EX-4.1



 





Exhibit 4.1




EXECUTION COPY




 





SKYWORKS SOLUTIONS, INC.,




U.S. BANK NATIONAL ASSOCIATION,




AS TRUSTEE




11/4% CONVERTIBLE SUBORDINATED NOTES DUE 2010

and

11/2% CONVERTIBLE SUBORDINATED NOTES DUE 2012




INDENTURE




DATED AS OF MARCH 2, 2007




 






 









 








CROSS-REFERENCE TABLE*




	 	 	 	 
	TIA Indenture Section	 	Section
	Section 310
	(a)(1)
	 	9.9
	 
	(a)(2)
	 	9.9
	 
	(a)(3)
	 	N.A.**
	 
	(a)(4)
	 	N.A.
	 
	(a)(5)
	 	9.9
	 
	(b)
	 	9.8; 9.10
	 
	(c)
	 	N.A.
	Section 311
	(a)
	 	9.13
	 
	(b)
	 	9.13
	 
	(c)
	 	N.A.
	Section 312
	(a)
	 	2.5
	 
	(b)
	 	14.3
	 
	(c)
	 	14.3
	Section 313
	(a)
	 	9.15
	 
	(b)(1)
	 	N.A.
	 
	(b)(2)
	 	9.15
	 
	(c)
	 	9.15; 14.2
	 
	(d)
	 	9.15
	Section 314
	(a)
	 	6.2; 6.3
	 
	(b)
	 	N.A.
	 
	(c)(1)
	 	14.4(a)
	 
	(c)(2)
	 	14.4(a)
	 
	(c)(3)
	 	N.A.
	 
	(d)
	 	N.A.
	 
	(e)
	 	14.4(b)
	 
	(f)
	 	N.A.
	Section 315
	(a)
	 	9.1(a); 9.1(b)(i)
	 
	(b)
	 	9.14; 14.2
	 
	(c)
	 	9.1(a)
	 
	(d)
	 	9.1(b)
	 
	(e)
	 	8.11
	Section 316
	(a) (last sentence)
	 	2.9
	 
	(a)(1)(A)
	 	8.5
	 
	(a)(1)(B)
	 	8.4
	 
	(a)(2)
	 	N.A.
	 
	(b)
	 	8.7
	 
	(c)
	 	14.5
	Section 317
	(a)(1)
	 	8.8
	 
	(a)(2)
	 	8.9
	 
	(b)
	 	2.4
	Section 318
	(a)
	 	14.1








 




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

	 
	**	 	N.A. means Not Applicable.






 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	Definitions and Incorporation By Reference	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1.1.

	 	Definitions.
	 	 	1	 
	SECTION 1.2.

	 	Other Definitions.
	 	 	9	 
	SECTION 1.3.

	 	Trust Indenture Act Provisions
	 	 	10	 
	SECTION 1.4.

	 	Rules of Construction
	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	The Securities	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 2.1.

	 	Form and Dating
	 	 	11	 
	SECTION 2.2.

	 	Execution and Authentication
	 	 	12	 
	SECTION 2.3.

	 	Registrar, Paying Agent and Conversion Agent
	 	 	13	 
	SECTION 2.4.

	 	Paying Agent to Hold Money and Securities in Trust
	 	 	14	 
	SECTION 2.5.

	 	Securityholder Lists
	 	 	14	 
	SECTION 2.6.

	 	Transfer and Exchange
	 	 	14	 
	SECTION 2.7.

	 	Replacement Securities
	 	 	15	 
	SECTION 2.8.

	 	Outstanding Securities
	 	 	16	 
	SECTION 2.9.

	 	Treasury Securities
	 	 	16	 
	SECTION 2.10.

	 	Temporary Securities
	 	 	17	 
	SECTION 2.11.

	 	Cancellation
	 	 	17	 
	SECTION 2.12.

	 	Legend; Additional Transfer and Exchange Requirements
	 	 	17	 
	SECTION 2.13.

	 	CUSIP Numbers
	 	 	23	 
	SECTION 2.14.

	 	Persons Deemed Owners
	 	 	23	 
	SECTION 2.15.

	 	Defaulted Interest
	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	Fundamental Change Repurchase Right	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 3.1.

	 	Purchase of Securities at Option of the Holder upon a Fundamental Change
	 	 	24	 
	SECTION 3.2.

	 	Effect of Fundamental Change Purchase Notice
	 	 	27	 
	SECTION 3.3.

	 	Deposit of Fundamental Change Purchase Price or Option Purchase Price
	 	 	28	 
	SECTION 3.4.

	 	Securities Purchased in Part
	 	 	29	 
	SECTION 3.5.

	 	Repayment to the Company
	 	 	29	 
	SECTION 3.6.

	 	Compliance with Securities Laws upon Purchase of Securities
	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	Conversion	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 4.1.

	 	Conversion Privilege
	 	 	29	 
	SECTION 4.2.

	 	Conversion Procedure
	 	 	30	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 4.3.

	 	Fractional Shares
	 	 	31	 
	SECTION 4.4.

	 	Taxes on Conversion
	 	 	31	 
	SECTION 4.5.

	 	Company to Provide Stock
	 	 	32	 
	SECTION 4.6.

	 	Adjustment of Conversion Rate
	 	 	32	 
	SECTION 4.7.

	 	No Adjustment
	 	 	36	 
	SECTION 4.8.

	 	Other Adjustments
	 	 	37	 
	SECTION 4.9.

	 	Nasdaq Listing Standards
	 	 	37	 
	SECTION 4.10.

	 	Notice of Adjustment
	 	 	37	 
	SECTION 4.11.

	 	Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege
	 	 	38	 
	SECTION 4.12.

	 	Trustee’s Disclaimer
	 	 	39	 
	SECTION 4.13.

	 	Option to Satisfy Conversion Obligation with Cash, Common Stock or Combination of Cash and Common Stock
	 	 	39	 
	SECTION 4.14.

	 	Effect of Conversion; Conversion After Record Date
	 	 	41	 
	SECTION 4.15.

	 	Exchange in Lieu of Conversion
	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	[RESERVED]	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	Covenants	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 6.1.

	 	Payment of Securities
	 	 	42	 
	SECTION 6.2.

	 	Reports and Certain Information
	 	 	43	 
	SECTION 6.3.

	 	Compliance Certificates
	 	 	43	 
	SECTION 6.4.

	 	Maintenance of Corporate Existence
	 	 	43	 
	SECTION 6.5.

	 	Stay, Extension and Usury Laws
	 	 	43	 
	SECTION 6.6.

	 	Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent
	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer or Lease	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 7.1.

	 	Company May Consolidate, etc., Only on Certain Terms
	 	 	44	 
	SECTION 7.2.

	 	Successor Substituted
	 	 	45	 
	SECTION 7.3.

	 	Subsidiary Guarantors
	 	 	45	 
	SECTION 7.4.

	 	Subsidiary Guarantors May Consolidate, etc., on Certain Terms
	 	 	45	 
	SECTION 7.5.

	 	Release of Subsidiary Guarantors
	 	 	46	 
	SECTION 7.6.

	 	Limitation on Liability
	 	 	46	 
	SECTION 7.7.

	 	Successors and Assigns
	 	 	46	 
	SECTION 7.8.

	 	No Waiver
	 	 	46	 
	SECTION 7.9.

	 	Modification
	 	 	46	 
	SECTION 7.10.

	 	Contribution
	 	 	46	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	Default and Remedies	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 8.1.

	 	Events of Default
	 	 	47	 
	SECTION 8.2.

	 	Acceleration
	 	 	48	 
	SECTION 8.3.

	 	Other Remedies
	 	 	49	 
	SECTION 8.4.

	 	Waiver of Defaults and Events of Default
	 	 	49	 
	SECTION 8.5.

	 	Control by Majority
	 	 	49	 
	SECTION 8.6.

	 	Limitations on Suits
	 	 	50	 
	SECTION 8.7.

	 	Rights of Holders to Receive Payment and to Convert
	 	 	50	 
	SECTION 8.8.

	 	Collection Suit by Trustee
	 	 	50	 
	SECTION 8.9.

	 	Trustee May File Proofs of Claim
	 	 	50	 
	SECTION 8.10.

	 	Priorities
	 	 	51	 
	SECTION 8.11.

	 	Undertaking for Costs
	 	 	51	 
	SECTION 8.12.

	 	Delay or Omission Not Waiver
	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	Trustee	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 9.1.

	 	Certain Duties and Responsibilities of Trustee
	 	 	52	 
	SECTION 9.2.

	 	Certain Rights of Trustee
	 	 	53	 
	SECTION 9.3.

	 	Trustee Not Responsible for Recitals or Issuance or Securities
	 	 	54	 
	SECTION 9.4.

	 	May Hold Securities
	 	 	55	 
	SECTION 9.5.

	 	Moneys Held in Trust
	 	 	55	 
	SECTION 9.6.

	 	Compensation and Reimbursement
	 	 	55	 
	SECTION 9.7.

	 	Reliance on Officers’ Certificate
	 	 	56	 
	SECTION 9.8.

	 	Disqualification: Conflicting Interests
	 	 	56	 
	SECTION 9.9.

	 	Corporate Trustee Required; Eligibility
	 	 	56	 
	SECTION 9.10.

	 	Resignation and Removal; Appointment of Successor
	 	 	56	 
	SECTION 9.11.

	 	Acceptance of Appointment By Successor
	 	 	58	 
	SECTION 9.12.

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	58	 
	SECTION 9.13.

	 	Preferential Collection of Claims Against the Company
	 	 	58	 
	SECTION 9.14.

	 	Notice of Defaults
	 	 	59	 
	SECTION 9.15.

	 	Reports by Trustee
	 	 	59	 
	SECTION 9.16.

	 	Preferential Collection of Claims
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	Amendments, Supplements and Waivers	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 10.1.

	 	Without Consent of Holders
	 	 	59	 
	SECTION 10.2.

	 	With Consent of Holders
	 	 	60	 
	SECTION 10.3.

	 	Compliance with Trust Indenture Act
	 	 	62	 
	SECTION 10.4.

	 	Revocation and Effect of Consents
	 	 	62	 
	SECTION 10.5.

	 	Notation on or Exchange of Securities
	 	 	62	 
	SECTION 10.6.

	 	Trustee to Sign Amendments, Etc
	 	 	62	 
	SECTION 10.7.

	 	Effect of Supplemental Indentures
	 	 	62	 






-iii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE XI	 	 	 	 
	 
	 	 	 	 	 	 
	Subordination	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 11.1.

	 	Agreement To Subordinate
	 	 	63	 
	SECTION 11.2.

	 	Liquidation, Dissolution, Bankruptcy
	 	 	63	 
	SECTION 11.3.

	 	Default on Senior Indebtedness of the Company
	 	 	63	 
	SECTION 11.4.

	 	Acceleration of Payment of Securities
	 	 	64	 
	SECTION 11.5.

	 	When Distribution Must Be Paid Over
	 	 	64	 
	SECTION 11.6.

	 	Subrogation
	 	 	64	 
	SECTION 11.7.

	 	Relative Rights
	 	 	64	 
	SECTION 11.8.

	 	Subordination May Not Be Impaired by Company
	 	 	64	 
	SECTION 11.9.

	 	Rights of Trustee and Paying Agent
	 	 	65	 
	SECTION 11.10.

	 	Distribution or Notice to Representative
	 	 	65	 
	SECTION 11.11.	 	Article XI Not To Prevent Events of Default or Limit Right To Accelerate
	 	 	65	 
	SECTION 11.12.

	 	Trust Moneys Not Subordinated
	 	 	65	 
	SECTION 11.13.

	 	Trustee Entitled To Rely
	 	 	65	 
	SECTION 11.14.

	 	Trustee To Effectuate Subordination
	 	 	66	 
	SECTION 11.15.

	 	Trustee Not Fiduciary for Holders of Senior Indebtedness of the Company
	 	 	66	 
	SECTION 11.16.

	 	Reliance by Holders of Senior Indebtedness of the Company on Subordination Provisions
	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE XII	 	 	 	 
	 
	 	 	 	 	 	 
	[RESERVED]	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE XIII	 	 	 	 
	 
	 	 	 	 	 	 
	Satisfaction and Discharge	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 13.1.

	 	Satisfaction and Discharge of the Indenture
	 	 	66	 
	SECTION 13.2.

	 	Repayment to the Company
	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE XIV	 	 	 	 
	 
	 	 	 	 	 	 
	Miscellaneous	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 14.1.

	 	Trust Indenture Act Controls
	 	 	67	 
	SECTION 14.2.

	 	Notices
	 	 	68	 
	SECTION 14.3.

	 	Communications by Holders with Other Holders
	 	 	68	 
	SECTION 14.4.

	 	Certificate and Opinion as to Conditions Precedent
	 	 	68	 
	SECTION 14.5.

	 	Record Date for Vote or Consent of Securityholders
	 	 	69	 
	SECTION 14.6.

	 	Rules by Trustee, Paying Agent, Registrar and Conversion Agent
	 	 	69	 
	SECTION 14.7.

	 	Legal Holidays
	 	 	69	 
	SECTION 14.8.

	 	Governing Law; Jury Trial Waiver
	 	 	70	 
	SECTION 14.9.

	 	No Adverse Interpretation of Other Agreements
	 	 	70	 
	SECTION 14.10.

	 	No Recourse Against Others
	 	 	70	 
	SECTION 14.11.

	 	Successors
	 	 	70	 
	SECTION 14.12.

	 	Multiple Counterparts
	 	 	70	 
	SECTION 14.13.

	 	Separability
	 	 	70	 






-iv-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 14.14.

	 	Calculations in Respect of the Securities
	 	 	70	 
	SECTION 14.15.

	 	Table of Contents, Headings, Etc
	 	 	70	 
	SECTION 14.16.

	 	No Security Interest
	 	 	70	 






	 	 	 
	Exhibit A-1

	 	Form of 2010 Note

	Exhibit A-2

	 	Form of 2012 Note
	Exhibit B

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






-v-









 





     THIS INDENTURE, dated as of March 2, 2007, is between SKYWORKS SOLUTIONS, INC., a Delaware
corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (in such capacity and not in its individual capacity, the
“Trustee”).



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



ARTICLE I




Definitions and Incorporation By Reference




     SECTION 1.1. Definitions.



     “2010 Securities” means the Company’s 1.25% Convertible Subordinated Notes due 2010,
as amended or supplemented from time to time pursuant to the terms of this Indenture, that are
issued under this Indenture.



     “2010 Securities Final Maturity Date” means March 1, 2010.



     “2012 Securities” means the Company’s 1.50% Convertible Subordinated Notes due 2012,
as amended or supplemented from time to time pursuant to the terms of this Indenture, that are
issued under this Indenture.



     “2012 Securities Final Maturity Date” means March 1, 2012.



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



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



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



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



     “Applicable Stock Price” means, with respect to a Conversion Date, the arithmetic
average of the Volume-Weighted Average Prices of the Common Stock (or any security into which the
Common Stock has been converted in connection with a Fundamental Change) for each of the 20
consecutive Trading Days in the Cash Settlement Averaging Period with respect to such Conversion
Date; provided, however, that if, in connection with a Fundamental Change, all



 









 







or a portion of the Common Stock is converted into cash or some other consideration (other
than publicly traded securities), the Applicable Stock Price will be determined based on the face
amount of the cash received or the fair market value of such other consideration received, in each
case per share of Common Stock and on a weighted average basis.



     “Attributable Debt” in respect of a Sale/Leaseback Transaction means, as at the time
of determination, the total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).



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



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



     “Capital Lease Obligation” means an obligation that is required to be classified and
accounted for as a capital lease for financial reporting purposes in accordance with GAAP.



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



     “Cash Settlement Averaging Period” means, in respect of a Conversion Date, the 20
consecutive Trading Day period:




     (a) beginning on the Final Notice Date, with respect to Conversion Notices received
after the Final Notice Date and on or prior to the Trading Day preceding the Final Maturity
Date of the applicable Securities; and




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



     “Certificated Security” means a Security that is in substantially the form attached
hereto as Exhibit A-1 or Exhibit A-2, as applicable, and that does not include the information or
the schedule called for by footnotes 1 and 5 thereof.



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



     “Common Stock” means any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company. Subject to the provisions of Section 4.11, however, shares issuable on conversion
of Securities shall include only shares of the class designated as Common Stock of the Company, par
value $0.25 per share, at the date of this Indenture or shares of any class or classes resulting
from any reclassification or reclassifications thereof and which have no preference in respect of




-2-









 







dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption by the Company;
provided, however, that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.




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



     “Conversion Price” means, at any time and with respect to any Security, an amount
equal to $1,000 divided by the Conversion Rate in effect at such time with respect to such
Security.



     “Conversion Value” means, with respect to each $1,000 principal amount of any
Security, the average of the products for each Trading Day of the applicable Cash Settlement
Averaging Period of (a) the applicable Conversion Rate for such day multiplied by (b) the
Volume-Weighted Average Price of the Common Stock on such Trading Day.



     “Corporate Trust Office” means the office of the Trustee at which at any time the
trust created by this Indenture shall be principally administered, which office at the date of the
execution of this Indenture is located at One Federal Street, 3rd Floor, Boston, Massachusetts,
02110, Attention: Corporate Trust Services, or such other office as the Trustee may designate by
written notice to the Company.



     “Daily Share Amount” means, with respect to each Trading Day of the applicable Cash
Settlement Averaging Period and each $1,000 principal amount of Securities surrendered for
conversion, a number of shares (but in no event less than zero) of Common Stock equal to the
quotient obtained by dividing (a) an amount equal to (i) the product of the Volume-Weighted Average
Price of the Common Stock with respect to such Trading Day and the applicable Conversion Rate in
effect on such Trading Day, less (ii) $1,000, divided by (b) the product of the Volume-Weighted
Average Price of the Common Stock with respect to such Trading Day and 20.



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



     “Designated Senior Indebtedness” with respect to a Person, means any Senior
Indebtedness of such Person which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders thereof are committed to
lend up to, at least $ 10,000,000 and is specifically designated by such Person in the
instrument evidencing or governing such Senior Indebtedness as “Designated Senior Indebtedness” for
purposes of this Indenture.



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



     “Existing Securities” means the Company’s 4.75% Convertible Subordinated Notes due
November 15, 2007 issued pursuant to the terms of an Indenture dated as of November 12, 2002,
between the Company and State Street Bank and Trust Company, as trustee, as amended or supplemented
from time to time.



-3-









 





     “Final Cash Election Notice” means a notice from the Company setting forth the
Company’s election, with respect to any Conversion Notices delivered pursuant to Section
4.2 after the Final Notice Date, to satisfy in Cash 100% or a fixed dollar amount of the
Conversion Obligation or Remaining Conversion Obligation, as applicable, arising as a result of any
such Conversion Notice; provided, that the fixed dollar amount set forth in a Final Cash Election
Notice with respect to Conversion Obligations may be different from the fixed dollar amount set
forth in a Final Cash Election Notice with respect to Remaining Conversion Obligations.



     “Final Maturity Date” means the 2010 Securities Final Maturity Date or the 2012
Securities Final Maturity Date, as applicable.



     “Final Notice Date” means, with respect to any Security, the 23rd Trading Day prior to
the Final Maturity Date with respect to such Security.



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



     “Global Security” means a permanent Global Security that is in substantially the form
attached hereto as Exhibit A-1 or Exhibit A-2, as applicable, and that includes the information and
schedule called for by footnotes 1 and 5 thereof and which is deposited with the Depositary or its
custodian and registered in the name of the Depositary or its nominee.



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



     “Hedging Obligations” of any Person means the obligations of such Person pursuant to
(a) any interest rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement with respect to exposure to interest rates or (b) any foreign exchange contract,
currency swap agreement or other similar agreement with respect to currency values.



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



     “Incur” means issue, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness of a Person existing at the time such
Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Person at the time it becomes a Subsidiary. The term “Incurrence”
when used as a noun shall have a correlative meaning.



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



-4-









 






     (1) the principal in respect of (A) indebtedness of such Person for money borrowed
and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due and payable;




     (2) all Capital Lease Obligations of such Person and all Attributable Debt in respect
of Sale/Leaseback Transactions entered into by such Person;




     (3) all obligations of such Person issued or assumed as the deferred purchase price
of property, all conditional sale obligations of such Person and all obligations of such
Person under any title retention agreement (but excluding any accounts payable or other
liability to trade creditors arising in the ordinary course of business);




     (4) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, bankers’ acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth Business Day following
payment on the letter of credit);




     (5) all obligations of the type referred to in clauses (1) through (4) of other
Persons of which such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee;




     (6) all obligations of the type referred to in clauses (1) through (4) of other
Persons secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being deemed to be the
lesser of the fair market value of such property or assets and the amount of the obligation
so secured; and




     (7) to the extent not otherwise included in this definition, Hedging Obligations of
such Person.



     “Indenture” means this Indenture as amended or supplemented from time to time pursuant
to the terms of this Indenture, including the provisions of the TIA that are explicitly
incorporated in this Indenture by reference to the TIA.



     “Initial Purchaser” means Credit Suisse Securities (USA), LLC.



     “Initial Securities” means (a) the 2010 Securities issued on the date hereof in the
aggregate principal amount of $100,000,000, and (b) the 2012 Securities issued on the date hereof
in the aggregate principal amount of $100,000,000, and, in each case, any Securities issued in
replacement thereof.



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



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



     “Issue Date” means March 2, 2007.



-5-









 





     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any conditional sale or other title retention agreement or lease in the nature
thereof).



     “Nasdaq” means the Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital
Market and their respective successors.



     “NYSE” means the New York Stock Exchange and its successors.



     “Obligations” means with respect to any Indebtedness, all obligations for
principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts
payable pursuant to the documentation governing such Indebtedness.



     “Offering Circular” means the Confidential Offering Circular dated February 27,
2007, relating to the Securities.



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



     “Officers’ Certificate” means a certificate signed by at least two Officers of the
Company; provided, however, that for purposes of Section 4.11 and Section 6.3,
“Officers’ Certificate” means a certificate signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company and at least one other Officer of
the Company.



     “Opinion of Counsel” means a written opinion from legal counsel containing, as
applicable, the information specified in Section 14.4. The counsel may be an employee of
or counsel to the Company who is reasonably satisfactory to the Trustee.



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



     “Purchase Agreement” means that certain Purchase Agreement, dated February 27, 2007,
among the Company and the Initial Purchaser.



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



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



     “Representative” means, with respect to a Person, any trustee, agent or representative
(if any) for an issue of Senior Indebtedness of such Person.



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



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



-6-









 





     “Restricted Security” means a Security required to bear the Restricted Legend called
for by footnotes 2 and 3 to the form of Security set forth in Exhibit A-1 or Exhibit A-2 of this
Indenture.



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



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



     “Sale/Leaseback Transaction” means an arrangement relating to property owned by the
Company or a Subsidiary on the Issue Date or thereafter acquired by the Company or a Subsidiary
whereby the Company or a Subsidiary transfers such property to a Person and the Company or a
Subsidiary leases it from such Person.



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



     “Security” or “Securities” means the 2010 Securities and the 2012 Securities.



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



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



     “Senior Indebtedness” means, with respect to any Person:




     (1) Indebtedness of such Person, whether outstanding on the Issue Date or thereafter
Incurred; and




     (2) all other Obligations of such Person (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to such Person whether
or not post-filing interest is allowed in such proceeding) in respect of Indebtedness
described in clause (1) above,


unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such Indebtedness or other
Obligations are not superior in right of payment to the Securities or the Subsidiary Guarantee of
such Person, as the case may be; provided, however, that Senior Indebtedness of
such Person shall not include:





     (A) any obligation of such Person to any Subsidiary of such Person;




     (B) any liability for Federal, state, local or other taxes owed or owing by such
Person;




     (C) any accounts payable or other liability to trade creditors arising in the
ordinary course of business; or




     (D) with respect to the Company, the Existing Notes.



-7-









 





     “Series” means, with respect to the Securities, either the 2010 Securities or the 2012
Securities.



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



     “Subsidiary” means, in respect of any Person, any corporation, association,
partnership or other business entity of which more than 50% of the outstanding voting stock (as
defined in Section 3.1) or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers, general partners or trustees thereof, or persons performing similar functions, is at the
time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or
more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.



     “Subsidiary Guarantor” means at any time each Subsidiary that has become a Subsidiary
Guarantor pursuant to Section 7.3 of this Indenture, in each case so long as it remains a
Subsidiary Guarantor.



     “TIA” means the United States Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder as in effect on the date of this Indenture; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, then “TIA” means, to the
extent required by such amendment, the Trust Indenture Act of 1939 as so amended.



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



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



     “Trustee” means U.S. Bank National Association in its capacity as trustee hereunder,
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor Trustee.



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



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



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



-8-









 







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



     SECTION 1.2. Other Definitions.



	 	 	 
	Term	 	Section
	“Additional Securities”
	 	2.2(d)
	“Agent Members”
	 	2.1(d)
	“Aggregate Amount”
	 	4.6(e)
	“Bankruptcy Law”
	 	8.1
	“Blockage Notice”
	 	11.3
	“Company Order”
	 	2.2(d)
	“Conversion Agent”
	 	2.3
	“Conversion Date”
	 	4.2(a)
	“Conversion Notice”
	 	4.2(a)
	“Conversion Obligation”
	 	4.13(a)
	“Conversion Rate”
	 	4.1(a)
	“Current Market Price”
	 	4.6(f)
	“Custodian”
	 	8.1
	“Debt Security”
	 	7.3
	“Depositary”
	 	2.1(b)
	“Effective Date”
	 	4.1(b)
	“Event of Default”
	 	8.1
	““ex” date”
	 	4.6(f)
	“Existing Shareholders”
	 	3.1(a)
	“Expiration Date”
	 	4.6(e)
	“Expiration Time”
	 	4.6(e)
	“Financial Institution”
	 	4.15(a)
	“Fundamental Change”
	 	3.1(a)
	“Fundamental Change Company Notice”
	 	3.1(b)
	“Fundamental Change Purchase Date”
	 	3.1(a)
	“Fundamental Change Purchase Notice”
	 	3.1(c)
	“Fundamental Change Purchase Price”
	 	3.1(a)
	“Legal Holiday”
	 	14.7
	“Net Share Settlement Election”
	 	4.1(c)
	“Nonpayment Default”
	 	11.3
	“Notice of Default”
	 	8.1
	“Paying Agent”
	 	2.3
	“Payment Blockage Period”
	 	11.3
	“Payment Default”
	 	11.3
	“Purchased Shares”
	 	4.6(e)
	“Register”
	 	2.3
	“Registrar”
	 	2.3






-9-









 






	 	 	 
	Term	 	Section
	“Remaining Conversion Obligation”
	 	4.1(c)
	“Restricted Legend”
	 	2.12(f)
	“Rule 144A Information”
	 	6.2(b)
	“Settlement Notice Period”
	 	4.13(a)
	“Share Settlement Election”
	 	4.1(c)
	“Specified Cash Amount”
	 	4.13(a)
	“Specified Remaining Cash Amount”
	 	4.13(b)
	“Stock Price”
	 	4.1(b)
	“Subsidiary Guarantee”
	 	7.3
	“Traded Common Stock”
	 	3.1(a)
	“Underlying Shares”
	 	4.6(b)






     SECTION 1.3. Trust Indenture Act Provisions. Whenever this Indenture refers to a
provision of the TIA, that provision is incorporated by reference in and made a part of this
Indenture. The Indenture shall also include those provisions of the TIA required to be included
herein by the provisions of the TIA. The following TIA terms used in this Indenture have the
following meanings:




     “Commission” means the SEC;




     “indenture securities” means the Securities;




     “indenture security Holder” means a Securityholder;




     “indenture to be qualified” means this Indenture;




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




     “obligor” on the indenture securities means the Company and any successor
obligor on the Securities.



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



     SECTION 1.4. Rules of Construction. Unless the context otherwise requires:




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




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




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




     (d) provisions apply to successive events and transactions;




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




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



-10-









 






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




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




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




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




     (k) “or” is not exclusive; and




     (l) “including” means including without limitation.



ARTICLE II




The Securities




     SECTION 2.1. Form and Dating. (a) The 2010 Securities and the corresponding
Trustee’s certificate of authentication shall be substantially in the respective forms set forth in
Exhibit A-1, which Exhibit is incorporated in and made part of this Indenture. The 2012 Securities
and the corresponding Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A-2, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required by law, exchange
rule, Applicable Procedures or usage. The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication.



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



     (b) Restricted Global Securities. All of the Securities shall be issued initially in
the form of one or more Restricted Global Securities, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Securities Custodian, as custodian for
the depositary, The Depository Trust Company (such depositary, or any successor thereto, being
hereinafter referred to as the “Depositary”), and registered in the name of its nominee,
Cede & Co., or as otherwise instructed by the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the
Restricted Global Securities may from time to time be increased or decreased by adjustments made on
the records of the Securities Custodian and the Depositary as hereinafter provided, subject in each
case to compliance with the Applicable Procedures and the provisions of this Indenture.



     (c) Global Securities In General. Each Global Security shall represent such of the
out-standing Securities as shall be specified therein and each shall provide that it shall
represent the




-11-









 




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




     The Company shall issue and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver in accordance with Section
2.2, initially Global Securities that (i) shall be registered in the name of Cede & Co. or as
otherwise instructed by the Depositary, (ii) shall be delivered by the Trustee to the Depositary or
to the Securities Custodian pursuant to the Depositary’s instructions and (iii) shall bear legends
required for Global Securities as set forth in Exhibit A-1 or Exhibit A-2 hereto, as applicable.



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



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



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



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



-12-









 





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



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



     (d) The Trustee shall initially authenticate and make available for delivery (i) 2010
Securities for original issue in the aggregate principal amount of up to $100,000,000 upon receipt
of a written order or orders of the Company signed by an Officer of the Company (a “Company
Order”) and (ii) 2012 Securities for original issue in the aggregate principal amount of up to
$100,000,000 upon receipt of a Company Order. The Trustee shall authenticate additional Securities
(the “Additional Securities”) thereafter in unlimited aggregate principal amount (so long
as permitted by the terms of this Indenture) for original issue upon a Company Order of the Company
in aggregate principal amount as specified in such order. Each such Company Order shall specify
the amount of Securities to be authenticated and the date on which the Securities are to be
authenticated. Such Additional Securities shall have identical terms to the applicable Initial
Securities except for issuance dates and prices and with respect to interest accruing prior to
their date of issuance, and will constitute the same series as the applicable Initial Securities
for all purposes hereunder, including waivers, amendments and offers to purchase. At the option of
the Company, Additional Securities may have the same CUSIP number as the applicable Initial
Securities; provided that if any Additional Securities are issued at a price that causes such
Additional Securities to have “original issue discount” within the meaning of Section 1273 of the
United States Internal Revenue Code of 1986, as amended, such Additional Securities shall not have
the same CUSIP number as the applicable Initial Securities.



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



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



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



     The Company may have one or more co-registrars, one or more additional paying agents, and one
or more additional conversion agents. The term “Registrar” includes any co-registrar, including
any named pursuant to Section 6.6. The term “Paying Agent” includes any additional paying
agent, including any named pursuant to Section 6.6. The term “Conversion Agent” includes
any additional conversion agent, including any named pursuant to Section 6.6.



-13-









 





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



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



     SECTION 2.4. Paying Agent to Hold Money and Securities in Trust. Prior to 10:00 a.m.,
New York City time, on each due date of payments in respect of, or delivery of Cash, shares of
Common Stock or a combination of Cash and shares of Common Stock, as applicable and as provided
herein, upon conversion of, such Security, the Company shall deposit with the Paying Agent Cash (in
immediately available funds if deposited on the due date) or with the Conversion Agent Cash or such
number of shares of Common Stock or other consideration sufficient to make such payments or
deliveries when so becoming due. The Company shall require each Paying Agent or Conversion Agent,
as applicable (other than the Trustee), to agree in writing that such Agent shall hold in trust for
the benefit of Securityholders or the Trustee all Cash, Common Stock or other consideration, as
applicable, held by such Agent for the making of payments or deliveries in respect of the
Securities and shall notify the Trustee in writing of any default by the Company in making any such
payment or delivery. If the Company or an Affiliate of the Company acts as Paying Agent or
Conversion Agent, as applicable, it shall segregate the Cash, Common Stock and other consideration,
as applicable, held by it as Paying Agent or Conversion Agent, as applicable, and hold it as a
separate trust fund.



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



     SECTION 2.5. Securityholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of the
Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on
or before each Interest Payment Date, and at such other times as the Trustee may request in
writing, a list of the names and addresses of the Securityholders in such form and as of such date
as the Trustee may reasonably request.



     SECTION 2.6. Transfer and Exchange. (a) Subject to compliance with any applicable
additional requirements contained in Section 2.12, when a Security is presented to a
Registrar with a request to register a transfer thereof or to exchange such Security for an equal
principal amount of Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall, if such Security is a Certificated
Security, be duly endorsed or accompanied by an assignment form, in the form included in Exhibit
A-1 or Exhibit A-2 attached hereto, as applicable, and, if applicable, a transfer certificate, in
the form included in



-14-









 







Exhibit B attached hereto, and in form reasonably satisfactory to the Registrar duly executed
by the Holder thereof or its attorney duly authorized in writing. To permit registration of
transfers and exchanges, upon surrender of any Security for registration of transfer or exchange at
an office or agency maintained pursuant to Section 2.3, the Company shall execute and the
Trustee shall, upon receipt of a Company Order (which may be a standing order), authenticate
Securities of a like aggregate principal amount at the Registrar’s request. Any exchange or
transfer shall be without charge, except that the Company or the Registrar may require payment of a
sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in
relation thereto, other than exchanges pursuant to Section 2.10, Section 10.5,
Article III or Article IV, in each case, not involving any transfer.



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



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



     (b) Any Registrar appointed pursuant to Section 2.3 or Section 6.6 hereof
shall provide to the Trustee such information as the Trustee may reasonably request in connection
with the delivery by such Registrar of Securities upon transfer or exchange of Securities.



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



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



     SECTION 2.7. Replacement Securities. If (a) any mutilated security is surrendered to
the Company, a Registrar or the Trustee, or (b) the Company, the Registrar and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Security, and, in either
case, there is delivered to the Company, the Registrar and the Trustee such security or indemnity
as shall be reasonably required by them to save each of them harmless, then, in the absence of
notice to the Company, such Registrar or the Trustee that such Security has been acquired by a bona
fide or protected purchaser, the Company shall issue, and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly, and which may be a standing order),
authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding.



-15-









 





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



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



     Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued and outstanding hereunder.



     The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.



     SECTION 2.8. Outstanding Securities. Securities outstanding at any time are all
Securities authenticated by the Trustee, except for those canceled by it, those paid or repurchased
pursuant to Section 2.7 or Article III, those converted pursuant to Article IV, those
delivered to it for cancellation and those described in this Section 2.8 as not
outstanding.



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



     If the Paying Agent holds, in accordance with the terms of this Indenture, prior to 10:00
a.m., New York City time, on the Final Maturity Date or on a Fundamental Change Purchase Date, as
the case may be, Cash sufficient to pay all Initial Securities and all Additional Securities then
payable and the Paying Agent is not prohibited from paying such money to the Holders on such date
pursuant to the terms of this Indenture, then on and after such Final Maturity Date or Fundamental
Change Purchase Date, as the case may be, such Securities shall cease to be outstanding and
interest on such Securities shall cease to accrue.



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



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



     SECTION 2.9. Treasury Securities. In determining whether the Holders of the required
principal amount of Securities have given or concurred in any notice, request, demand,
authorization, direction, waiver or consent, Securities owned by the Company or any other obligor
on the Securities or by any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be outstanding for such purposes, except that, for purposes of determining



-16-









 







whether the Trustee shall be protected in relying on any such notice, request, demand,
authorization, direction, waiver or consent, only Securities which a Trust Officer actually knows
are so owned shall be so disregarded. Securities so owned which have been pledged in good faith
shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to the Securities and that the pledgee is not, and is not
acting on the behalf of, the Company or any other obligor on the Securities or any Affiliate of the
Company or of such other obligor.



     SECTION 2.10. Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee
shall authenticate and deliver, temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company reasonably considers
appropriate for temporary Securities. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such purpose pursuant to
Section 2.3, without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly and which may be a standing order),
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities.



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



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



     SECTION 2.12. Legend; Additional Transfer and Exchange Requirements.



     (a) Transfer and Exchange of Global Securities. (i) Certificated Securities shall
be issued in exchange for interests in the Global Securities only (x) if the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for the Global Securities or
if it at any time ceases to be a “clearing agency” registered under the Exchange Act, if so
required by applicable law or regulation, and a successor Depositary is not appointed by the
Company within 90 days of such notice or (y) if an Event of Default has occurred and is continuing,
each of clauses (x) and (y) in accordance with the Applicable Procedures. In any such case, the
Company shall execute, and the Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), authenticate and deliver Certificated Securities in an aggregate
principal amount equal to the principal amount of such Global Securities in exchange therefor.
Only Restricted Certificated Securities shall be issued in exchange for beneficial interests in
Restricted Global Securities, and only Unrestricted Certificated Securities shall be issued in
exchange for beneficial interests in Unrestricted Global Securities. Certificated Securities
issued in exchange for



-17-









 







beneficial interests in Global Securities shall be registered in such names and shall be in
such authorized denominations as the Depositary, pursuant to instructions from its Agent Members or
otherwise in accordance with the Applicable Procedures, shall instruct the Trustee. The Trustee
shall deliver or cause to be delivered such Certificated Securities to the Persons in whose name
such Securities are so registered. Such exchange shall be effected in accordance with the
Applicable Procedures. In the event that the Certificated Securities are not issued to each such
beneficial owner promptly after the Registrar has received a request from the Depositary to issue
such Certificated Securities, the Company expressly acknowledges, with respect to the right of any
Holder to pursue a remedy pursuant to Section 8.6 or 8.7 hereof, the right of any
beneficial holder of Securities to pursue such remedy with respect to the portion of the Global
Security that represents such Beneficial Owner’s Securities as if such Certificated Securities had
been issued.



     (ii) Notwithstanding any other provisions of this Indenture other than the provisions set forth
in Section 2.12(a)(i), a Global Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.



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




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




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


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





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




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




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




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



-18-









 






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



     (c) Transfer of a Beneficial Interest in a Restricted Global Security for a Beneficial
Interest in an Unrestricted Global Security. After the Securities are no longer Restricted
Securities, any person having a beneficial interest in a Restricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest to a Person who is
required or permitted to take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. Upon receipt by the Trustee of written instructions, or such other
form of instructions as is customary for the Depositary, from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Restricted Global Security and the following
additional information and documents in such form as is customary for the Depositary from the
Depositary or its nominee on behalf of the Person having such beneficial interest in the Restricted
Global Security (all of which may be submitted by facsimile or electronically):




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




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


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




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



-19-









 







person having such beneficial interest in the Unrestricted Global Security (all of which may
be submitted by facsimile or electronically):




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




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




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




     (iv) a certification (in substantially the form set forth in Exhibit B) to the effect
that such beneficial interest is being transferred to the Company or a Subsidiary of the
Company,


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




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




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




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



-20-









 




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





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




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




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




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




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




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




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




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




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




     (1) if such Unrestricted Certificated Security is being transferred to a
person the Holder reasonably believes is a QIB (which, in the case of an ex-



-21-









 







change, shall be such Holder) in accordance with Rule 144A, a certification to
that effect from such Holder (in substantially the form set forth in Exhibit B);




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




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




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



     (f) Legends. (i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Global Security and Certificated Security (and all Securities issued in exchange
therefor or upon registration of transfer or replacement thereof) shall bear a legend in
substantially the form called for by footnote 2 to Exhibit A-1 or Exhibit A-2 attached hereto, as
applicable (the “Restricted Legend”), for so long as it is required by this Indenture to
bear such legend.



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




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




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


If the Applicable Procedures so require, prior to the removal of any restrictive legend at the end
of the holding period applicable to sales of the Securities under Rule 144(k) of the Securities
Act, such requesting Holder shall deliver an Opinion of Counsel in form reasonably acceptable to
the


-22-









 






Company to the effect that the restrictions on transfer contained herein and the restrictive legend
are no longer required in order to maintain compliance with the Securities Act.




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



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



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



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



     SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use one or
more “CUSIP,” “ISIN” or other similar numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP,” “ISIN” or other similar numbers in notices of purchase as a convenience to
Holders; provided, however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
purchase and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such purchase shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP,” “ISIN” or
other similar numbers.



     SECTION 2.14. Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the person in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of, Fundamental Change Purchase Price, and interest on
the Security, for the purpose of receiving Common Stock or Cash and for all other purposes,
including, for purposes of giving notices hereunder, whatsoever, whether or not such Security is
overdue, and none of the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. The registered Holder of a Global Security may grant proxies
and otherwise authorize any person, including Agent Members and persons that may hold interests
through Agent Members, to take any action that a Holder is entitled to take under this Indenture or
the Securities.



     SECTION 2.15. Defaulted Interest. If the Company defaults on a payment of interest on
the Securities, it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof, to the Persons who
are Holders on a subsequent special record date, which date shall be at least five Business Days
prior



-23-









 







to the payment date. The Company shall fix such special record date and payment date in a
reasonable manner. At least 10 days before such special record date, the Company shall mail to
each Holder a notice that states the special record date, the payment date and the amount of
defaulted interest, and interest payable on defaulted interest, if any, to be paid. The Company
may make payment of any defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Securities may be listed and,
upon such notice as may be required by such exchange.



ARTICLE III




Fundamental Change Repurchase Right




     SECTION 3.1. Purchase of Securities at Option of the Holder upon a Fundamental Change.
(a) In the event a Fundamental Change shall occur at any time when any Securities remain
outstanding, the Securities shall be purchased by the Company, at the option of any Holder thereof,
in accordance with the provisions of paragraph 5 of the Securities on a date specified by the
Company (the “Fundamental Change Purchase Date”) that is not less than 15 nor more than 45
Business Days after the date the Company mails the Fundamental Change Company Notice pursuant to
Section 3.1(b), at a purchase price in Cash equal to 100% of the principal amount of the
Securities tendered for purchase, plus accrued and unpaid interest (including Additional Interest,
if any) to, but not including, the Fundamental Change Purchase Date (the “Fundamental Change
Purchase Price”), subject to satisfaction by or on behalf of any Holder of the requirements set
forth in Section 3.1(c).



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




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




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



-24-









 






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



     Notwithstanding anything to the contrary set forth in this Section 3.1, a merger or
consolidation shall be deemed not to constitute a Fundamental Change if at least 90% of the
consideration (excluding Cash payments for fractional shares and Cash payments pursuant to
dissenters’ appraisal rights) in the merger or consolidation constituting the Fundamental Change
consists of common stock traded on the Nasdaq, the NYSE or another national securities exchange (or
which shall be so traded when issued or exchanged in connection with such merger or consolidation)
(“Traded Common Stock”) and as a result of such transaction or transactions the Securities
become convertible solely into such Traded Common Stock.



     For purposes of this Section 3.1:




	 	•	 	“person” and “group” shall have the meanings given to them for
purposes of Sections 13(d) and 14(d) of the Exchange Act or any successor provisions,
and the term “group” includes any group acting for the purpose of acquiring, holding
or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act, or any successor provision;
	 
	 	•	 	a “beneficial owner” shall be determined in accordance with Rule 13d-3
under the Exchange Act, as in effect on the date of this Indenture;
	 
	 	•	 	“beneficially own” and “beneficially owned” have meanings
correlative to that of beneficial owner;
	 
	 	•	 	“board of directors” means the board of directors or other governing body
charged with the ultimate management of any person;
	 
	 	•	 	“capital stock” means: (i) in the case of a corporation, corporate stock;
(ii) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(iii) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; or (iv) any other interest or
participation that confers on a person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing person; and
	 
	 	•	 	“voting stock” means any class or classes of capital stock or other
interests then outstanding and normally entitled (without regard to the occurrence of
any contingency) to vote in the election of the board of directors.





     (b) Notice of Fundamental Change. Within 30 Business Days after the effective date of
each Fundamental Change, the Company shall notify the Trustee in writing of the Fundamental Change
Purchase Date and shall mail a written notice of the Fundamental Change (the “Fundamental
Change Company Notice”) to each Holder (and to beneficial owners as required by applicable law)
in accordance with Section 14.2. The notice shall include the form of a Fundamental Change
Purchase Notice to be completed by the Holder and shall state, as applicable:




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



-25-









 






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




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




     (4) the Fundamental Change Purchase Date;




     (5) the Fundamental Change Purchase Price;




     (6) the procedures that the Holder must follow to exercise its Fundamental Change
purchase right under this Section 3.1;




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




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




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




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




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




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




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




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



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



     At the Company’s written request, the Trustee shall give the Fundamental Change Company Notice
on behalf of the Company and at the Company’s expense; provided, however, that the Company makes
such request at least three Business Days (unless a shorter period shall be consented to in
writing by the Trustee) prior to the date by which such Fundamental Change Company Notice must be
given to the Holders in accordance with this Section 3.1(b); provided further, however,
that the text of such notice shall be prepared by the Company.



-26-









 





     (c) Fundamental Change Purchase Notice. A Holder may exercise its right specified in
Section 3.1(a) upon delivery of a written notice (which shall be in substantially the form
included in Exhibit A-1 or Exhibit A-2 hereto, as applicable, and which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any other written form and, in the
case of Global Securities, may be delivered electronically or by other means in accordance with the
Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase
Notice”) to and actually received by a Paying Agent at any time prior to 5:00 p.m., New York
City time, on the Business Day immediately preceding the Fundamental Change Purchase Date. The
Fundamental Change Purchase Notice must state:




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




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




     (3) that such Securities shall be purchased by the Company on the Fundamental Change
Purchase Date pursuant to the terms and conditions specified in paragraph 5 of the
Securities and in this Indenture.



     The delivery of such Security to any Paying Agent (together with all necessary endorsements)
at the office of such Paying Agent shall be a condition to the receipt by the Holder of the
Fundamental Change Purchase Price; provided, however, that such Fundamental Change Purchase Price
shall be paid pursuant to this Section 3.1 only if the Security so delivered to the Paying
Agent shall conform in all material respects to the description thereof in the related Fundamental
Change Purchase Notice.



     The Company shall purchase from the Holder thereof, pursuant to this Section 3.1, a
portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Article III that apply to the purchase of all of a Security also apply
to the purchase of such a portion of such Security.



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 3.1(c) shall have the right
to withdraw such Fundamental Change Purchase Notice at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section 3.2(b).



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



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



     SECTION 3.2. Effect of Fundamental Change Purchase Notice. (a) Upon receipt by any
Paying Agent of a Fundamental Change Purchase Notice, 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 below) thereafter be entitled to receive the



-27-









 







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 (i) the Fundamental
Change Purchase Date (provided such Holder has satisfied the conditions in Section 3.1(c))
with respect to such Security and (ii) the time of delivery of such Security to a Paying Agent by
the Holder thereof in the manner required by Section 3.1(c). A Security in respect of
which a Fundamental Change Purchase Notice has been given by the Holder thereof may not be
converted pursuant to Article IV hereof on or after the date of the delivery of such Fundamental
Change Purchase Notice, unless either (i) such Fundamental Change Purchase Notice has first been
validly withdrawn in accordance with Section 3.2(b); or (ii) there shall be a default in
the payment of the Fundamental Change Purchase Price, provided, that the conversion right with
respect to such Security shall terminate immediately when such default is cured and such Security
is purchased in accordance herewith.



     (b) A Fundamental Change Purchase Notice may be withdrawn by any Holder delivering such
Fundamental Change Purchase Notice upon delivery of a written notice of withdrawal (which may be
delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other written
form and, in the case of Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) to and actually received by Paying Agent at any time
prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental
Change Purchase Date, specifying:




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




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




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



     SECTION 3.3. Deposit of Fundamental Change Purchase Price or Option Purchase Price.
Prior to 10:00 a.m., New York City time, on a Fundamental Change Purchase Date, the Company shall
deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an amount in
Cash (in immediately available funds if deposited on such 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 on that Fundamental Change Purchase Date.



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



-28-









 





     SECTION 3.4. Securities Purchased in Part. Any Certificated Security that is to be
purchased only in part shall be surrendered at the office of a Paying Agent (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
reasonably satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing), and promptly after a Fundamental Change Purchase
Date, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities, of such authorized denomination or
denominations as may be requested by such Holder, in aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so surrendered that is not
purchased.



     SECTION 3.5. Repayment to the Company. To the extent that the aggregate amount of
Cash deposited by the Company pursuant to Section 3.2 exceeds the aggregate Fundamental
Change Purchase Price of the Securities or portions thereof that the Company is obligated to
purchase on the Fundamental Change Purchase Date, then, within one day after the Fundamental Change
Purchase Date, the Paying Agent shall return any such excess Cash to the Company.



     SECTION 3.6. Compliance with Securities Laws upon Purchase of Securities. When
complying with the provisions of Article III (provided that such offer or purchase constitutes an
“issuer tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or purchase), and
subject to any exemptions available under applicable law, the Company shall:




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




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



ARTICLE IV




Conversion




     SECTION 4.1. Conversion Privilege. (a) Subject to and upon compliance with the
provisions of this Article IV and paragraph 6 of the Security, at the option of the Holder thereof,
any Security, in whole or in part, may be converted into Cash, shares of Common Stock or a
combination of Cash and shares of Common Stock, at the Company’s option, at a Conversion Rate (the
“Conversion Rate”), initially equivalent to 105.0696 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment pursuant to Section 4.6, on or prior
to the close of business on the Business Day immediately preceding the applicable Final Maturity
Date. The Securities shall be convertible at any time prior to close of business on the Business
Day immediately preceding the applicable Final Maturity Date.



     (b) If a Holder elects to convert its Securities in connection with a Fundamental Change and
during the period beginning on the date of the applicable Fundamental Change Company Notice and
ending at the close of business on the second Trading Day preceding the applicable Fundamental
Change Purchase Date, then the Conversion Rate of the Securities being converted by such Holder
shall be increased in the manner set forth below; provided that if the Stock Price in such
transaction is greater than $40.00 or less than $7.05 (subject in each case to adjustment in



-29-









 







the same manner as the Stock Prices as described at the end of this Section 4.1(b)),
no increase in the Conversion Rate shall be made. For the avoidance of doubt, the increases
provided for in this Section 4.1(b) shall only be made with respect to the Securities being
converted in connection with such Fundamental Change and shall not be effective as to any
Securities not so converted.



     The increase in the Conversion Rate, expressed as a number of additional shares of the Common
Stock to be received per $1,000 principal amount of Securities, will be determined by the Company
by reference to (i) with respect to the 2010 Securities, the table attached as Schedule A hereto
and (ii) with respect to the 2012 Securities, the table attached as Schedule B hereto, in each case
based on the date the Fundamental Change becomes effective (the “Effective Date”) and the
price paid per share of Common Stock in the corporate transaction that gives rise to the
Fundamental Change (the “Stock Price”); provided that if a Holder of the Common Stock
receives only Cash in such corporate transaction, the Stock Price shall be the Cash amount paid per
share. In all other cases, the Stock Price will be the average of the stock price per share of the
Common Stock (or any security into which the Common Stock has been converted in connection with a
Fundamental Change) on the five consecutive Trading Days beginning on the second Trading Day after
the date on which the Company mailed the Fundamental Change Company Notice pursuant to Section
3.1(b), provided, however, that if, in connection with a Fundamental Change, all or a portion
of the Common Stock is converted into cash or some other consideration (other than publicly traded
securities), the Stock Price will be determined based on the face amount of the cash received or
the fair market value of such other consideration received, in each case per share of Common Stock
and on a weighted average basis; provided further that if the Stock Price is between two Stock
Price amounts in the applicable table or the Effective Date is between two Effective Dates in the
applicable table, the Company shall determine the increased Conversion Rate by a straight-line
interpolation between the Conversion Rates set forth for the higher and lower Stock Price amounts
and the two dates, based on a 365 day year, as applicable. The Stock Prices set forth in the first
column of the table set forth on Schedule A or Schedule B will be adjusted on each occasion when
the Conversion Rate of the applicable Securities is adjusted. The adjusted Stock Prices will equal
the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the
Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The
number of additional shares of Common Stock will be adjusted in the same manner as the Conversion
Rate as set forth in Section 4.6.



     (c) At any time prior to the applicable Maturity Date, the Company may irrevocably elect, with
respect to any Series of Securities, in its sole discretion, to satisfy the Conversion Obligation
for the remaining term of the applicable Series of Securities either (i) in cash for the lesser of
100% of the principal amount of the Securities converted and the Conversion Value of the Securities
converted, with any amount by which such Conversion Value exceeds the principal amount of such
Securities (the “Remaining Conversion Obligation”) to be satisfied in cash, shares of
Common Stock or a combination of Cash and shares of Common Stock, at the Company’s option, (the
“Net Share Settlement Election”) or (ii) only in shares of Common Stock (the “Share
Settlement Election”).



     SECTION 4.2. Conversion Procedure. (a) The right of conversion attaching to any
Security may be exercised at any time during which conversion is permitted in accordance with
Section 4.1(a), (i) if such Security is represented by a Global Security, by book-entry
transfer to the Conversion Agent through the facilities of the Depositary in accordance with the
Applicable Procedures, or (ii) if such Security is represented by a Certificated Security, by
delivery of such Security at the specified office of the Conversion Agent, accompanied, in either
case, by: (1) a



-30-









 







duly signed and completed conversion notice, in the form as set forth on the reverse of
Security attached hereto as Exhibit A-1 or Exhibit A-2, as applicable (a “Conversion
Notice”); (2) if such Certificated Security has been lost, stolen, destroyed or mutilated, a
notice to the Conversion Agent in accordance with Section 2.7 regarding the loss, theft,
destruction or mutilation of the Security; (3) appropriate endorsements and transfer documents if
required by the Conversion Agent; and (4) payment of any tax or duty, in accordance with
Section 4.4, which may be payable in respect of any transfer involving the issue or
delivery of the Common Stock in the name of a Person other than the Holder of the Security. The
date on which the Holder satisfies all of those requirements is the “Conversion Date.” The
Company shall deliver to the Holder through a Conversion Agent Cash and a certificate for the
number of whole shares of Common Stock issuable upon the conversion, as applicable (and Cash in
lieu of any fractional shares pursuant to Section 4.3), (i) if the Company elects to
satisfy the entire Conversion Obligation in shares of Common Stock (other than Cash in lieu of any
fractional shares pursuant to Section 4.3), as soon as practicable on or after the
applicable Conversion Date and (ii) in all other cases, on the Trading Day following the final day
of the applicable Cash Settlement Averaging Period.



     (b) The person in whose name the Security is registered shall be deemed to be a stockholder of
record on the Conversion Date; provided, however, that no surrender of a Security or satisfaction
of the other conditions in Section 4.2(a) on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person or persons entitled to receive
the shares of Common Stock upon such conversion as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall, provided that all such conditions have been
satisfied, be effective to constitute the person or persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; provided further, however,
that such conversion shall be at the Conversion Rate in effect on the date on which all such
conditions have been satisfied and such Security was delivered as if the stock transfer books of
the Company had not been closed. Upon conversion of a Security, such person shall no longer be a
Holder of such Security. No separate payment or adjustment will be made for accrued and unpaid
interest on a converted Security or for dividends or distributions on shares of Common Stock issued
upon conversion of a Security except as provided in Section 4.14.



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



     SECTION 4.3. Fractional Shares. The Company shall not issue fractional shares of
Common Stock upon conversion of Securities and instead shall deliver Cash in an amount equal to the
value of such fraction computed by the Company on the basis of the Closing Sale Price of the Common
Stock on the Trading Day immediately before the Conversion Date.



     SECTION 4.4. Taxes on Conversion. If a Holder converts a Security, the Company shall
pay any documentary, stamp or similar issue or transfer taxes or duties relating to the issuance or
delivery of shares of Common Stock upon exercise of such conversion rights. However, the Holder
shall pay any tax or duty which may be payable relating to any transfer involving the issuance or
delivery of shares of Common Stock in a name other than the Holder’s name. The Conversion Agent
may refuse to deliver the certificate representing shares of Common Stock being issued in a name
other than the Holder’s name until the Conversion Agent receives a sum sufficient to pay any tax or
duties which will be due because the shares are to be issued in a name other than the Holder’s
name. Nothing herein shall preclude any tax withholding required by law or regulation. The
Company may, at its option, set off withholding taxes due with respect to



-31-









 







Securities against payments of Cash and Common Stock on the Securities. In the case of any
such set off against Common Stock delivered upon conversion of the Securities, such Common Stock
shall be valued based on the arithmetic average of the Volume Weighted Average Prices for each
Trading Day in the relevant Cash Settlement Averaging Period.



     SECTION 4.5. Company to Provide Stock. (a) The Company shall, prior to the issuance
of any Securities hereunder, and from time to time as may be necessary, reserve at all times and
keep available, free from preemptive rights, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock deliverable upon conversion of all of the Securities.



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



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



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



     SECTION 4.6. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company as follows:




     (a) In case the Company shall (i) issue shares of its Common Stock as a dividend or
distribution on its Common Stock or (ii) subdivide, combine or reclassify its outstanding
Common Stock, the Conversion Rate in effect immediately prior thereto shall be adjusted so
that the Holder of any Security thereafter surrendered for conversion shall be entitled to
receive that number of shares of Common Stock which it would have been entitled to (without
giving effect to any arrangement pursuant to such dividend, distribution, subdivision,
combination or reclassification not to issue fractional shares of Common Stock) had such
Security been converted immediately prior to the record date of such event or the happening
of such event. An adjustment made pursuant to this subsection (a) shall become effective
immediately upon the issuance in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision, combination or
reclassification.




     (b) In case the Company shall issue rights or warrants to all holders of its Common
Stock entitling them to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or a conversion price per share) less
than the Current Market Price per share (as determined in accordance with subsection (f) of
this Section 4.6) of Common Stock on the record date for such issuance (other than
a distribution of rights pursuant to any then-existing shareholder rights plan), the
Conversion Rate in effect immediately prior to the close of business on the record



-32-









 







date for the issuance shall be increased by multiplying the Conversion Rate in effect
immediately prior to the close of business on such record date by a fraction of which (A)
the numerator shall be the sum of (I) the number of shares of Common Stock outstanding
(excluding shares held in the treasury of the Company) at the close of business on such
record date and (II) the aggregate number of shares (the “Underlying Shares”) of
Common Stock underlying all such issued rights or warrants (whether by exercise,
conversion, exchange or otherwise) and (B) the denominator shall be the sum of (I) number
of shares of Common Stock outstanding (excluding shares held in the treasury of the
Company) at the close of business on such record date and (II) the number of shares of
Common Stock which the aggregate exercise, conversion, exchange or other price at which the
Underlying Shares may be subscribed for or purchased pursuant to such rights or warrants
would purchase at such Current Market Price per share of Common Stock. Such increase shall
become effective immediately prior to the opening of business on the Business Day following
such record date. Such adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective immediately after such record date. To the
extent that such shares of Common Stock (or securities convertible into Common Stock) are
not delivered after the expiration of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of delivery of only the
number of shares of Common Stock (or securities convertible into Common Stock) actually
delivered. If such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if the record date for
the determination of shareholders entitled to receive such rights or warrants had not been
fixed. In determining whether any rights or warrants entitle the holders of Common Stock
to subscribe for or purchase shares of Common Stock at a price less than the Current Market
Price per share of Common Stock and in determining the aggregate offering price of the
total number of shares of Common Stock so offered, there shall be taken into account any
consideration received by the Company for such rights or warrants and any amounts payable
on exercise or conversion thereof.




     (c) In case the Company shall distribute to all holders of its Common Stock any shares
of capital stock of the Company, evidences of indebtedness or other non-Cash assets, or
rights or warrants (excluding (i) dividends, distributions and rights or warrants referred
to in Section 4.6(a) or (b), (ii) distributions referred to in Section
4.6(e) and (iii) the distribution of rights pursuant to a shareholder rights plan for
which provision has been made in accordance with the third paragraph of this Section
4.6(c)), the Conversion Rate shall be increased by multiplying the Conversion Rate in
effect immediately prior to the close of business on the record date for the distribution
by a fraction of which (A) the numerator shall be the Current Market Price per share (as
defined in Section 4.6(f)) of the Common Stock on such record date and (B) the
denominator shall be an amount equal to (I) such Current Market Price per share less (II)
the fair market value on such record date (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and which shall be
evidenced by an Officers’ Certificate delivered to the Trustee) of the portion of the
capital stock, evidences of indebtedness or other non-Cash assets so distributed or of such
rights or warrants applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding at the close of business on the record date);
provided, however, that, in the event the then fair market value (as so determined) of the
portion of the capital stock, evidences of indebtedness or other non-Cash assets so
distributed or of such rights or warrants applicable to one share of Common Stock is



-33-









 







equal to or greater than the Current Market Price per share of the Common Stock on
such record date, then, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion (in addition to
any other consideration payable hereunder upon conversion) the amount of capital stock,
evidences of indebtedness or other non-Cash assets so distributed or of such rights or
warrants such Holder would have received had such Holder converted each Security on such
record date. In no event shall the Conversion Rate be decreased pursuant to this
Section 4.6(c). Such adjustment (if any) shall be made successively whenever any
such distribution is made and shall become effective immediately after such record date.



     In the event that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors of the Company determines the fair
market value of any distribution for purposes of this Section 4.6(c) by reference to the
actual or when issued trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the applicable Current Market Price per share of
Common Stock.



     In lieu of adjusting the Conversion Rate, the Company shall make adequate provisions such
that, upon any conversion of the Securities into Common Stock, to the extent that any new
shareholder rights plan (i.e., poison pill) hereafter implemented by the Company is in effect upon
such conversion, the Holders of Securities will receive, in addition to the Common Stock and other
consideration payable hereunder upon conversion, the rights described in any new rights plan
(whether or not the rights have separated from the Common Stock at the time of conversion), subject
to the limitations set forth in any new rights plan. Any distribution of rights or warrants
pursuant to any new rights plan complying with the requirements set forth in the immediately
preceding sentence of this paragraph shall not constitute a distribution of rights or warrants
pursuant to this Section 4.6(c).




     (d) In case the Company shall dividend or distribute (other than in connection with a
liquidation, dissolution or winding up of the Company) Cash to all holders of Common Stock
(other than a distribution requiring an adjustment to the Conversion Rate pursuant to
Section 4.6(e)), the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the close of business on the record date for
the determination of holders of Common Stock entitled to such dividend or distribution by a
fraction (A) whose numerator shall be the average of the Volume-Weighted Average Prices per
share of Common Stock (or, if such Volume-Weighted Average Prices are not available, the
Closing Sale Prices) for the five consecutive Trading Days ending on the date immediately
preceding the “ex” date (as defined in Section 4.6(f)) for such dividend or
distribution (which average shall be appropriately adjusted by the Board of Directors, in
its good faith determination (which determination shall be described in a resolution of the
Board of Directors), to account for any adjustment, pursuant hereto, to the Conversion Rate
that shall become effective, or any event requiring, pursuant hereto, an adjustment to the
Conversion Rate where the “ex” date of such event occurs, at any time during such five
consecutive Trading Days); and (B) whose denominator shall be an amount equal to (I) such
average Volume-Weighted Average Price (or, if applicable, average Closing Sale Price) per
share of Common Stock, in each case calculated in the same manner as set forth in the
immediately preceding clause (A) less (II) the amount per share of Common Stock of such
dividend or distribution; provided, however, that the Conversion Rate shall not be adjusted
pursuant to this Section 4.6(d) to the extent, and only to the extent, such
adjustment would cause



-34-









 







the Conversion Price to be less than par value of the Common Stock (which minimum
amount shall be appropriately adjusted to reflect stock dividends on, and subdivisions,
combinations or reclassifications of, Common Stock); provided further that, if the
denominator of such fraction shall be equal to or less than zero, the Conversion Rate shall
be instead adjusted so that the Conversion Price is equal to par value of the Common Stock
(as adjusted in accordance with the immediately preceding proviso). An adjustment to the
Conversion Rate pursuant to this Section 4.6(d) shall become effective immediately
prior to the opening of business on the Business Day immediately following such record
date. In no event shall the Conversion Rate be decreased pursuant to this Section
4.6(d).




     (e) In case the Company or any Subsidiary of the Company shall distribute Cash or
other consideration in respect of a tender offer or exchange offer made by the Company or
any Subsidiary of the Company for all or any portion of the Common Stock where the sum of
the aggregate amount of such Cash distributed and the aggregate fair market value (as
determined in good faith by the Board of Directors, whose determination shall be conclusive
and set forth in a resolution of the Board of Directors), as of the Expiration Date (as
defined below), of such other consideration distributed (such sum, the “Aggregate
Amount”) expressed as an amount per share of Common Stock validly tendered or
exchanged, and not withdrawn, pursuant to such tender offer or exchange offer as of the
Expiration Time (as defined below) (such tendered or exchanged shares of Common Stock, the
“Purchased Shares”) exceeds the Current Market Price per share (as determined in
accordance with Section 4.6(f)) of Common Stock on the last date (such last date,
the “Expiration Date”) on which tenders or exchanges could have been made pursuant
to such tender offer or exchange offer (as the same may be amended through the Expiration
Date), then the Conversion Rate shall be increased by multiplying the Conversion Rate in
effect immediately prior to the close of business on the Expiration Date by a fraction (A)
whose numerator is equal to the sum of (I) the Aggregate Amount per share of Common Stock
and (II) the product of (a) the Current Market Price per share of Common Stock (as
determined in accordance with Section 4.6(f)) on the Expiration Date and (b) an
amount equal to the number of shares of Common Stock outstanding as of the last time (the
“Expiration Time”) at which tenders or exchanges could have been made pursuant to
such tender offer or exchange offer (excluding Purchased Shares and shares held at such
time in the treasury of the Company) and (B) whose denominator is equal to the product of
(I) the number of shares of Common Stock outstanding as of the Expiration Time (including
all Purchased Shares but excluding shares held at such time in the treasury of the Company)
and (II) such Current Market Price per share of Common Stock on the Expiration Date. An
increase, if any, to the Conversion Rate pursuant to this Section 4.6(e) shall
become effective immediately prior to the opening of business on the “ex” date. In the
event that the Company or a Subsidiary of the Company is obligated to purchase shares of
Common Stock pursuant to any such tender offer or exchange offer, but the Company or such
Subsidiary is permanently prevented by applicable law from effecting any such purchases, or
all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer or exchange offer
had not been made. If the application of this Section 4.6(e) to any tender offer
or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be
made for such tender offer or exchange offer under this Section 4.6(e).




     (f) For the purpose of making a computation pursuant to this Section 4.6, the
current market price (the “Current Market Price”) on a date of determination shall
mean



-35-









 







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




     (g) In any case in which this Section 4.6 shall require that an adjustment be
made following a record date or Expiration Date, as the case may be, established for
purposes of this Section 4.6, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the certificate
described in Section 4.10) issuing to the Holder of any Security converted after
such record date or Expiration Date the shares of Common Stock and other capital stock of
the Company, evidences of indebtedness or other non-Cash assets or rights or warrants
issuable upon such conversion over and above Cash payable, or the shares of Common Stock
and other capital stock of the Company, evidences of indebtedness or other non-Cash assets
or rights or warrants issuable, upon such conversion only on the basis of the Conversion
Rate prior to adjustment; and, in lieu of the shares, evidences of indebtedness or other
non-Cash assets or rights or warrants the issuance of which, or Cash the payment of which,
is so deferred, the Company shall issue or cause its transfer agents to issue due bills or
other appropriate evidence prepared by the Company of the right to receive such shares or
Cash, as the case may be. If any distribution in respect of which an adjustment to the
Conversion Rate is required to be made as of the record date or Expiration Date therefor is
not thereafter made or paid by the Company for any reason, the Conversion Rate shall be
readjusted to the Conversion Rate which would then be in effect if such record date had not
been fixed or such effective date or Expiration Date had not occurred.



     SECTION 4.7. No Adjustment. No adjustment in the Conversion Rate shall be required
unless the adjustment would result in a change in the Conversion Rate of at least 1%; provided,
however, that any adjustment which by reason of this Section 4.7 is not required to be made
shall be carried forward and taken into account in subsequent adjustments. All calculations under
this Article IV shall be made to the nearest one-thousandth of a cent or to the nearest
one-thousandth of a share, as the case may be.



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



     No adjustment need be made for (i) issuances of Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or the investment or additional optional amounts



-36-









 







thereunder in shares of Common Stock or for a change in the par value or a change to no par
value of the Common Stock or (ii) upon the issuance of any shares of Common Stock or options or
rights to purchase shares of Common Stock pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its subsidiaries.



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



     No adjustment to the Conversion Rate need be made pursuant to Section 4.6 for a
transaction if Holders are to participate in the transaction without conversion on a basis and with
notice that the Board of Directors of the Company determines in good faith to be fair and
appropriate in light of the basis and notice on which holders of Common Stock participate in the
transaction.



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



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



     SECTION 4.8. Other Adjustments. Subject to applicable stock exchange rules and
listing standards, the Company shall be entitled to increase the Conversion Rate by any amount for
a period of at least 20 days if the Company’s Board of Directors determines that such increase
would be in the best interests in the Company, provided the Company has given to Holders at least
15 days’ prior notice, in accordance with Section 14.2, of any such increase in the
Conversion Rate. Subject to applicable stock exchange rules and listing standards, the Company
shall be entitled to increase the Conversion Rate, in addition to the events requiring an increase
in the Conversion Rate pursuant to Section 4.6, as it in its discretion shall determine to
be advisable in order to avoid or diminish any tax to stockholders in connection with any stock
dividends, subdivisions of shares, distributions of rights to purchase stock or securities or
distributions of securities convertible into or exchangeable for stock, or any event treated as
such for tax purposes, hereafter made by the Company to its stockholders.



     SECTION 4.9. Nasdaq Listing Standards. Notwithstanding any other provision of this
Article IV, in the event of any adjustment or increase to the Conversion Rate that would result in
the Securities, in the aggregate, becoming convertible into a number of shares of Common Stock that
exceeds the number permitted by applicable listing standards of the Nasdaq Stock Market, LLC, the
Company shall, at its option, either (i) obtain the approval of its stockholders regarding the
issuance of such Common Stock or (ii) elect to deliver cash in lieu of any shares of Common Stock
otherwise deliverable in excess of the number permitted to be delivered under such rules or listing
standards in accordance with the provisions of this Article IV.



     SECTION 4.10. Notice of Adjustment. Whenever the Conversion Rate or conversion
privilege is adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment in accordance with Section 14.2, and file with the Trustee an Officers’
Certificate briefly stating the Conversion Rate, the facts requiring the adjustment and the manner
of computing it. Unless and until the Trustee shall receive an Officers’ Certificate setting forth
an adjustment of the Conversion Rate, the Trustee may assume without inquiry that the Conversion
Rate has not been adjusted and that the last Conversion Rate of which it has knowledge remains in
effect.



-37-









 





     SECTION 4.11. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege. If (1) there shall occur (a) any reclassification of the Company’s Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination or other transaction for which an adjustment
is provided in Section 4.06); (b) a statutory share exchange, consolidation, merger or
combination involving the Company other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change (other than in par
value, or from par value to no par value, or from no par value to par value, or as a result of a
subdivision or combination) in, outstanding shares of Common Stock; or (c) a sale or conveyance as
an entirety or substantially as an entirety of the property and assets of the Company, directly or
indirectly, to another Person; and (2) pursuant to such reclassification, statutory share exchange,
consolidation, merger, combination, sale or conveyance, holders of outstanding shares of Common
Stock would be entitled to receive stock (other than Common Stock), other securities, other
property, assets or Cash for such shares of Common Stock, then the Company, or such successor or
surviving, purchasing or transferee Person, as the case may be, shall, as a condition precedent to
such reclassification, statutory share exchange, consolidation, merger, combination, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture providing that, at and
after the effective time of such reclassification, statutory share exchange, consolidation, merger,
combination, sale or conveyance, the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of shares of stock and other securities and
property (including Cash) receivable upon such reclassification, statutory share exchange,
consolidation, merger, combination, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security immediately prior to such
reclassification, statutory share exchange, consolidation, merger, combination, sale or conveyance,
assuming that such Holder would not have exercised any rights of election that such Holder would
have had as a holder of Common Stock to select a particular type of consideration; provided,
however, that if the kind or amount of stock, other securities or other property (including Cash)
receivable upon such transaction is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised, then the kind and amount shall be deemed to
be the kind and amount receivable per share of Common Stock by a plurality of the nonselecting
shares of Common Stock; provided, further, that if, pursuant to Section 3.1, the Company
elects that the Securities become convertible solely into Traded Common Stock in a merger or
consolidation in which at least 90% of the consideration is Traded Common Stock (excluding Cash
payments for fractional shares and Cash payments pursuant to dissenter’s appraisal rights), then
each Holder of each Security then outstanding shall have the right to convert such Security into an
amount of shares of Traded Common Stock with a value (based on the Closing Sale Price of the Traded
Common Stock on the effective date of such merger or consolidation) that is equal to the fair
market value of the consideration receivable by a holder of the number of shares of Common Stock
deliverable upon conversion of such Security immediately prior to such merger or consolidation.
Such supplemental indenture shall provide for adjustments of the Conversion Rate which shall be as
nearly equivalent as may be practicable to the adjustments of the Conversion Rate provided for in
this Article IV. If, in the case of any such reclassification, statutory share exchange,
consolidation, merger, combination, sale or conveyance, the stock or other securities and property
(including Cash) receivable thereupon by a holder of Common Stock include shares of stock or other
securities and property of a Person other than the successor or surviving, purchasing or transferee
Person, as the case may be, in such reclassification, statutory share exchange, consolidation,
merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by
such other Person and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors of the Company shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 4.11 shall similarly
apply to successive reclassifications, statutory share



-38-









 







exchanges, consolidations, mergers, combinations, sales and conveyances. The foregoing,
however, shall not in any way affect the right a Holder of a Security may otherwise have pursuant
to Section 4.6(c) to receive rights and warrants in accordance therewith.



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



     SECTION 4.12. Trustee’s Disclaimer. The Trustee shall have no duty to determine when
an adjustment under this Article IV should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness of any such
adjustment set forth in, and shall be protected in relying upon, an Officers’ Certificate,
including the Officers’ Certificate with respect thereto which the Company is obligated to file
with the Trustee pursuant to Section 4.10. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of Securities, and the Trustee
shall not be responsible for the Company’s failure to comply with any provisions of this Article
IV.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.11, but
may accept as conclusive evidence of the correctness thereof, and shall be fully protected in
relying upon, the Officers’ Certificate and Opinion of Counsel with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.11.



     SECTION 4.13. Option to Satisfy Conversion Obligation with Cash, Common Stock or
Combination of Cash and Common Stock. (a) If a Conversion Notice is delivered by a Holder
pursuant to Section 4.2 on or prior to the Final Notice Date and prior to a Net Share
Settlement Election or Share Settlement Election, then the following procedures will apply. The
Company shall notify the presenting Holders through the Trustee (at the sole cost and expense of
the Company) of the method the Company chooses to satisfy its obligation upon a conversion of the
Securities (the “Conversion Obligation”) no later than two Trading Days immediately
following the Conversion Date (such period, the “Settlement Notice Period”). If, with
respect to such Conversion Notice, the Company fails to give the notice described in the preceding
sentence within the prescribed time periods, then the Company shall satisfy its Conversion
Obligation only in shares of Common Stock (and Cash in lieu of fractional shares). If, with
respect to such Conversion Notice, the Company elects to satisfy any portion of its Conversion
Obligation in Cash (the “Specified Cash Amount”), the Company shall specify in such notice
the amount to be satisfied in Cash as either 100% of the Conversion Obligation or a fixed dollar
amount. The Company shall treat all Holders converting on the same Trading Day in the same manner.
The Company shall not have any obligation to satisfy its Conversion Obligations arising on
different Trading Days in the same manner.



     Settlement amounts will be computed by the Company as follows:




     (1) If the Company elects to satisfy the entire Conversion Obligation in Cash, a Cash
amount equal to the product of: (A) the aggregate principal amount of the



-39-









 







Securities to be converted divided by $1,000 multiplied by (B) the applicable
Conversion Rate multiplied by (C) the Applicable Stock Price;




     (2) If the Company elects to satisfy the entire Conversion Obligation in shares of
Common Stock, a number of shares of Common Stock equal to the product of (A) the aggregate
principal amount of the Securities to be converted divided by $1,000 multiplied by (B) the
Conversion Rate applicable to such Securities (with Cash paid for any fractional shares of
Common Stock in accordance with Section 4.3); and




     (3) If the Company elects to satisfy a fixed portion (other than 100%) of the
Conversion Obligation in Cash, an amount, for each $1,000 principal amount of Securities
surrendered for conversion, equal to:




     (A) Cash in the Specified Cash Amount; and




     (B) a number of shares of Common Stock equal to the greater of (i) zero and
(ii) the excess, if any, of the number of shares of Common Stock that would be
issued if the Company elected to satisfy the entire Conversion Obligation in shares
of Common Stock over the number of shares of Common Stock equal to the sum of the
quotients, calculated for each of the 20 consecutive Trading Days of the applicable
Cash Settlement Averaging Period, obtained by dividing (x) the Specified Cash
Amount divided by 20 by (y) the Volume-Weighted Average Price with respect to such
Trading Day; and




     (C) Cash paid for any fractional shares of Common Stock in accordance with
Section 4.3.



     (b) If a Conversion Notice is delivered by a Holder pursuant to Section 4.2 on or
prior to the Final Notice Date and after a Net Share Settlement Election, then the following
procedures will apply. The Company shall notify the Holders through the Trustee (at the sole cost
and expense of the Company) of the method the Company chooses to satisfy the Remaining Conversion
Obligation no later than the end of the Settlement Notice Period. If, with respect to such
Conversion Notice, the Company fails to give the notice described in the preceding sentence within
the Settlement Notice Period, then the Company shall satisfy the Remaining Conversion Obligation
only in shares of Common Stock (and Cash in lieu of fractional shares). If, with respect to such
Conversion Notice, the Company elects to satisfy any portion of the Remaining Conversion Obligation
in Cash (the “Specified Remaining Cash Amount”), the Company shall specify in such notice
the amount to be satisfied in Cash as either 100% of the Remaining Conversion Obligation or a fixed
dollar amount. The Company shall treat all Holders converting on the same Trading Day in the same
manner. The Company shall not have any obligation to satisfy its Remaining Conversion Obligations
arising on different Trading Days in the same manner.



     After a Net Share Settlement Election, the Company shall deliver to Holders, for each $1,000
principal amount of Securities converted after such election, (a) Cash in an amount equal to the
lesser of (i) $1,000 and (ii) the Conversion Value with respect to such Securities and (b) if there
is any Remaining Conversion Obligation with respect to such Securities:




     (1) If the Company elects to satisfy the entire Remaining Conversion Obligation in
Cash, a Cash amount equal to the product of: (A) the sum of the Daily Share Amounts with
respect to the applicable Cash Settlement Averaging Period multiplied by (B) the Applicable
Stock Price;



-40-









 






     (2)
If the Company elects to satisfy the entire Remaining Conversion Obligation in shares of Common Stock, a number of shares of Common Stock equal to the sum of the Daily
Share Amounts with respect to the applicable Cash Settlement Averaging Period (with Cash
paid for any fractional shares of Common Stock in accordance with Section 4.3); and




     (3) If the Company elects to satisfy a fixed portion (other than 100%) of the
Remaining Conversion Obligation in Cash, an amount equal to:




     (A) Cash in the Specified Remaining Cash Amount; and




     (B) a number of shares of Common Stock equal to the greater of (i) zero and
(ii) the excess, if any, of the number of shares of Common Stock that would be
issued if the Company elected to satisfy the entire Remaining Conversion Obligation
in shares of Common Stock over the number of shares of Common Stock equal to the
sum of the quotients, calculated for each of the 20 consecutive Trading Days of the
applicable Cash Settlement Averaging Period, of (x) the Specified Remaining Cash
Amount divided by 20 by (y) the Volume-Weighted Average Price with respect to such
Trading Day; and




     (C) Cash paid for any fractional shares of Common Stock in accordance with
Section 4.3.



     (c) If a Conversion Notice is delivered by a Holder pursuant to Section 4.2 on or
prior to the Final Notice Date and after a Share Settlement Election, the provisions set forth in
Section 4.13(a) that are applicable to the Company’s election to satisfy all of a
Conversion Obligation in shares of Common Stock will apply to such Conversion Notice.



     (d) The provisions set forth in Sections 4.13(a), (b) and (c), as
applicable, shall apply to a Conversion Notice delivered by a Holder pursuant to Section
4.2 after the Final Notice Date; provided, however, that (i) if the Company shall have notified
the Holders through the Trustee (at the sole cost and expense of the Company) of a Final Cash
Election Notice on or prior to the Final Notice Date, then such Final Cash Election Notice shall
apply to each Conversion Notice delivered after the Final Notice Date and (ii) otherwise, the
Company shall be deemed to have elected to satisfy the entire amount of the Conversion Obligation
or Remaining Conversion Obligation, as applicable, in shares of Common Stock (with Cash paid for
any fractional shares of Common Stock in accordance with Section 4.3).



     SECTION 4.14. Effect of Conversion; Conversion After Record Date. Except as provided
in this Section 4.14, a converting Holder of Securities shall not be entitled to receive
any separate Cash payments with respect to accrued and unpaid interest on any such Securities being
converted. By delivery to the Holder of the Cash, shares of Common Stock, combination of Cash and
shares of Common Stock or other consideration issuable or Cash payable upon conversion in
accordance with this Article IV, the Company shall have satisfied its obligations with respect to
the Securities and any accrued and unpaid interest on such Securities will not be paid. If any
Securities are converted after the close of business on an Interest Payment Record Date but prior
to the corresponding Interest Payment Date, the Holder of such Securities as of the close of
business on such Interest Payment Record Date shall receive, on such Interest Payment Date, the
interest payable on such Security on such Interest Payment Date notwithstanding the conversion
thereof; provided, however, each Security surrendered for conversion after the close of business on
an Interest Payment Record Date but prior to the corresponding Interest Payment Date shall be
accompanied by payment from the converting Holder thereof, for the account of the Company, in



-41-









 







Cash, an amount equal to the interest payable on such Security on such Interest Payment Date;
provided further that no such payment need be made (a) if any overdue interest exists at the time
of conversion with respect to such Security, but only to the extent of the amount of such overdue
interest or (b) the Holder surrenders any Securities for conversion after the close of business on
the Interest Payment Record Date relating to the final Interest Payment Date.



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



     SECTION 4.15. Exchange in Lieu of Conversion. (a) In lieu of it obligations pursuant
to Section 4.2, the Company may, at its option, direct the Conversion Agent to surrender,
on or prior to the date of determination of the Applicable Stock Price, Securities tendered for
conversion to a financial institution (the “Financial Institution”) designated by the
Company for exchange in lieu of conversion. On the date of this Indenture, the Company has
designated Credit Suisse Securities (USA) LLC as a Financial Institution. On or after the
applicable direction from the Company to the Conversion Agent, if the Financial Institution accepts
any such Securities surrendered for conversion, it shall deliver to the Conversion Agent, in
exchange for each $1,000 principal amount of such Securities, the amount of Cash and shares of
Common Stock that the Company would otherwise be obligated to deliver under Section 4.13.



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



ARTICLE V




[RESERVED]




ARTICLE VI




Covenants




     SECTION 6.1. Payment of Securities. The Company shall promptly make all payments in
respect of the Securities on the dates and in the manner provided in the Securities and this
Indenture. The principal amount and Fundamental Change Purchase Price and accrued and unpaid
interest shall be considered paid on the date it is due if the Paying Agent holds by 10:00 a.m.,
New York City time, on such date, in accordance with this Indenture, Cash designated and sufficient
for the payment of all such amounts then due. The Company shall, to the fullest extent permitted
by law, pay interest on overdue principal and overdue installments of interest at the rate borne by
the Securities per annum. Except as otherwise specified, all references in this Indenture or the
Securities to interest shall be deemed to include Additional Interest, if any, payable pursuant to
the Registration Rights Agreement.



-42-









 





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



     SECTION 6.2. Reports and Certain Information. (a) The Company shall file with the
Trustee, within 15 days after it files them with the SEC, copies of its annual report and the
information, documents and other reports which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Company shall comply with the provisions
of TIA Section 314(a), whether or not the Company is required to file reports with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act. Notwithstanding anything to the contrary herein, the
Trustee shall have no duty to review such documents for purposes of determining compliance with any
provisions of this Indenture or any applicable law.



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



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



     SECTION 6.3. Compliance Certificates. The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an
Officers’ Certificate signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company and at least one other Officer of the Company, as to
his or her knowledge of the Company’s compliance with all terms, conditions and covenants under
this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status
thereof of which he or she may have knowledge.



     SECTION 6.4. Maintenance of Corporate Existence. Subject to Article VII, the Company
shall do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence or, following any consolidation, merger, conveyance, transfer or lease in
accordance with Section 7.1, its legal existence as a Person permitted to be the resulting,
surviving or transferee Person in accordance with Section 7.1.



     SECTION 6.5. Stay, Extension and Usury Laws. The Company covenants, to the extent it
may lawfully do so, that it shall not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of the principal amount or
Fundamental Change Purchase Price in respect of Securities, or any interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture, and the Company, to the extent it may lawfully
do so, hereby expressly waives all benefit or advantage of any such law and covenants



-43-









 







that it shall not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee or any Agent, but shall suffer and permit the execution of
every such power as though no such law had been enacted.



     SECTION 6.6. Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and
Conversion Agent. The Company shall maintain an office or agency of the Trustee, Registrar,
Paying Agent and Conversion Agent in the United States where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of transfer,
exchange, purchase or conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company hereby designates the Corporate Trust
Office as one such office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the location, of any
such office or agency (other than a change in the location of the Corporate Trust Office of the
Trustee). If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in Section 14.2.



ARTICLE VII




Consolidation, Merger, Conveyance, Transfer or Lease




     SECTION 7.1. Company May Consolidate, etc., Only on Certain Terms. The Company shall
not, without the consent of the Holders, consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of the properties and assets of the Company and its
Subsidiaries, taken as a whole, to any successor Person, unless:




     (1) either:




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




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




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




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



     Notwithstanding the foregoing, the Company may transfer all or substantially all of its assets
to a wholly owned Subsidiary without such Subsidiary assuming the obligations of the Company under
the Securities and this Indenture, provided that the Company shall not




-44-









 




permit such Subsidiary to issue Debt Securities or guarantee the Debt Securities of the
Company unless (i) such Subsidiary shall become a Subsidiary Guarantor pursuant to Section
7.3, (ii) such Subsidiary is organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia, (iii) no Default or Event of Default
shall have occurred and be continuing and (iv) the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel (upon which the Trustee may conclusively rely),
each stating that the Company has complied with this Article VII and that all conditions precedent
herein provided for relating to such issuance and guarantee have been complied with.




     SECTION 7.2. Successor Substituted. Upon any consolidation of the Company with, or
merger of the Company into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance with Section
7.1, the successor Person formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.



     SECTION 7.3. Subsidiary Guarantors. If any Subsidiary of the Company to which the
Company or a Subsidiary Guarantor has transferred all or substantially all of its assets after the
date hereof shall (i) guarantee any obligation of the Company evidenced by bonds, debentures, notes
or other similar instruments, including obligations incurred in connection with the acquisition of
property, assets or businesses by the Company (each such obligation a “Debt Security”) or
(ii) issue Debt Securities, the Company shall (A) cause such Subsidiary concurrently to become a
Subsidiary Guarantor by executing and delivering to the Trustee a supplemental indenture pursuant
to which such Subsidiary shall unconditionally guarantee (a “Subsidiary Guarantee”) all of
the Company’s obligations under the Securities and this Indenture on a subordinated unsecured
basis, on terms substantially consistent with guarantees of substantially similar debt obligations,
and, in the case of a Subsidiary referred to above in (i), to the same extent as such Subsidiary
guaranteed such other Debt Securities, in each case subordinated to the Senior Indebtedness of the
applicable Subsidiary Guarantee on terms substantially similar to those set forth in Article XI and
(B) cause an Opinion of Counsel to be delivered to the Trustee to the effect that such supplemental
indenture has been duly authorized and executed by each such Person and constitutes the valid,
binding and enforceable obligation of each such Person (subject to customary exceptions concerning
creditors’ rights and equitable principles) and that such Subsidiary Guarantee is upon such terms
and in such form as is required by this Article VII.



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



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



     SECTION 7.4. Subsidiary Guarantors May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any consolidation or merger
of



-45-









 







any Subsidiary Guarantor with or into the Company or any other Subsidiary Guarantor or shall
prevent any sale or conveyance of the property of any Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or any other Subsidiary Guarantor.



     SECTION 7.5.  Release of Subsidiary Guarantors. If (a) (i) any Subsidiary Guarantor
sells or otherwise disposes of all or substantially all of its assets (by way of merger,
consolidation or otherwise) to the Company or a Subsidiary of the Company and, if the acquiring
Person is a Subsidiary of the Company, such subsidiary shall provide a Subsidiary Guarantee on the
terms set forth in Section 7.3, (ii) in the case of a Subsidiary referred to in Section
7.3(i), such Subsidiary is no longer a guarantor of any Debt Securities of the Company, or
(iii) in the case of a Subsidiary referred to in Section 7.3(ii), such Subsidiary is no
longer an issuer of any Debt Securities and (b) in any such case, the Company shall deliver to the
Trustee an Officers’ Certificate certifying to that effect as of the date of such Officers’
Certificate, then automatically, without the requirement of any further action by the Company, such
Subsidiary or the Trustee, such Subsidiary shall cease to be a Subsidiary Guarantor hereunder. The
Trustee shall, at the Company’s expense, execute and deliver such instruments as the Company may
reasonably request to evidence such termination.



     SECTION 7.6. Limitation on Liability. Any term or provision of this Indenture to the
contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by
any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.



     SECTION 7.7. Successors and Assigns. This Article VII shall be binding upon each
Subsidiary Guarantor and its successors and assigns and shall enure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that
party in this Indenture and in the Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this Indenture.



     SECTION 7.8. No Waiver. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article VII shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article VII at law, in equity, by
statute or otherwise.



     SECTION 7.9. Modification. No modification, amendment or waiver of any provision of
this Article VII, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall in
any event be effective unless the same shall be in writing and signed by the Trustee, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same, similar or other
circumstances.



     SECTION 7.10. Contribution. Each Subsidiary Guarantor that makes a payment under its
Subsidiary Guarantee shall be entitled upon such payment under this Indenture to a contribution
from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s
pro rata portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.



-46-









 





ARTICLE VIII




Default and Remedies




     SECTION 8.1. Events of Default. An “Event of Default” with respect to either Series
of Securities shall occur if:




     (1) the Company defaults in the payment of any principal of any of the Securities of
such Series when the same becomes due and payable (whether at maturity, on a Fundamental
Change Purchase Date or otherwise and whether or not prohibited by the subordination
provisions of this Indenture);




     (2) the Company defaults in the payment of any accrued and unpaid interest (including
Additional Interest, if any) with respect to such Series of Securities when due and
payable, and such default continues for a period of 30 days (whether or not prohibited by
the subordination provisions of this Indenture);




     (3) the Company fails to satisfy its Conversion Obligation or Remaining Conversion
Obligations upon exercise of a Holder’s conversion rights with respect to any Securities of
such Series pursuant hereto, which default continues for 15 days after performance is due;




     (4) the Company fails to provide the Fundamental Change Company Notice when required
by this Indenture and such failure continues for a period of five days after a Notice of
Default specifying such failure is given;




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




     (6) the Company or any Significant Subsidiary fails to make any payment of principal
in excess of $20,000,000 in respect of indebtedness for borrowed money, when and as the
same shall become due and payable, whether at maturity or upon acceleration, and such
indebtedness is not paid, or such acceleration is not rescinded, by the end of the 30th day
after receipt by the Company or such Significant Subsidiary of a Notice of Default;




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




     (A) commences a voluntary case or proceeding;




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




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




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



-47-









 






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




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




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




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


and in each case of this subclause (8) the order or decree remains unstayed and in effect for 60
consecutive days.




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




     (9) The Company fails to perform or comply with Sections 7.3 through
7.10 hereof, or any Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of this Indenture).



     A default under clause (5) or (6) above is not an Event of Default until the Trustee notifies
the Company, or the Holders of at least 25% in aggregate principal amount of the applicable Series
of Securities then outstanding notify the Company and the Trustee, in writing of the Default, and
the Company does not cure the Default (and such Default is not waived) within the time period
specified in clauses (5) or (6) above, as applicable, after actual receipt of such notice. The
notice given pursuant to this Section 8.1 must specify the Default, demand that it be
remedied and state that the notice is a “Notice of Default.” When any Default under this
Section 8.1 is cured in accordance herewith, it shall cease to be a Default.



     The Trustee shall not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the Corporate Trust Office of the Trustee by
the Company (including pursuant to Section 6.3), a Paying Agent, any Holder or any agent of
any Holder, which notice references the Securities and this Indenture.



     SECTION 8.2. Acceleration. If an Event of Default (other than an Event of Default
with respect to the Company specified in clause (7) or (8) of Section 8.1) occurs and is
continuing, the Trustee may, by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the applicable Series of Securities then outstanding may, by written notice to
the Company and the Trustee, declare all unpaid principal of plus interest (including Additional
Interest, if any) accrued and unpaid through the date of such declaration on all the Securities
then outstanding to be due and payable upon any such declaration, and the same shall thereupon
become and be immediately due and payable.



     If an Event of Default with respect to the Company specified in clause (7) or (8) of
Section 8.1 occurs, all unpaid principal of plus accrued and unpaid interest (including
Additional Interest, if any) on all the Securities then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.



-48-









 





     The Holders of a majority in aggregate principal amount of the applicable Series of Securities
then outstanding or the Holders originally causing the acceleration by notice to the Trustee may
rescind an acceleration of the applicable Series of Securities and its consequences before a
judgment or decree for the payment of money has been obtained by the Trustee if (a) the rescission
would not conflict with any existing order or decree, (b) all existing Events of Default with
respect to such Series, other than the nonpayment of the principal of plus accrued and unpaid
interest on the applicable Series of Securities that has become due solely by such declaration of
acceleration, have been cured or waived and (c) all payments due to the Trustee and any predecessor
Trustee under Section 9.6 have been made. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.



     SECTION 8.3. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may, but shall not be obligated to, pursue any available remedy by proceeding at law or in
equity to collect the payment of the principal of or accrued and unpaid interest on the Securities
or to enforce the performance of any provision of the Securities or this Indenture.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by
law.



     SECTION 8.4. Waiver of Defaults and Events of Default. Subject to Sections
8.7 and 10.2, the Holders of a majority in aggregate principal amount of the applicable
Series of Securities then outstanding by notice to the Trustee may waive an existing Default or
Event of Default and its consequence, except an uncured Default or Event of Default in the payment
of the principal of, or any interest (including Additional Interest, if any) on any Security, or
the payment of any applicable Fundamental Change Purchase Price, or an uncured failure by the
Company to convert any Securities in accordance with Article IV or any uncured Default or Event of
Default in respect of any provision of this Indenture or the Securities that, under Section
10.2, cannot be modified or amended without the consent of the Holders of each outstanding
Security of the applicable Series. When a Default or Event of Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent
right. This Section 8.4 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by the TIA.



     SECTION 8.5. Control by Majority. The Holders of a majority in aggregate principal
amount of the applicable Series of Securities then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it under this Indenture. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve the Trustee in
personal liability or expense unless the Trustee is offered security or indemnity reasonably
satisfactory to it; provided that the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; provided further that this provision shall
not affect the rights of the Trustee set forth in Section 9.1(b)(v). This Section
8.5 shall be in lieu of Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby
expressly excluded from this Indenture, as permitted by the TIA.



-49-









 





     SECTION 8.6. Limitations on Suits. Subject to Section 8.7, a Holder of a
Security may not pursue any remedy with respect to this Indenture or the Securities unless:




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




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




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




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




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



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



     SECTION 8.7. Rights of Holders to Receive Payment and to Convert. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to receive payment of the
principal amount, Fundamental Change Purchase Price or interest (including Additional Interest, if
any) on any Security, on or after the respective due dates expressed in the Security and this
Indenture, to convert such Security in accordance with Article IV and to bring suit for the
enforcement of any such payment on or after such respective dates or the right to convert, is
absolute and unconditional and shall not be impaired or affected without the consent of the Holder.



     SECTION 8.8. Collection Suit by Trustee. If an Event of Default in the payment of
principal or interest specified in clause (1) or (2) of Section 8.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount owing with respect to
the Securities and the amounts provided for in Section 9.6.



     SECTION 8.9. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.6, and to the extent that such payment of the reasonable compensation, expenses,
disbursements and advances in any such proceedings shall be denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all



-50-









 







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



     SECTION 8.10. Priorities. Any money or property collected by the Trustee pursuant to
this Article VIII, and after an Event of Default, any money or other property distributable in
respect of the Company’s obligations under this Indenture shall be paid out in the following order:




     First, to the Trustee (including any predecessor Trustee) for amounts due under
Section 9.6;




     Second, to holders of Senior Indebtedness of the Company, or, if such money or
property has been collected from a Subsidiary Guarantor, to holders of Senior Indebtedness
of such Subsidiary Guarantor, in each case to the extent required by Article XI or
subordination terms substantially similar thereto, as applicable;




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




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



     The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 8.10. At least 15 days before such record date, the Trustee shall mail to each
Holder and the Company a notice that states the record date, the payment date and the amount to be
paid.



     SECTION 8.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 8.11 does not apply to a suit made by the Trustee, a suit by
a Holder pursuant to Section 8.7, or a suit by Holders of more than 25% in aggregate
principal amount of the applicable Series of Securities then outstanding. This Section
8.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.



     SECTION 8.12. Delay or Omission Not Waiver. No delay or omission of the Trustee or of
any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article VIII 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.



-51-









 





ARTICLE IX




Trustee




     SECTION 9.1. Certain Duties and Responsibilities of Trustee. (a) In case an Event of
Default with respect to either Series of Securities has occurred (that has not been cured or
waived) and has become known to the Trustee, the Trustee shall exercise with respect to such Series
of Securities such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.



     (b) Prior to the time when the occurrence of an Event of Default becomes known to the Trustee
and after the curing or waiving of all such Events of Default with respect to the Securities that
may have occurred:




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




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



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




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




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




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




     (iv) None of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if



-52-









 






there is reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or adequate indemnity
against such risk of expense and liability is not reasonably assured to it.



     (d) Whether or not expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee (in any capacity,
including Paying Agent, Registrar or Conversion Agent) shall be subject to the provisions of this
Section 9.1.



     SECTION 9.2. Certain Rights of Trustee. Except as otherwise provided in Section
9.1:




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




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




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




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




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




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



-53-









 






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




     (h) The Trustee shall not be deemed to have knowledge or be charged with knowledge of
any Default or Event of Default except (i) if the Trustee is acting as Paying Agent, any
Default or Event of Default occurring pursuant to 8.1(1) or 8.1(2) and (ii)
any Default or Event of Default of which the Trustee shall have received written
notification which references the Securities and this Indenture or of which a Trust Officer
shall have obtained actual knowledge. Delivery of reports, information and documents to
the Trustee under Section 6.2 is for informational purposes only and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates, except as otherwise provided
herein);




     (i) The rights, privileges, protections, immunities and benefits given to the Trustee
pursuant hereto, including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other person employed by the Trustee to act hereunder;




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




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




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




     (m) The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including 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 9.3. Trustee Not Responsible for Recitals or Issuance or Securities. (a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same.



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



-54-









 





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



     SECTION 9.4. May Hold Securities. The Trustee or any Paying Agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Section 9.16, may otherwise deal with the Company or Subsidiary Guarantor with the
same rights it would have if it were not Trustee, Paying Agent or Security Registrar.



     SECTION 9.5. Moneys Held in Trust. Subject to the provisions of Section 8.5,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the Company to pay
thereon.



     SECTION 9.6. Compensation and Reimbursement. (a) The Company covenants and agrees to
pay to the Trustee, and the Trustee shall be entitled to, such compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust), as
the Company and the Trustee may from time to time agree in writing for all services rendered by it
in the execution of the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the
Company shall pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from the Trustee’s negligence, bad faith or willful misconduct. The Company
and the Subsidiary Guarantors, jointly and severally, covenant and agree to indemnify the Trustee
(and its officers, agents, directors, stockholders and employees) for, and to hold it harmless
against, any loss, liability or expense (including reasonable attorney’s fees and expenses)
incurred without negligence or bad faith or willful misconduct on the part of the Trustee and
arising out of or in connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability in the premises.
The Trustee shall notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. The Company need not pay for any settlement effected without its prior
written consent, which shall not be unreasonably withheld. The Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred by it resulting from
its negligence, willful misconduct or bad faith.



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



     (c) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 8.1(7) or (8) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.



-55-









 





     (d) For the purposes of this Section 9.6, the “Trustee” shall include any predecessor
Trustee; provided, however, that the negligence, bad faith or willful misconduct of any Trustee or
other indemnified party hereunder shall not affect the rights of any other Trustee hereunder.



     (e) The provisions of this Section 9.6 shall survive the discharge of this Indenture
and resignation or removal of the Trustee.



     SECTION 9.7. Reliance on Officers’ Certificate. Except as otherwise provided in
Section 9.1, whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate or Opinion
of Counsel delivered to the Trustee and such certificate, in the absence of bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith thereof.



     SECTION 9.8. Disqualification: Conflicting Interests. If the Trustee has or shall
acquire any “conflicting interest” within the meaning of Section 310(b) of the TIA, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b) of the TIA.



     SECTION 9.9. Corporate Trustee Required; Eligibility. There shall at all times be a
Trustee with respect to the Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or other Person permitted to act
as trustee by the SEC, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus, or being a member of a bank holding company with a combined capital
and surplus, of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section 9.9,
the combined capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.9, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.10.



     SECTION 9.10. Resignation and Removal; Appointment of Successor. (a) The Trustee or
any successor hereafter appointed may at any time resign as Trustee with respect to the Securities
by giving written notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Register. Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to the Securities by or pursuant to a resolution of the Board of
Directors. If no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee with respect to the
Securities, or any Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee, in either case



-56-









 







at the sole cost and expense of the Company. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.



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




     (i) the Trustee shall fail to comply with the provisions of Section 9.8
after written request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 9.9 and shall fail to resign after written request therefor by the
Company or by any such Securityholder; or




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


then, in any such case, the Company may remove the Trustee with respect to all Securities and
appoint a successor trustee by or pursuant to a resolution of the Company’s Board of Directors, or,
subject to Section 8.11, any Securityholder who has been a bona fide holder of a Security
or Securities for at least six months may, on behalf of that Holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.




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



     (d) Notwithstanding anything herein to the contrary, any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities pursuant to any of the
provisions of this Section 9.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 9.11.



     (e) So long as no event which is, or after notice or lapse of time, or both, would become, an
Event of Default shall have occurred and be continuing, and except with respect to a Trustee
appointed by the Holders of a majority in principal amount of the Securities at that time
outstanding pursuant to Section 9.10(c), if the Company shall have delivered to the Trustee (i) a
resolution of the Company’s Board of Directors appointing a successor Trustee, effective as of a
date specified therein, and (ii) an instrument of acceptance of such appointment, effective as of
such date, by such successor Trustee in accordance with Section 9.11, the Trustee shall be
deemed to have resigned as contemplated in Section 9.10(a), the successor Trustee shall be
deemed to have been appointed by the Company pursuant to Section 9.10(a) and such



-57-









 







appointment shall be deemed to have been accepted as contemplated in Section 9.11, all
as of such date, and all other provisions of this Section 9.10 and Section 9.11
shall be applicable to such resignation, appointment and acceptance except to the extent
inconsistent with this Section 9.10(e).



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



     SECTION 9.11. Acceptance of Appointment By Successor. (a) In case of the appointment
hereunder of a successor trustee with respect to the Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges and all other amounts payable to it hereunder, execute and deliver an
instrument transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder, subject to the lien provided for in Section
9.6(b).



     (b) Upon request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in Section 9.11(a).



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



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



     SECTION 9.12. Merger, Conversion, Consolidation or Succession to Business. Any
corporation or other business entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation or other business entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or
other business entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation or other business entity shall
be qualified under the provisions of Section 9.8 and eligible under the provisions of
Section 9.9, without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.



     SECTION 9.13. Preferential Collection of Claims Against the Company. The Trustee
shall comply with Section 311(a) of the TIA, excluding any creditor relationship described in
Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be subject to Section
311(a) of the TIA to the extent included therein.



-58-









 





     SECTION 9.14. Notice of Defaults. If a Default or Event of Default occurs and is
continuing hereunder and if it is actually known to a Trust Officer of the Trustee, the Trustee
shall mail to each Holder notice of the Default or Event of Default within 90 days after such
Default or Event of Default. Except in the case of a default in payment of principal of or
interest (including Additional Interest, if any) on any Security, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is not opposed to the interest of the Holders of such Securities.



     SECTION 9.15. Reports by Trustee. (a) Within sixty (60) days after May 15 of each
year commencing with the year 2007, the Trustee shall transmit to Securityholders such reports
dated as of May 15 of the year in which such report is made concerning the Trustee and its actions
under this Indenture as may be required pursuant to the TIA, including Section 313(a) thereof, at
the times and in the manner provided pursuant thereto. In the event that, on any such reporting
date, no events have occurred under the applicable sections of the TIA within the 12 months
preceding such reporting date, the Trustee shall be under no duty or obligation to provide such
reports. The Trustee shall also comply with TIA Section 313(b)(2). The Trustee shall transmit by
mail all reports as required by TIA Section 313(c).



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



     SECTION 9.16. Preferential Collection of Claims. If and when the Trustee shall be or
become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the TIA regarding the collection of claims against the Company (or any
such other obligor).



ARTICLE X




Amendments, Supplements and Waivers




     SECTION 10.1. Without Consent of Holders. The Company and the Trustee may amend or
supplement this Indenture or the Securities without notice to, or consent of, any Securityholder:




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




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




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



-59-









 






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




     (e) to add a guarantor;




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




     (g) to secure the Securities;




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




     (i) to increase the Conversion Rate;




     (j) to execute a supplemental indenture in accordance with Section 4.11;




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




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




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




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



     SECTION 10.2. With Consent of Holders. The Company and the Trustee may amend or
supplement the Securities, this Indenture or any Subsidiary Guarantee with the consent of the
Holders of at least a majority in aggregate principal amount of the Securities then outstanding.
Subject to Section 8.4 and Section 8.7, the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding may waive compliance in any instance
by the Company with any provision of the Securities or this Indenture without notice to any
Securityholder. However, notwithstanding the foregoing, (i) if any amendment, supplement or waiver
would by its terms disproportionately and adversely affect either Series of Securities, such
amendment, supplement or waiver shall also require the consent of Holders of at least a majority in
aggregate principal amount of such Series of Securities and (ii) if any amendment, supplement or
waiver would only affect one Series of Securities, such amendment, supplement or waiver shall only
require the consent of Holders of at least a majority in aggregate principal amount of such Series
of Securities. In addition, notwithstanding the foregoing but subject to Section 10.4,
without the consent of the Holders affected, an amendment, supplement or waiver may not:



-60-









 






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




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




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




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




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




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




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




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




     (i) make any change in Article XI that would adversely affect the Holders; or




     (j) alter the manner of calculation or rate of accrual of interest or Additional
Interest or Fundamental Change Purchase Price or the Conversion Rate (except as permitted
under Section 10.1(i)) on any Security or extend the time for payment of any such
amount.



     Without limiting, and subject to, the other provisions of this Section 10.2, the
Holders of a majority in aggregate principal amount of the Securities then outstanding may, on
behalf of all the Holders of the Securities, (i) in addition to what is permitted pursuant to
Article VII, consent to the assignment or transfer by the Company of any of its rights and
obligations (and release of the Company from such obligations) under this Indenture, or the
Securities, (ii) make any change to the Company’s obligation to issue shares of Common Stock, Cash
or a combination of shares of Common Stock and Cash or to repurchase all or a portion of the
Securities in the event of a Fundamental Change (including changing, modifying or amending any
definitions with respect thereto) and (iii) waive compliance by the Company with any of the
provisions or restrictions of this Indenture (other than such matters as are set forth in clauses
(a) through (j) of this Section 10.2).



     It shall not be necessary for the consent of the Holders under this Section 10.2 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.



     After an amendment, supplement or waiver under Section 10.1 or this Section
10.2 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to mail such



-61-









 







notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.



     SECTION 10.3. Compliance with Trust Indenture Act. Every amendment to or supplement
of this Indenture or the Securities shall comply with the TIA as in effect at the date of such
amendment or supplement.



     SECTION 10.4. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion
of a Security if the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.



     After an amendment, supplement or waiver becomes effective, it shall bind every applicable
Securityholder, unless it makes a change described in any of clauses (a) through (j) of Section
10.2. In the case of an amendment, supplement or waiver that makes a change described in any
of clauses (a) through (j) of Section 10.2, the amendment, supplement or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s Security.



     SECTION 10.5. Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate
a new Security that reflects the changed terms.



     SECTION 10.6. Trustee to Sign Amendments, Etc. The Trustee shall sign any amendment
or supplemental indenture authorized pursuant to this Article X if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does adversely affect the rights, duties, liabilities or immunities of the Trustee, the
Trustee may, in its sole discretion, but need not sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be provided with and, subject to Section
9.1, shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the effectiveness of such amendment or supplement
have been satisfied or duly waived.



     SECTION 10.7. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article X, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.



-62-









 





ARTICLE XI




Subordination




     SECTION 11.1. Agreement To Subordinate. The Company agrees, and each Securityholder
by accepting a Security agrees, that the Indebtedness evidenced by the Securities is subordinated
in right of payment, to the extent and in the manner provided in this Article XI, to the prior
payment of all Senior Indebtedness of the Company and that the subordination is for the benefit of
and enforceable by the holders of such Senior Indebtedness. All provisions of this Article XI
shall be subject to Section 11.12.



     SECTION 11.2. Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution
of the assets of the Company to creditors upon a total or partial liquidation or a total or partial
dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:




     (a) holders of Senior Indebtedness of the Company shall be entitled to receive payment
in full in cash of such Senior Indebtedness before Securityholders shall be entitled to
receive any payment of principal of or interest on the Securities; and




     (b) until such Senior Indebtedness is paid in full in cash, any payment or
distribution to which Securityholders would be entitled but for this Article XI shall be
made to holders of such Senior Indebtedness as their interests may appear, except that
Securityholders may receive shares of stock and any debt securities that are subordinated
to such Senior Indebtedness to at least the same extent as the Securities.



     SECTION 11.3. Default on Senior Indebtedness of the Company. The Company shall not
pay the principal of or interest on the Securities or make any deposit pursuant to Section
13.1 and may not purchase or otherwise retire any Securities (collectively, “pay the
Securities”) if either of the following (a “Payment Default”) occurs (a) any Designated
Senior Indebtedness of the Company is not paid in full in cash when due; or (b) any other default
on Designated Senior Indebtedness of the Company occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms unless, in either case, the Payment
Default has been cured or waived and any such acceleration has been rescinded or such Designated
Senior Indebtedness has been paid in full in cash; provided, however,
that the Company shall be entitled to pay the Securities without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment from the Representatives of
all Designated Senior Indebtedness with respect to which a Payment Default has occurred and is
continuing. During the continuance of any default (other than a Payment Default) with respect to
any Designated Senior Indebtedness of the Company pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be required to effect
such acceleration) or the expiration of any applicable grace periods (a “Nonpayment
Default”), the Company shall not pay the Securities for a period (a “Payment Blockage
Period”) commencing upon the receipt by the Trustee of (with a copy to the Company) written
notice (a “Blockage Notice”) of such default from the Representative of such Designated
Senior Indebtedness specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter. The Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated (1) by written notice to the Trustee and the Company from the Person or Persons who gave
such Blockage Notice; (2) because the default giving rise to such Blockage Notice is cured, waived
or otherwise no longer continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash. Notwithstanding the provisions described in the immediately
preceding two sentences (but subject



-63-









 







to the provisions contained in the first sentence of this Section 11.3), unless there
is a Payment Default or the holders of such Designated Senior Indebtedness or the Representative of
such Designated Senior Indebtedness shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company shall be entitled to resume payments on the Securities after termination
of such Payment Blockage Period. The Securities shall not be subject to more than one Payment
Blockage Period in any consecutive 360-day period, irrespective of the number of Nonpayment
Defaults with respect to Designated Senior Indebtedness of the Company during such period. For
purposes of this Section 11.3, no default or event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness of the Company initiating such Payment Blockage Period shall be, or
be made, the basis of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.



     SECTION 11.4. Acceleration of Payment of Securities. If payment of the Securities is
accelerated because of an Event of Default, the Company or the Trustee (if requested in writing by
the Company and if provided with a list of the names and addresses of the Holders of Senior
Indebtedness of the Company by the Company at its expense) shall promptly notify the holders of the
Senior Indebtedness of the Company (or their Representatives) of the acceleration and all
Obligations with respect to such Senior Indebtedness shall be paid in full before the Holders of
the Securities are entitled to receive any payment or other distribution.



     SECTION 11.5. When Distribution Must Be Paid Over. If a distribution is made to
Securityholders that because of this Article XI should not have been made to them, the
Securityholders who receive the distribution shall hold it in trust for holders of Senior
Indebtedness of the Company and pay it over to them as their interests may appear.



     SECTION 11.6. Subrogation. After all Senior Indebtedness of the Company is paid in
full and until the Securities are paid in full, Securityholders shall be subrogated to the rights
of holders of such Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness. A distribution made under this Article XI to holders of such Senior Indebtedness
which otherwise would have been made to Securityholders is not, as between the Company and
Securityholders, a payment by the Company on such Senior Indebtedness.



     SECTION 11.7. Relative Rights. This Article XI defines the relative rights of
Securityholders and holders of Senior Indebtedness of the Company. Nothing in this Indenture
shall:




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




     (b) prevent the Trustee or any Securityholder from exercising its available remedies
upon a Default, subject to the rights of holders of Senior Indebtedness of the Company to
receive distributions otherwise payable to Securityholders.



     SECTION 11.8. Subordination May Not Be Impaired by Company. No right of any holder of
Senior Indebtedness of the Company to enforce the subordination of the Indebtedness evidenced by
the Securities shall be impaired by any act or failure to act by the Company or by its failure to
comply with this Indenture. Without in any way limiting the generality of this Section
11.8, the holders of Senior Indebtedness may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders, without incurring responsibility to the



-64-









 







Trustee or the Holders and without impairing or releasing the subordination designated in this
Article XI or the obligations hereunder of the Holders to the holders of Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or any instrument evidencing the same
or any agreement under which Senior Indebtedness is outstanding or secured; (2) sell, exchange,
release, foreclose against or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for the collection of
Senior Indebtedness; and (4) exercise or refrain from exercising any rights against the Company,
and Subsidiary thereof or any other Person.



     SECTION 11.9. Rights of Trustee and Paying Agent. Notwithstanding Section
11.3, the Trustee or Paying Agent shall continue to make payments on the Securities and shall
not be charged with knowledge of the existence of facts that under this Article XI would prohibit
the making of any such payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives notice satisfactory to it that such payments are
prohibited by this Article XI. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of the Company shall be entitled to give the
notice; provided, however, that, if an issue of Senior Indebtedness of the Company
has a Representative, only the Representative shall be entitled to give the notice.



     The Trustee in its individual or any other capacity shall be entitled to hold Senior
Indebtedness of the Company with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent shall be entitled to do the same with like rights.
The Trustee shall be entitled to all the rights set forth in this Article XI with respect to any
Senior Indebtedness of the Company which may at any time be held by it, to the same extent as any
other holder of such Senior Indebtedness; and nothing in Article IX shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article XI shall apply to claims of, or payments
to, the Trustee under or pursuant to Article IX.



     SECTION 11.10. Distribution or Notice to Representative. Whenever any Person is to
make a distribution or give a notice to holders of Senior Indebtedness of the Company, such Person
shall be entitled to make such distribution or give such notice to their Representative (if any).



     SECTION 11.11. Article XI Not To Prevent Events of Default or Limit Right To
Accelerate. The failure to make a payment pursuant to the Securities by reason of any
provision in this Article XI shall not be construed as preventing the occurrence of a Default.
Nothing in this Article XI shall have any effect on the right of the Securityholders or the Trustee
to accelerate the maturity of the Securities.



     SECTION 11.12. Trust Moneys Not Subordinated. Notwithstanding anything contained
herein to the contrary, payments from Cash or the proceeds of Common Stock or other consideration
held in trust under Article XIII by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior Indebtedness of the Company
or subject to the restrictions set forth in this Article XI, and none of the Securityholders shall
be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.



     SECTION 11.13. Trustee Entitled To Rely. Upon any payment or distribution pursuant to
this Article XI, the Trustee and the Securityholders shall be entitled to rely (a) upon any order
or decree of a court of competent jurisdiction in which any proceedings of the nature referred to
in Section 11.2 are pending, (b) upon a certificate of the liquidating trustee or agent or
other Person



-65-









 







making such payment or distribution to the Trustee or to the Securityholders or (c) upon the
Representatives of Senior Indebtedness of the Company for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such Senior Indebtedness
and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article XI. In the
event that the Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment
or distribution pursuant to this Article XI, the Trustee shall be entitled to request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and other facts pertinent to the rights of such Person under this
Article XI, and, if such evidence is not furnished, the Trustee shall be entitled to defer any
payment to such Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 9.1 and 9.2 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article XI.



     SECTION 11.14. Trustee To Effectuate Subordination. Each Securityholder by accepting
a Security authorizes and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination between the Securityholders and the
holders of Senior Indebtedness of the Company as provided in this Article XI and appoints the
Trustee as attorney-in-fact for any and all such purposes.



     SECTION 11.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of the
Company. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Securityholders or the Company or any other Person, money or assets to which
any holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article XI or
otherwise.



     SECTION 11.16. Reliance by Holders of Senior Indebtedness of the Company on Subordination
Provisions. Each Securityholder by accepting a Security acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement and a consideration
to each holder of any Senior Indebtedness of the Company, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness and such holder of such Senior Indebtedness
shall be deemed conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.



ARTICLE XII




[RESERVED]




ARTICLE XIII




Satisfaction and Discharge




     SECTION 13.1. Satisfaction and Discharge of the Indenture. This Indenture shall cease
to be of further effect (except as to any surviving rights of registration of transfer or exchange
of Securities herein expressly provided for), and the Trustee, on demand of and at the expense of
the



-66-









 







Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when




     (a) either




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




     (ii) all such Securities not theretofore delivered to the Trustee for
cancellation have become due and payable whether at the Final Maturity Date or upon
acceleration, or with respect to any Fundamental Change Purchase Date, and the
Company deposits with the Paying Agent or Conversion Agent, as the case may be,
Cash, Common Stock or other consideration, or a combination thereof, as applicable
hereunder, sufficient to pay on such date all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.7) on such date (and such deposit is permitted under Article XI);




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




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



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 9.6 and, if money shall have been deposited with the
Trustee pursuant to Section 13.1(a)(ii), the obligations of the Trustee under Section
13.2 shall survive such satisfaction and discharge.



     Notwithstanding anything herein to the contrary, Article IV, Article XI and Article XIII and
Section 2.4, Section 2.6, Section 2.7, Section 2.8, Section
6.1, Section 6.5, Section 6.6 and Section 9.6 shall survive any
discharge of this Indenture until such time as there are no Securities outstanding.



     SECTION 13.2. Repayment to the Company. The Trustee, the Paying Agent and the
Conversion Agent shall return to the Company upon written request any Cash or securities held by
them for the payment of any amount with respect to the Securities that remains unclaimed for two
years, subject to applicable unclaimed property law. After return to the Company, Holders entitled
to the Cash or securities must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and the Trustee, the Paying Agent and
the Conversion Agent shall have no further liability to the Securityholders with respect to such
Cash or securities for that period commencing after the return thereof.



ARTICLE XIV




Miscellaneous




     SECTION 14.1. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by



-67-









 







the TIA, including the duties imposed by TIA Section 318(c), the required provision of the TIA
shall control.



     SECTION 14.2. Notices. Any demand, authorization notice, request, consent or
communication shall be given in writing and delivered in person, sent by overnight courier or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile
transmission (confirmed by delivery in person or mail by first-class mail, postage prepaid, or by
guaranteed overnight courier) to the following facsimile numbers:


If to the Company, to:



Skyworks Solutions, Inc.

20 Sylvan Road

Woburn, MA 01801

Attention: General Counsel

Facsimile No.: 781-376-3310



if to the Trustee, to:



U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Corporate Trust Services/James P. Freeman

Facsimile No.: 617-603-6667




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



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



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



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



     SECTION 14.3. Communications by Holders with Other Holders. Securityholders may
communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent,
the Conversion Agent and any other Person shall have the protection of TIA Section 312(c).



     SECTION 14.4. Certificate and Opinion as to Conditions Precedent. (a) Upon any
request or application by the Company to the Trustee to take any action under this Indenture, the
Company shall furnish to the Trustee at the request of the Trustee:



-68-









 






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




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



     (b) Each Officers’ Certificate and Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture (other than an Officers’ Certificate provided
pursuant to Section 6.3) shall include:




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




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




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




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


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




     SECTION 14.5. Record Date for Vote or Consent of Securityholders. The Company may set
a record date for purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture, which record date shall
not be more than 30 days prior to the date of the commencement of solicitation of such action.
Notwithstanding the provisions of Section 10.4, if a record date is fixed, those persons
who were Holders of Securities at the close of business on such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to
be Holders after such record date.



     SECTION 14.6. Rules by Trustee, Paying Agent, Registrar and Conversion Agent. The
Trustee may make reasonable rules (not inconsistent with the terms of this Indenture) for action by
or at a meeting of Holders. Any Registrar, Paying Agent or Conversion Agent may make reasonable
rules for its functions.



     SECTION 14.7. Legal Holidays. A “Legal Holiday” is a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New York, the city in
which the Corporate Trust Office is located, are not required to be open. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If an Interest Payment Record Date or other
record date is a Legal Holiday, the record date shall not be affected.



-69-









 





     SECTION 14.8. Governing Law; Jury Trial Waiver. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of New York.



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



     SECTION 14.9. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of
the Company. Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.



     SECTION 14.10. No Recourse Against Others. No recourse under or upon any obligation,
covenant or agreement of the Company contained in this Indenture, or in any Security, or because of
any Indebtedness evidenced thereby or hereby, shall be had against any incorporator, as such, or
against any past, present or future employee, stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders and as part of the consideration for the
issuance of the Securities.



     SECTION 14.11. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor.



     SECTION 14.12. Multiple Counterparts. The parties may sign multiple counterparts of
this Indenture. Each signed counterpart shall be deemed an original, but all of them together
shall represent the same agreement.



     SECTION 14.13. Separability. In case any provisions in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     SECTION 14.14. Calculations in Respect of the Securities. The Company or its agents
shall make all calculations under this Indenture and the Securities in good faith. In the absence
of manifest error, such calculations shall be final and binding on all Holders. The Company or its
agents shall provide a copy of such calculations to the Trustee as required hereunder, the Trustee
shall be entitled to rely on the accuracy of any such calculation without independent verification.



     SECTION 14.15. Table of Contents, Headings, Etc. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.



     SECTION 14.16. No Security Interest. Nothing in this Indenture or in the Securities,
express or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, now in effect or hereafter enacted and made effective, in
any jurisdiction.



[SIGNATURE PAGE FOLLOWS]




-70-









 








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



	 	 	 	 	 
	 	SKYWORKS SOLUTIONS, INC., 

 	 
	 	By:  	
/s/ Mark V.B. Tremallo
 	 
	 	 	Name:  	Mark V.B. Tremallo      	 
	 	 	Title:  	Vice President, General Counsel and Secretary 	 
	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee 

 	 
	 	By:  	
/s/ James P. Freeman
 	 
	 	 	Name:  	James P. Freeman	 
	 	 	Title:  	Vice President 	 
	 




-71-










 





EXHIBIT A-1




[FORM OF FACE OF SECURITY]




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



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



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





 




			
	1	 	This legend to be included only if the
Security is a Global Security.
	 
	2	 	This legend to be included only if the
Security is a Restricted Security.




A-1-1









 









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






 




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




A-1-2









 










SKYWORKS SOLUTIONS, INC.




1.25% Convertible Subordinated Notes due 2010




No. CUSIP: 83088M AE2



No. ISIN: US83088MAE21




     Skyworks Solutions, Inc., a Delaware corporation (the “Company,” which term shall
include any successor Person under the Indenture referred to on the attached “Terms of the Notes”),
promises to pay to, or registered assigns, the principal amount of
[•] ($[•]) on March
1, 2010, and to pay interest thereon, in arrears, from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for (or if no interest has been paid,
from, and including March 2, 2007), to, but excluding, March 1 and September 1 of each year (each,
an “Interest Payment Date”), beginning on September 1, 2007, at a rate of 1.25% per annum
until the principal hereof is paid or made available for payment at March 1, 2010, or upon
acceleration, or until such date on which this security is converted or purchased as provided
herein. Except as otherwise provided in the Indenture and herein, the interest so payable and
punctually paid or duly provided for on any Interest Payment Date shall, as provided in the
Indenture (as hereinafter defined), be paid to the Person in whose name this Security is registered
at the close of business on the regular record date for such interest, which shall be the February
15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding the
relevant Interest Payment Date (each, an “Interest Payment Record Date”).



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



[Signature page follows]




A-1-3









 








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



	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	SKYWORKS SOLUTIONS, INC.,	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	Title:	 	 





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




	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	not in its individual capacity, but solely

as Trustee,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 






A-1-4









 






[FORM OF THE TERMS OF THE 2010 NOTES]




SKYWORKS SOLUTIONS, INC.




1.25% CONVERTIBLE SUBORDINATED NOTES DUE 2010




     This Security is one of a duly authorized issue of 1.25% Convertible Subordinated Notes due
2010 (the “Securities”) of the Company issued under an Indenture, dated as of March 2, 2007
(the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the
“Trustee”). The terms of the Security include those stated in the Indenture, those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the
“TIA”), and those set forth in this Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, if any provision of this Security conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture
unless otherwise indicated.



1. Interest.




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



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



     Interest and Additional Interest, if any, on Securities converted after the close of business
on an Interest Payment Record Date but prior to the corresponding Interest Payment Date shall be
paid, on such Interest Payment Date4, to the Holder of the Securities as of the close of
business on the Interest Payment Record Date but, upon conversion, the converting Holder must pay
the Company an amount equal to the interest that shall be payable on such Interest Payment Date.
No such payment need be made with respect to Securities converted after an Interest Payment Record
Date and prior to the corresponding Interest Payment Date (1) if any overdue interest exists at the
time of conversion with respect to the Securities being converted, but only to the extent of the
amount of such overdue interest, or (2) if the Holder converts after the close of business on the
last Interest Payment Record date prior to March 1, 2010 (the “Final Maturity Date”).



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





 




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




A-1-5









 










2. Method of Payment.




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



3. Paying Agent, Registrar, Conversion Agent.




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



4. Indenture.




     The Securities are general subordinated unsecured obligations of the Company initially limited
to $100,000,000 aggregate principal amount. The Company may, without consent of the
Securityholders, issue additional Securities under the Indenture with the same terms as the notes
offered hereby in an unlimited aggregate principal amount. The Indenture does not limit other debt
of the Company, senior or subordinated or secured or unsecured.



5. Purchase by the Company Upon a Fundamental Change.




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



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



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



A-1-6









 





6. Conversion.




     Subject to the terms of the Indenture, prior to the Final Maturity Date, Holders may surrender
Securities, in whole or in part, for conversion at the Conversion Price then in effect. Subject to
the terms and conditions of the Indenture, a Holder of a Security may convert the Security (or any
portion thereof equal to $1,000 principal amount or any integral multiple of $1,000 principal
amount in excess thereof) into Cash, shares of Common Stock or a combination of Cash and shares of
Common Stock, at the Company’s option in accordance with Section 4.13 of the Indenture;
provided, however, that, if a Fundamental Change Purchase Notice with respect to a Security is
delivered in accordance with the Indenture, such Security shall not be convertible unless such
Fundamental Change Purchase Notice is duly withdrawn in accordance with the Indenture or unless
there shall be a default in the payment of the Fundamental Change Purchase Price, in which case the
conversion right with respect to such Security shall terminate immediately when such default is
cured and such Security is purchased in accordance with the Indenture.



     The initial Conversion Rate is 105.0696 shares of Common Stock per $1,000 principal amount of
Securities, which represents an initial Conversion Price of approximately $9.52 per share of Common
Stock. The Conversion Rate is subject to adjustment under certain circumstances as provided in the
Indenture, including, with respect to Securities surrendered for conversion, upon a Fundamental
Change. No fractional shares will be issued upon conversion.



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



7. Denominations; Transfer; Exchange.




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



8. Persons Deemed Owners.




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



9. Unclaimed Money or Securities.




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



A-1-7









 





10. Amendment, Supplement and Waiver.




     Subject to certain exceptions, the Securities or the Indenture may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities and the 2012 Securities then outstanding; provided, however, that (i) if any amendment,
supplement or waiver would by its terms disproportionately and adversely affect the Securities,
such amendment, supplement or waiver will also require the consent of Holders of at least a
majority in aggregate principal amount of the Securities then outstanding and (ii) if any
amendment, supplement or waiver would only affect the Securities or the 2012 Securities, as the
case may be, such amendment, supplement or waiver will only require the consent of Holders of at
least a majority in aggregate principal amount of the Securities or the 2012 Securities, as
applicable, then outstanding. Subject to certain exceptions, an existing Default or Event of
Default with respect to the Securities and its consequences or compliance with any provision of the
Securities or the Indenture may be waived with the consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding. Subject to the terms of the
Indenture, without the consent of or notice to any Holder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any change that does not adversely affect in any material respect the legal
rights under the Indenture of any Holder.



11. Defaults and Remedies.




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



12. Trustee Dealings with the Company.




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



13. No Recourse Against Others.




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



A-1-8









 





14. 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.



15. Abbreviations.




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



16. Indenture to Control; Governing Law.




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



17. Copies of Indenture.




     The Company shall furnish to any Holder, upon written request and without charge, a copy of
the Indenture. Requests may be made to: Skyworks Solutions, Inc., 20 Sylvan Road, Woburn, MA
01801, Fax no.: 781-376-3310, Attention: General Counsel.



18. Registration Rights.




     The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement,
dated as of March 2, 2007, between the Company and the Initial Purchaser, including, in certain
circumstances, the receipt of Additional Interest upon a registration default (as defined in such
agreement).5



19. Subordination.




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





 




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




A-1-9









 










SCHEDULE OF EXCHANGES OF SECURITIES6




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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	PRINCIPAL	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	AMOUNT OF	 
	 	 	 	 	 	 	DECREASE IN	 	 	INCREASE IN	 	 	THIS GLOBAL	 
	 	 	 	 	 	 	PRINCIPAL	 	 	PRINCIPAL	 	 	SECURITY	 
	DATE OF	 	AUTHORIZED	 	 	AMOUNT OF	 	 	AMOUNT OF	 	 	FOLLOWING	 
	DECREASE OR	 	SIGNATORY OF	 	 	THIS GLOBAL	 	 	THIS GLOBAL	 	 	SUCH DECREASE	 
	INCREASE	 	SECURITIES	 	 	SECURITY	 	 	SECURITY	 	 	OR INCREASE	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




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




A-1-10









 










ASSIGNMENT FORM7




To assign this Security, fill in the form below:




I or we assign and transfer this Security to




 




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




 




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



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




	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

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

this Security)	 	 






Signature Guaranteed

Participant in a Recognized Signature




Guarantee Medallion Program




	 	 	 	 	 
	By:

	 	 

	 	  
	 

	 	Authorized Signatory	 	 








 




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




A-1-11









 










FORM OF CONVERSION NOTICE




     To convert this Security into Cash, shares of Common Stock or a combination of Cash and shares
of Common Stock, as applicable and as provided in the Indenture, check the box o



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








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



 




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




 




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




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



	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

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






Signature Guaranteed

Participant in a Recognized Signature




Guarantee Medallion Program




	 	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






A-1-12









 






FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE




U.S. Bank National Association, as Trustee

[  ]

[  ]




Attn:      Corporate Trust Administration




	 	 	 	 	 
	 

	 	Re:
	 	Skyworks Solutions, Inc. (the “Company”)
	 

	 	 	 	1.25% Convertible Subordinated Notes due 2010






     This is a Fundamental Change Purchase Notice as defined in Section 3.1(c) of the
Indenture, dated as of March 2, 2007 (the “Indenture”), between the Company and U.S. Bank National
Association, as Trustee. Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.



     Certificate No(s). of Securities:



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




     $


     I hereby agree that the Securities shall be purchased on the Fundamental Change Purchase Date
pursuant to the terms and conditions specified in paragraph 5 of the Securities and in the
Indenture.



Signed:                                         





A-1-13









 








EXHIBIT A-2




[FORM OF FACE OF SECURITY]




     [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]8



     [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.]9



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





 




			
	8	 	This legend to be included only if the
Security is a Global Security.
	 
	9	 	This legend to be included only if the
Security is a Restricted Security.




A-2-1









 










     THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.]10





 




			
	10	 	This legend to be included only if the
Security is a Restricted Security.






A-2-2









 





SKYWORKS SOLUTIONS, INC.




1.50% Convertible Subordinated Notes due 2012




No. CUSIP: 83088M AG7

No. ISIN: US83088MAG78




     Skyworks Solutions, Inc., a Delaware corporation (the “Company,” which term shall
include any successor Person under the Indenture referred to on the attached “Terms of the Notes”),
promises to pay to, or registered assigns, the principal amount of [•] ($[•]) on March
1, 2012, and to pay interest thereon, in arrears, from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for (or if no interest has been paid,
from, and including March 2, 2007), to, but excluding, March 1 and September 1 of each year (each,
an “Interest Payment Date”), beginning on September 1, 2007, at a rate of 1.50% per annum
until the principal hereof is paid or made available for payment at March 1, 2012, or upon
acceleration, or until such date on which this security is converted or purchased as provided
herein. Except as otherwise provided in the Indenture and herein, the interest so payable and
punctually paid or duly provided for on any Interest Payment Date shall, as provided in the
Indenture (as hereinafter defined), be paid to the Person in whose name this Security is registered
at the close of business on the regular record date for such interest, which shall be the February
15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding the
relevant Interest Payment Date (each, an “Interest Payment Record Date”).



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



[Signature page follows]





A-2-3









 








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



Dated:                                         




	 	 	 	 	 
	 	SKYWORKS SOLUTIONS, INC., 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


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




	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely as Trustee,

 	 
	 	By:  	 	 
	 	 	Authorized Signatory      	 
	 	 	 	 



A-2-4









 






	 	 	 	 	 



[FORM OF THE TERMS OF THE 2012 NOTES]




SKYWORKS SOLUTIONS, INC.




1.50% CONVERTIBLE SUBORDINATED NOTES DUE 2012





     This Security is one of a duly authorized issue of 1.50% Convertible Subordinated Notes due
2012 (the “Securities”) of the Company issued under an Indenture, dated as of March 2, 2007
(the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the
“Trustee”). The terms of the Security include those stated in the Indenture, those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the
“TIA”), and those set forth in this Security. This Security is subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, if any provision of this Security conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture
unless otherwise indicated.



1. Interest.




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



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



     Interest and Additional Interest, if any, on Securities converted after the close of business
on an Interest Payment Record Date but prior to the corresponding Interest Payment Date shall be
paid, on such Interest Payment
Date11, to the Holder of the Securities as of the close of
business on the Interest Payment Record Date but, upon conversion, the converting Holder must pay
the Company an amount equal to the interest that shall be payable on such Interest Payment Date.
No such payment need be made with respect to Securities converted after an Interest Payment Record
Date and prior to the corresponding Interest Payment Date (1) if any overdue interest exists at the
time of conversion with respect to the Securities being converted, but only to the extent of the
amount of such overdue interest, or (2) if the Holder converts after the close of business on the
last Interest Payment Record date prior to March 1, 2012 (the “Final Maturity Date”).



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





 




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




A-2-5









 










2. Method of Payment.




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



3. Paying Agent, Registrar, Conversion Agent.




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



4. Indenture.




     The Securities are general subordinated unsecured obligations of the Company initially limited
to $100,000,000 aggregate principal amount. The Company may, without consent of the
Securityholders, issue additional Securities under the Indenture with the same terms as the notes
offered hereby in an unlimited aggregate principal amount. The Indenture does not limit other debt
of the Company, senior or subordinated or secured or unsecured.



5. Purchase by the Company Upon a Fundamental Change.




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



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



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



A-2-6









 





6. Conversion.




     Subject to the terms of the Indenture, prior to the Final Maturity Date, Holders may surrender
Securities, in whole or in part, for conversion at the Conversion Price then in effect. Subject to
the terms and conditions of the Indenture, a Holder of a Security may convert the Security (or any
portion thereof equal to $1,000 principal amount or any integral multiple of $1,000 principal
amount in excess thereof) into Cash, shares of Common Stock or a combination of Cash and shares of
Common Stock, at the Company’s option in accordance with Section 4.13 of the Indenture;
provided, however, that, if a Fundamental Change Purchase Notice with respect to a Security is
delivered in accordance with the Indenture, such Security shall not be convertible unless such
Fundamental Change Purchase Notice is duly withdrawn in accordance with the Indenture or unless
there shall be a default in the payment of the Fundamental Change Purchase Price, in which case the
conversion right with respect to such Security shall terminate immediately when such default is
cured and such Security is purchased in accordance with the Indenture.



     The initial Conversion Rate is 105.0696 shares of Common Stock per $1,000 principal amount of
Securities, which represents an initial Conversion Price of approximately $9.52 per share of Common
Stock. The Conversion Rate is subject to adjustment under certain circumstances as provided in the
Indenture, including, with respect to Securities surrendered for conversion, upon a Fundamental
Change. No fractional shares will be issued upon conversion.



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



7. Denominations; Transfer; Exchange.




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



8. Persons Deemed Owners.




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



9. Unclaimed Money or Securities.




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



A-2-7









 





10. Amendment, Supplement and Waiver.




     Subject to certain exceptions, the Securities or the Indenture may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities and the 2010 Securities then outstanding; provided, however, that (i) if any amendment,
supplement or waiver would by its terms disproportionately and adversely affect the Securities,
such amendment, supplement or waiver will also require the consent of Holders of at least a
majority in aggregate principal amount of the Securities then outstanding and (ii) if any
amendment, supplement or waiver would only affect the Securities or the 2010 Securities, as the
case may be, such amendment, supplement or waiver will only require the consent of Holders of at
least a majority in aggregate principal amount of the Securities or the 2010 Securities, as
applicable, then outstanding. Subject to certain exceptions, an existing Default or Event of
Default with respect to the Securities and its consequences or compliance with any provision of the
Securities or the Indenture may be waived with the consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding. Subject to the terms of the
Indenture, without the consent of or notice to any Holder, the Company and the Trustee may amend or
supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any change that does not adversely affect in any material respect the legal
rights under the Indenture of any Holder.



11. Defaults and Remedies.




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



12. Trustee Dealings with the Company.




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



13. No Recourse Against Others.




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



A-2-8









 





14. 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.



15. Abbreviations.




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



16. Indenture to Control; Governing Law.




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



17. Copies of Indenture.




     The Company shall furnish to any Holder, upon written request and without charge, a copy of
the Indenture. Requests may be made to: Skyworks Solutions, Inc., 20 Sylvan Road, Woburn, MA
01801, Fax no.: 781-376-3310, Attention: General Counsel.



18. Registration Rights.




     The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement,
dated as of March 2, 2007, between the Company and the Initial Purchaser, including, in certain
circumstances, the receipt of Additional Interest upon a registration default (as defined in such
agreement).12



19. Subordination.




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





 




			
	12	 	This Section to be included only if the
Security is a Restricted Security.




A-2-9









 










SCHEDULE OF EXCHANGES OF SECURITIES13




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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	PRINCIPAL	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	AMOUNT OF	 
	 	 	 	 	 	 	DECREASE IN	 	 	INCREASE IN	 	 	THIS GLOBAL	 
	 	 	 	 	 	 	PRINCIPAL	 	 	PRINCIPAL	 	 	SECURITY	 
	DATE OF 	 	AUTHORIZED	 	 	AMOUNT OF	 	 	AMOUNT OF	 	 	FOLLOWING	 
	DECREASE OR	 	SIGNATORY OF	 	 	THIS GLOBAL	 	 	THIS GLOBAL	 	 	SUCH DECREASE	 
	INCREASE	 	SECURITIES	 	 	SECURITY	 	 	SECURITY	 	 	OR INCREASE	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 




			
	13	 	This schedule to be included only if the
Security is a Global Security.




A-2-10









 










ASSIGNMENT FORM14



To assign this Security, fill in the form below:



I or we assign and transfer this Security to




 




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




 




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



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




	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 

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

Participant in a Recognized Signature	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Guarantee Medallion Program	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 	 	 	 	 	 	 








 




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





A-2-11









 





FORM OF CONVERSION NOTICE




     To convert this Security into Cash, shares of Common Stock or a combination of Cash and shares
of Common Stock, as applicable and as provided in the Indenture, check the box  ̈



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







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



 




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




 




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




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



	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Your Signature:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

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

Participant in a Recognized Signature	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Guarantee Medallion Program	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 	 	 	 	 	 	 






A-2-12









 





FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE




U.S. Bank National Association, as Trustee

[      ]

[      ]




Attn: Corporate Trust Administration





			
	                    Re:	 	Skyworks Solutions, Inc. (the “Company”)

1.50% Convertible Subordinated Notes due 2012





     This is a Fundamental Change Purchase Notice as defined in Section 3.1(c) of the
Indenture, dated as of March 2, 2007 (the “Indenture”), between the Company and U.S. Bank National
Association, as Trustee. Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.



     Certificate No(s). of Securities:



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


$

     I hereby agree that the Securities shall be purchased on the Fundamental Change Purchase Date
pursuant to the terms and conditions specified in paragraph 5 of the Securities and in the
Indenture.



Signed:                               





A-2-13









 








EXHIBIT B




CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF RESTRICTED
SECURITIES15





			
	                     Re:	 	[1.25% Convertible Subordinated Notes due 2010]

[1.50% Convertible Subordinated Notes due 2012]

(the “Securities”) of Skyworks Solutions, Inc.





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



     o book-entry or           o definitive form by (the “Transferor”).



     The Transferor has requested a Registrar or the Trustee to exchange or register the transfer
of such Securities. In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer restrictions relating
to the Securities as provided in Section 2.12 of the Indenture, dated as of March 2, 2007,
between Skyworks Solutions, Inc. and U.S. Bank National Association, as trustee (the “Indenture”),
and either the transfer of such Security is being made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the “Securities Act”) (check applicable
box) or the transfer or exchange, as the case may be, of such Security does not require
registration under the Securities Act because (check applicable box):




	 	o	 	Such Security is being transferred pursuant to an effective registration statement
under the Securities Act.
	 
	 	o	 	Such Security is being acquired for the Transferor’s own account, without transfer.
	 
	 	o	 	Such Security is being transferred to the Company or a Subsidiary (as defined in
the Indenture) of the Company.
	 
	 	o	 	Such Security is being transferred to a person the Transferor reasonably believes
is a “qualified institutional buyer” (as defined in Rule 144A or any successor
provision thereto (“Rule 144A”) under the Securities Act) to whom notice has been
given that the transfer is being made in reliance on such Rule 144A, in reliance on
Rule 144A.
	 
	 	o	 	Such Security is being transferred pursuant to and in compliance with an exemption
from the registration requirements under the Securities Act in accordance with Rule
144 (or any successor thereto) (“Rule 144”) under the Securities Act.
	 
	 	o	 	Such Security is being transferred to a non-U.S. Person in an offshore transaction
in compliance with Rule 904 of Regulation S under the Securities Act (or any successor
thereto).
	 
	 	o	 	Such Security is being transferred pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act (other than an exemption
referred to above).







 




			
	15	 	This certificate to be included only if the
Security is a Restricted Security.




B- 1









 











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



	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s) of Transferor
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
(If the registered owner is a
corporation, partnership or
fiduciary, the title person signing
on behalf of such registered owner
must be stated.)	 	 
	Signature Guaranteed	 	 	 	 	 	 	 	 
	Participant in a Recognized Signature	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Guarantee Medallion Program	 	 	 	 	 	 	 	 
	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 
	 

	 	Authorized Signatory	 	 	 	 	 	 	 	 






B-2









 





     IN WITNESS WHEREOF,



	 	 	 	 	 
	 	[                    ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




B- 3









 





SCHEDULE
A




The following table sets forth the increase in the Conversion Rate, expressed as a number of
additional shares of Common Stock to be received per $1,000 principal amount of 2010 Securities:







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fundamental Change Effective Date
	Stock Price	 	March 2, 2007	 	March 1, 2008	 	March 1, 2009	 	March 1, 2010
	$	7.05	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 
	$	8.00	 	 	 	27.71	 	 	 	26.52	 	 	 	24.01	 	 	 	19.94	 
	$	9.00	 	 	 	20.98	 	 	 	19.26	 	 	 	15.93	 	 	 	6.15	 
	$	10.00	 	 	 	16.17	 	 	 	14.20	 	 	 	10.60	 	 	 	0.00	 
	$	11.00	 	 	 	12.65	 	 	 	10.62	 	 	 	7.09	 	 	 	0.00	 
	$	12.00	 	 	 	10.03	 	 	 	8.05	 	 	 	4.77	 	 	 	0.00	 
	$	13.00	 	 	 	8.05	 	 	 	6.18	 	 	 	3.24	 	 	 	0.00	 
	$	14.00	 	 	 	6.54	 	 	 	4.80	 	 	 	2.22	 	 	 	0.00	 
	$	15.00	 	 	 	5.36	 	 	 	3.77	 	 	 	1.55	 	 	 	0.00	 
	$	16.00	 	 	 	4.44	 	 	 	2.99	 	 	 	1.09	 	 	 	0.00	 
	$	17.00	 	 	 	3.70	 	 	 	2.40	 	 	 	0.79	 	 	 	0.00	 
	$	18.00	 	 	 	3.11	 	 	 	1.95	 	 	 	0.58	 	 	 	0.00	 
	$	19.00	 	 	 	2.63	 	 	 	1.59	 	 	 	0.44	 	 	 	0.00	 
	$	20.00	 	 	 	2.24	 	 	 	1.32	 	 	 	0.34	 	 	 	0.00	 
	$	30.00	 	 	 	0.58	 	 	 	0.28	 	 	 	0.07	 	 	 	0.00	 
	$	40.00	 	 	 	0.17	 	 	 	0.08	 	 	 	0.01	 	 	 	0.00	 





The Stock Prices set forth in the first column of the table above will be adjusted on each
occasion when the Conversion Rate of the applicable Securities is adjusted under the Indenture.
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 shares of Common Stock will be
adjusted in the same manner as the Conversion Rate as set forth in Section 4.6 of the
Indenture.















 








SCHUDULE
B



The following table sets forth the increase in the Conversion Rate, expressed as a number of
additional shares of Common Stock to be received per $1,000 principal amount of 2012 Securities:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Fundamental Change Effective Date
	 	 	Stock Price	 	March 2, 2007	 	March 1, 2008	 	March 1, 2009	 	March 1, 2010	 	March 1, 2011	 	March 1, 2012
	 
	 	$	7.05	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 	 	 	36.77	 
	 
	 	$	8.00	 	 	 	28.94	 	 	 	28.81	 	 	 	28.16	 	 	 	26.79	 	 	 	24.14	 	 	 	19.89	 
	 
	 	$	9.00	 	 	 	22.97	 	 	 	22.48	 	 	 	21.42	 	 	 	19.54	 	 	 	16.07	 	 	 	6.19	 
	 
	 	$	10.00	 	 	 	18.58	 	 	 	17.87	 	 	 	16.60	 	 	 	14.48	 	 	 	10.75	 	 	 	0.00	 
	 
	 	$	11.00	 	 	 	15.26	 	 	 	14.43	 	 	 	13.06	 	 	 	10.89	 	 	 	7.23	 	 	 	0.00	 
	 
	 	$	12.00	 	 	 	12.70	 	 	 	11.82	 	 	 	10.43	 	 	 	8.31	 	 	 	4.90	 	 	 	0.00	 
	 
	 	$	13.00	 	 	 	10.69	 	 	 	9.79	 	 	 	8.43	 	 	 	6.43	 	 	 	3.36	 	 	 	0.00	 
	 
	 	$	14.00	 	 	 	9.08	 	 	 	8.20	 	 	 	6.90	 	 	 	5.04	 	 	 	2.33	 	 	 	0.00	 
	 
	 	$	15.00	 	 	 	7.79	 	 	 	6.94	 	 	 	5.71	 	 	 	4.00	 	 	 	1.65	 	 	 	0.00	 
	 
	 	$	16.00	 	 	 	6.73	 	 	 	5.92	 	 	 	4.77	 	 	 	3.21	 	 	 	1.18	 	 	 	0.00	 
	 
	 	$	17.00	 	 	 	5.86	 	 	 	5.08	 	 	 	4.01	 	 	 	2.61	 	 	 	0.87	 	 	 	0.00	 
	 
	 	$	18.00	 	 	 	5.14	 	 	 	4.40	 	 	 	3.41	 	 	 	2.14	 	 	 	0.65	 	 	 	0.00	 
	 
	 	$	19.00	 	 	 	4.52	 	 	 	3.83	 	 	 	2.92	 	 	 	1.78	 	 	 	0.51	 	 	 	0.00	 
	 
	 	$	20.00	 	 	 	4.00	 	 	 	3.36	 	 	 	2.52	 	 	 	1.49	 	 	 	0.40	 	 	 	0.00	 
	 
	 	$	30.00	 	 	 	1.44	 	 	 	1.12	 	 	 	0.75	 	 	 	0.40	 	 	 	0.11	 	 	 	0.00	 
	 
	 	$	40.00	 	 	 	0.61	 	 	 	0.46	 	 	 	0.29	 	 	 	0.15	 	 	 	0.04	 	 	 	0.00	 





The Stock Prices set forth in the first column of the table above will be adjusted on each
occasion when the Conversion Rate of the applicable Securities is adjusted under the Indenture.
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 shares of Common Stock will be
adjusted in the same manner as the Conversion Rate as set forth in Section 4.6 of the
Indenture.