the
Indenture including but not limited to Article 11 thereof.



     3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the Notes or any Guarantee by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and this Guarantee.



     4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE AND THE WITHIN GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.



C-1









 





     6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.



     7. THE TRUSTEE. The Trustee makes no representations as to, and shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of, this Supplemental
Indenture or for or in respect of the recitals contained herein, or the within Guarantee all of
which recitals are made solely by the Guaranteeing Subsidiary and the Company.



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



Dated as of                     , 20__




	 	 	 	 	 	 	 
	 	 	 	[NAME OF
GUARANTEEING
SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	 	[NAME OF OTHER GUARANTORS]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	 	MYLAN LABORATORIES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






C-2









 






	 	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, AS TRUSTEE	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







C-3