jrcc_8k-ex0401.htm


    

      
        
          
            

          
Exhibit 4.1


      

      


       

       

       

       

       

       

       

       

       

       

      
        

        

      

       

      JAMES
RIVER COAL COMPANY

      


      and

      


      U.S.
BANK NATIONAL ASSOCIATION

      


      as
Trustee

      

         

        
          

        



       

      INDENTURE

       

      Dated as
of November 20, 2009

      

        
 

       

      4.50%
Convertible Senior Notes due 2015

       

      


      
        

        

      

      
        


      

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
           


          
          

        

        
           


        

      


      TABLE
OF CONTENTS

       

      


       

      
        
          	 	 	

                  Page

                
	 	 	 
	
                  I.

                	
                  DEFINITIONS
      AND INCORPORATION BY REFERENCE

                	
                  1

                
	 
      	 
      	 
      
	 
      	
                  1.01
      Definitions.

                	
                  1

                
	 
      	
                  1.02
      Other Definitions.

                	
                  8

                
	 
      	
                  1.03
      Incorporation by Reference of Trust Indenture Act.

                	
                  9

                
	 
      	
                  1.04
      Rules of Construction.

                	
                  10

                
	 
      	 
      	 
      
	
                  II.

                	
                  THE
      SECURITIES

                	
                  10

                
	 
      	 
      	 
      
	 
      	
                  2.01
      Form and Dating.

                	
                  10

                
	 
      	
                  2.02
      Execution and Authentication.

                	
                  11

                
	 
      	
                  2.03
      Registrar, Paying Agent, Bid Solicitation Agent and Conversion
      Agent.

                	
                  12

                
	 
      	
                  2.04
      Paying Agent to Hold Money in Trust.

                	
                  12

                
	 
      	
                  2.05
      Securityholder Lists.

                	
                  13

                
	 
      	
                  2.06
      Transfer and Exchange.

                	
                  13

                
	 
      	
                  2.07
      Replacement Securities.

                	
                  13

                
	 
      	
                  2.08
      Outstanding Securities.

                	
                  14

                
	 
      	
                  2.09
      Securities Held by the Company or an Affiliate.

                	
                  14

                
	 
      	
                  2.10
      Temporary Securities.

                	
                  15

                
	 
      	
                  2.11
      Cancellation.

                	
                  15

                
	 
      	
                  2.12
      Defaulted Interest.

                	
                  15

                
	 
      	
                  2.13
      CUSIP Numbers.

                	
                  16

                
	 
      	
                  2.14
      Deposit of Moneys.

                	
                  16

                
	 
      	
                  2.15
      Book-Entry Provisions for Global Securities.

                	
                  16

                
	 
      	
                  2.16
      Special Transfer Provisions.

                	
                  17

                
	 
      	
                  2.17
      Restrictive Legends.

                	
                  18

                
	 
      	
                  2.18
      Ranking.

                	
                  19

                
	 
      	 
      	 
      
	
                  III.

                	
                  REDEMPTION
      AND REPURCHASE

                	
                  19

                
	 
      	 
      	 
      
	 
      	
                  3.01
      No Redemption.

                	
                  19

                
	 
      	
                  3.02
      Repurchase at Option of Holder Upon a Fundamental Change.

                	
                  19

                
	 
      	 
      	 
      
	
                  IV.

                	
                  COVENANTS

                	
                  24

                
	 
      	 
      	 
      
	 
      	
                  4.01
      Payment of Securities.

                	
                  24

                
	 
      	
                  4.02
      Maintenance of Office or Agency.

                	
                  24

                
	 
      	
                  4.03
      Rule 144A Information and Annual Reports.

                	
                  25

                
	 
      	
                  4.04
      Compliance Certificate.

                	
                  25

                
	 
      	
                  4.05
      Stay, Extension and Usury Laws.

                	
                  26

                
	 
      	
                  4.06
      Corporate Existence.

                	
                  26

                
	 
      	
                  4.07
      Notice of Default.

                	
                  26

                
	 
      	
                  4.08
      Further Instruments and Acts.

                	
                  26

                


        


        
          
             


          

          
            -i-

            
              

            

          

          
             


          

        


        


         

        
          	 
      	
                  4.09
      Additional Interest.

                	
                  26

                
	 
      	 
      	 
      
	
                  V.

                	
                  SUCCESSORS

                	
                  27

                
	 
      	 
      	 
      
	 
      	
                  5.01
      When Company May Merge, etc.

                	
                  27

                
	 
      	
                  5.02
      Successor Substituted.

                	
                  28

                
	 
      	 
      	 
      
	
                  VI.

                	
                  DEFAULTS
      AND REMEDIES

                	
                  29

                
	 
      	 
      	 
      
	 
      	
                  6.01
      Events of Default.

                	
                  29

                
	 
      	
                  6.02
      Acceleration.

                	
                  31

                
	 
      	
                  6.03
      Other Remedies.

                	
                  32

                
	 
      	
                  6.04
      Waiver of Past Defaults.

                	
                  32

                
	 
      	
                  6.05
      Control by Majority.

                	
                  32

                
	 
      	
                  6.06
      Limitation on Suits.

                	
                  32

                
	 
      	
                  6.07
      Rights of Holders to Receive Payment and to Convert
      Securities.

                	
                  33

                
	 
      	
                  6.08
      Collection Suit by Trustee.

                	
                  33

                
	 
      	
                  6.09
      Trustee May File Proofs of Claim.

                	
                  33

                
	 
      	
                  6.10
      Priorities.

                	
                  34

                
	 
      	
                  6.11
      Undertaking for Costs.

                	
                  34

                
	 
      	 
      	 
      
	
                  VII.

                	
                  TRUSTEE

                	
                  34

                
	 
      	 
      	 
      
	 
      	
                  7.01
      Duties of Trustee.

                	
                  34

                
	 
      	
                  7.02
      Rights of Trustee.

                	
                  35

                
	 
      	
                  7.03
      Individual Rights of Trustee.

                	
                  37

                
	 
      	
                  7.04
      Trustee’s Disclaimer.

                	
                  37

                
	 
      	
                  7.05
      Notice of Defaults.

                	
                  37

                
	 
      	
                  7.06
      Reports by Trustee to Holders.

                	
                  37

                
	 
      	
                  7.07
      Compensation and Indemnity.

                	
                  38

                
	 
      	
                  7.08
      Replacement of Trustee.

                	
                  38

                
	 
      	
                  7.09
      Successor Trustee by Merger, etc.

                	
                  39

                
	 
      	
                  7.10
      Eligibility; Disqualification.

                	
                  39

                
	 
      	
                  7.11
      Preferential Collection of Claims Against Company.

                	
                  40

                
	 
      	 
      	 
      
	
                  VIII.

                	
                  DISCHARGE
      OF INDENTURE

                	
                  40

                
	 
      	 
      	 
      
	 
      	
                  8.01
      Termination of the Obligations of the Company.

                	
                  40

                
	 
      	
                  8.02
      Application of Trust Money.

                	
                  40

                
	 
      	
                  8.03
      Repayment to Company.

                	
                  40

                
	 
      	
                  8.04
      Reinstatement.

                	
                  41

                
	 
      	 
      	 
      
	
                  IX.

                	
                  AMENDMENTS

                	
                  41

                
	 
      	 
      	 
      
	 
      	
                  9.01
      Without Consent of Holders.

                	
                  41

                
	 
      	
                  9.02
      With Consent of Holders.

                	
                  42

                
	 
      	
                  9.03
      [Reserved]

                	
                  43

                
	 
      	
                  9.04
      Revocation and Effect of Consents.

                	
                  43

                


        


        
          
             


          

          
            -ii-

            
              

            

          

          
             


          

        


         

        
          	 
      	
                  9.05
      Notation on or Exchange of Securities.

                	
                  44

                
	 
      	
                  9.06
      Trustee Protected.

                	
                  44

                
	 
      	
                  9.07
      Effect of Supplemental Indentures.

                	
                  44

                
	 
      	 
      	 
      
	
                  X.

                	
                  CONVERSION

                	
                  44

                
	 
      	 
      	 
      
	 
      	
                  10.01
      Conversion Privilege.

                	
                  44

                
	 
      	
                  10.02
      Conversion Procedure and Payment Upon Conversion.

                	
                  47

                
	 
      	
                  10.03
      Cash in lieu of Fractional Shares.

                	
                  51

                
	 
      	
                  10.04
      Taxes on Conversion.

                	
                  52

                
	 
      	
                  10.05
      Company to Provide Common Stock.

                	
                  52

                
	 
      	
                  10.06
      Adjustment of Conversion Rate.

                	
                  52

                
	 
      	
                  10.07
      No Adjustment.

                	
                  61

                
	 
      	
                  10.08
      Other Adjustments.

                	
                  62

                
	 
      	
                  10.09
      Adjustments for Tax Purposes.

                	
                  62

                
	 
      	
                  10.10
      Notice of Adjustment.

                	
                  62

                
	 
      	
                  10.11
      Notice of Certain Transactions.

                	
                  62

                
	 
      	
                  10.12
      Effect of Reclassifications, Consolidations, Mergers, Binding Share
      Exchanges or Sales on Conversion Privilege.

                	
                  63

                
	 
      	
                  10.13
      Trustee’s Disclaimer.

                	
                  64

                
	 
      	
                  10.14
      Rights Distributions Pursuant to Shareholders’ Rights
    Plans.

                	
                  65

                
	 
      	
                  10.15
      Increased Conversion Rate Applicable to Certain Securities Surrendered in
      Connection With Make-Whole Fundamental Changes.

                	
                  65

                
	 
      	 
      	 
      
	
                  XI.

                	
                  CONCERNING
      THE HOLDERS

                	
                  68

                
	 
      	 
      	 
      
	 
      	
                  11.01
      Action by Holders.

                	
                  68

                
	 
      	
                  11.02
      Proof of Execution by Holders.

                	
                  68

                
	 
      	
                  11.03
      Persons Deemed Absolute Owners.

                	
                  69

                
	 
      	 
      	 
      
	
                  XII.

                	
                  HOLDERS’
      MEETINGS.

                	
                  69

                
	 
      	 
      	 
      
	 
      	
                  12.01
      Purpose of Meetings.

                	
                  69

                
	 
      	
                  12.02
      Call of Meetings by Trustee.

                	
                  70

                
	 
      	
                  12.03
      Call of Meetings by Company or Holders.

                	
                  70

                
	 
      	
                  12.04
      Qualifications for Voting.

                	
                  70

                
	 
      	
                  12.05
      Regulations.

                	
                  70

                
	 
      	
                  12.06
      Voting.

                	
                  71

                
	 
      	
                  12.07
      No Delay of Rights by Meeting.

                	
                  71

                
	 
      	 
      	 
      
	
                  XIII.

                	
                  MISCELLANEOUS

                	
                  72

                
	 
      	 
      	 
      
	 
      	
                  13.01
      [Reserved]

                	
                  72

                
	 
      	
                  13.02
      Notices.

                	
                  72

                
	 
      	
                  13.03
      Communication by Holders with Other Holders.

                	
                  73

                
	 
      	
                  13.04
      Certificate and Opinion as to Conditions Precedent.

                	
                  73

                
	 
      	
                  13.05
      Statements Required in Certificate or Opinion.

                	
                  74

                
	 
      	
                  13.06
      Rules by Trustee and Agents.

                	
                  74

                


        


        
          
             


          

          
            -iii-

            
              

            

          

          
             


          

        


        


         

        
          	 
      	
                  13.07
      Legal Holidays.

                	
                  74

                
	 
      	
                  13.08
      Duplicate Originals.

                	
                  74

                
	 
      	
                  13.09
      Governing Law.

                	
                  74

                
	 
      	
                  13.10
      No Adverse Interpretation of Other Agreements.

                	
                  75

                
	 
      	
                  13.11
      Successors.

                	
                  75

                
	 
      	
                  13.12
      Separability.

                	
                  75

                
	 
      	
                  13.13
      Table of Contents, Headings, etc.

                	
                  75

                
	 
      	
                  13.14
      Calculations in Respect of the Securities.

                	
                  75

                
	 
      	
                  13.15
      No Personal Liability of Directors, Officers, Employees or
      Shareholders.

                	
                  75

                
	 
      	
                  13.16
      Force Majeure.

                	
                  76

                


        

        


      

      


      
        
          
            	
                    Exhibit
      A

                  	
                    -

                  	
                    Form
      of Global Security

                  
	
                    Exhibit
      B-1A

                  	
                    -

                  	
                    Form
      of Private Placement Legend (Securities)

                  
	
                    Exhibit
      B-1B

                  	
                    -

                  	
                    Form
      of Private Placement Legend (Common Stock)

                  
	
                    Exhibit
      B-2

                  	
                    -

                  	
                    Form
      of Legend for Global Security

                  
	
                    Exhibit
      C

                  	
                    -

                  	
                    Form
      of Notice of Transfer Pursuant to Registration
  Statement

                  


          

        

      

      



      
        
           


        

        
          -iv-

          
            

          

        

        
           


        

      


      INDENTURE, dated as of
November 20, 2009, between James River Coal Company, a Virginia corporation (the
“Company”), and U.S.
Bank National Association, a banking association organized under the laws of the
United States, as trustee (the “Trustee”).

       

      Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Company’s 4.50% Convertible Senior Notes
due 2015 (the “Securities”).

       

       

      I.    
DEFINITIONS AND INCORPORATION
BY REFERENCE

       

      1.01          Definitions.

       

      “Additional Interest” means all
amounts, if any, payable pursuant to Sections 4.09(A), 4.09(B) and 6.02(B), as
applicable.

       

      “Affiliate” means, with respect
to a specified Person, any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person.  For this purpose, “control” shall mean the power to direct
the management and policies of a Person through the ownership of securities, by
contract or otherwise.

       

      “Asset Sale Make-Whole Fundamental
Change” means a sale, transfer, lease, conveyance or other disposition of
all or substantially all of the consolidated property or assets of the Company
to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act.

       

      “Bid Solicitation Agent” means
the Person appointed by the Company to solicit bids for the Trading Price of the
Securities in accordance with Section 10.01(B)(ii).

       

      “Board of Directors” means the
Board of Directors of the Company or any committee thereof authorized to act for
it hereunder.

       

      “Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.

       

      “Capital Stock” of any Person
means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and all warrants or options
to acquire such capital stock.

       

      “Cash Settlement Averaging
Period” shall mean, (i) with respect to any Conversion Date
occurring on or after the twenty-second (22nd) Business Day immediately
preceding the Maturity Date, the twenty (20) consecutive Trading-Day period
beginning on, and including, the twenty-second (22nd) Business Day immediately
preceding the Maturity Date; or (ii) in all other cases, the twenty (20)
consecutive Trading-Day period beginning on, and including, the third (3rd)
Business Day immediately following the relevant Conversion Date.

       


      
        
           


        

        
          -1-

          
            

          

        

        
           


        

      


      “Change in Control” shall be
deemed to have occurred at such time as:

       

      (a)         any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as such term is used in Rule
13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or
more of the Company’s Voting Stock; or

       

      (b)         there
occurs a sale, transfer, lease, conveyance or other disposition of all or
substantially all of the consolidated property or assets of the Company to any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including any group acting for the purpose of acquiring, holding,
voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act; or

       

      (c)         the
Company consolidates with, or merges with or into, another Person or any Person
consolidates with, or merges with or into, the Company, unless
either:

       

      (1)         the
Persons that “beneficially owned” (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, the shares of the Company’s Voting Stock
immediately prior to such consolidation or merger, “beneficially own,” directly
or indirectly, immediately after such consolidation or merger, shares of the
surviving or continuing corporation’s Voting Stock representing at least a
majority of the total outstanding voting power of all outstanding classes of the
Voting Stock of the surviving or continuing corporation in substantially the
same proportion as such ownership immediately prior to such consolidation or
merger; or

       

      (2)         at
least ninety percent (90%) of the consideration (other than cash payments for
fractional shares or pursuant to statutory appraisal rights) in such
consolidation or merger consists of common stock and any associated rights
listed and traded on The New York Stock Exchange, The NASDAQ Global Select
Market or The NASDAQ Global Market (or any of their respective successors) (or
which will be so listed and traded when issued or exchanged in connection with
such consolidation or merger), and, as a result of such consolidation or merger,
the Securities become convertible solely into such consideration, subject to the
Company’s right to deliver cash in respect of all or a portion of its conversion
obligation as described in Section 10.02(A) (such a consolidation
or merger that satisfies the conditions set forth in this clause (2), a “Listed Stock Business
Combination”); or

       

      (d)        the
following Persons cease for any reason to constitute a majority of the Board of
Directors:

       


      
        
           


        

        
          -2-

          
            

          

        

        
           


        

      


      


       

      (1)         individuals
who on the Issue Date constituted the Board of Directors; and

       

      (2)         any
new directors whose election to the Board of Directors or whose nomination for
election by the Company’s shareholders was approved by at least a majority of
the directors of the Company then still in office, or by a nominating committee
thereof consisting of directors, either who were directors of the Company on the
Issue Date or whose election or nomination for election was previously so
approved; or

       

      (e)        the
Company is liquidated or dissolved or the holders of the Company’s Capital Stock
approve any plan or proposal for the liquidation or dissolution of the
Company.

       

      Solely
for purposes of clause (d) above, the phrase “or any
committee thereof authorized to act for it hereunder” in the definition of
“Board of Directors” shall be disregarded.

       

      “close of business” means 5:00
p.m., New York City time.

       

      “Closing Sale Price” on any
date means the per share price of the Common Stock on such date, determined (i)
on the basis of the closing per share sale price (or if no closing per share
sale price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average ask prices)
on such date on the principal U.S. national or regional securities exchange on
which the shares of Common Stock are listed; or (ii) if the shares of Common
Stock are not listed on a U.S. national or regional securities exchange, as
reported by Pink OTC Markets Inc. or a similar organization; provided, however, that in the absence
of any such report or quotation, the Closing Sale Price shall be the price
determined by a nationally recognized independent investment banking firm
retained by the Company for such purpose as most accurately reflecting the per
share price that a fully informed buyer, acting on his own accord, would pay to
a fully informed seller, acting on his own accord in an arms-length transaction,
for a share of Common Stock.

       

      “Common Stock” means the common
stock, par value $0.01 per share, of the Company at the date of this Indenture,
subject to Section 10.12.

       

      “Common Stock Change Make-Whole
Fundamental Change” means any transaction or series of related
transactions (other than a Listed Stock Business Combination), in connection
with which (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, asset
sale, lease of assets or otherwise) all of the Common Stock is exchanged for,
converted into, acquired for or constitutes solely the right to receive other
securities, other property, assets or cash.

       

      “Company” means the party named
as such above until a successor replaces it pursuant to the applicable provision
hereof and thereafter means the successor.  The foregoing sentence
shall likewise apply to any such successor or subsequent successor.

       

      “Company Order” or “Company Request” means a
written request or order signed on behalf of the Company by (i) its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Operating Officer, its Chief Accounting Officer or any Vice President and
(ii)  any such other officer designated in clause (i) of this definition or
its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, and delivered to the Trustee.

       


      
        
           


        

        
          -3-

          
            

          

        

        
           


        

      


      


       

      “Conversion Date” with respect
to a Security means the date on which a Holder satisfies all the requirements
for such conversion specified in Section 10.02(A).

       

      “Conversion Notice” means the
“Conversion Notice” attached to the Form of Security attached hereto as Exhibit
A.

       

      “Conversion Price” means, as of any date of
determination, the dollar amount derived by dividing one thousand dollars
($1,000) by the Conversion Rate in effect on such date.

       

      “Conversion Rate” shall initially be
38.7913 shares of Common Stock per $1,000 principal amount of Securities,
subject to adjustment as provided in Article X.

       

      “Conversion Value” means, as of
any Trading Day in the Security Measurement Period, the product of the Closing
Sale Price of the Common Stock and the Conversion Rate per $1,000 principal
amount of Securities in effect on such Trading Day.

       

      “Conversion Trigger Price”
means, as of any date of determination, the dollar amount derived by multiplying
the Conversion Price in effect on such date by 130%.

       

      “Corporate Trust Office of the
Trustee” means the principal office of the Trustee at which at any time
its corporate trust business shall be administered, which office as of the date
hereof is located at 100 Wall Street, Suite 1600, New York, NY 10015, Attention:
Corporate Trust Services, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and
the Company).

       

      “Daily Conversion Value” shall
mean, for each of the twenty (20) consecutive Trading Days in the Cash
Settlement Averaging Period, one twentieth (1/20th) of the product of (i) the
Conversion Rate in effect on such Trading Day and (ii) the Volume-Weighted
Average Price per share of Common Stock on such Trading Day.

       

      “Daily Settlement Amount” for
each of the twenty (20) consecutive Trading Days in the Cash Settlement
Averaging Period, shall consist of (x) cash equal to the lesser of (i) the
Specified Cash Amount, divided
by twenty (20) (such quotient being referred to as the “Daily Measurement Value”) and
(ii) the Daily Conversion Value for such Trading Day; and (y) to the extent the
Daily Conversion Value for such Trading Day exceeds the Daily Measurement Value,
a number of shares of Common Stock equal to (i) the difference between the Daily
Conversion Value and the Daily Measurement Value, divided by (ii) the
Volume-Weighted Average Price of the Common Stock on such Trading
Day.

       

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

       


      
        
           


        

        
          -4-

          
            

          

        

        
           


        

      


      “Depositary” means The
Depository Trust Company, its nominees and successors.

       

      “Ex Date” means (i) when used
with respect to any issuance or distribution, means the first date on which the
shares of Common Stock trade the 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 issuance or distribution from the Company or, if applicable,
from the seller of Common Stock on such exchange or market (in the form of due
bills or otherwise) as determined by such exchange or market, (ii) when used
with respect to any subdivision or combination of Common Stock, means the first
date on which the shares of Common Stock trade the regular way on such exchange
or in such market after the time at which such subdivision or combination
becomes effective and (iii) when used with respect to any tender offer or
exchange offer means the first date on which the shares of Common Stock trade
the regular way on such exchange or in such market after the expiration time of
such tender offer or exchange offer (as it may be amended or
extended).  For purposes of determining the Ex Date with respect to an
issuance or distribution under this Indenture, unless it has knowledge to the
contrary, the Company may conclusively assume (and such assumption shall be
binding upon the Holders) that purchases and sales of the relevant security with
respect to which such issuance or distribution is being made will settle based
on the customary settlement cycle for purchases or sales of such
security.

       

      “Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.

       

      “Fundamental Change” shall be
deemed to have occurred upon the occurrence of either a Change in Control or a
Termination of Trading.

       

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

       

      “Indenture” means this
Indenture as amended or supplemented from time to time.

       

      “Interest Payment Date” means
June 1 and December 1 of each year, beginning on June 1, 2010.

       

      “Issue Date” means November 20,
2009.

       

      “Make-Whole Fundamental Change”
means an Asset Sale Make-Whole Fundamental Change or a Common Stock Change
Make-Whole Fundamental Change.

       

      “Market Disruption Event” means
(i) a failure by the primary United States national or regional securities
exchange or market on which shares of Common Stock or the relevant securities
are listed or admitted to trading to open for trading during its regular trading
session or (ii) the occurrence or existence prior to 1:00 p.m., New York City
time, on any Scheduled Trading Day for shares of Common Stock or the relevant
securities for more than one half-hour period in the aggregate during regular
trading hours of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the relevant stock exchange or
otherwise) in shares of Common Stock (or the relevant securities) or in any
options, contracts or future contracts relating to shares of Common Stock (or
the relevant securities).

       


      
        
           


        

        
          -5-

          
            

          

        

        
           


        

      


      “Maturity Date” means December
1, 2015.

       

      “Offering Memorandum” means the
preliminary Offering Memorandum of the Company, dated November 11, 2009,
relating to the Securities.

       

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

       

      “Officer’s Certificate” means a
certificate signed by one Officer of the Company.

       

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

       

      “open of business” means 9:00
a.m., New York City time.

       

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

       

      “Purchase Notice” means a
Purchase Notice in the form set forth in the Securities.

       

      “record date” means, unless the
context requires otherwise, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock (or other security)
have the right to receive any cash, securities or other property or in which
Common Stock (or other applicable security) is exchanged for or converted into
any combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).

       

      “Record Date” for interest
payable in respect of any Security on any Interest Payment Date means May 15 or
November 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.

       

      “Responsible Officer” shall
mean, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.

       

      “Restricted Security” means a
Security that constitutes a “restricted security” within the meaning of Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request, and conclusively rely on, an Opinion of Counsel
with respect to whether any Security constitutes a Restricted
Security.

       


      
        
           


        

        
          -6-

          
            

          

        

        
           


        

      


      “Rights Agreement” means that
certain Rights Agreement between the Company and Computershare Trust Company,
N.A., as rights agent (successor to SunTrust Bank), dated May 25, 2004, as
amended on November 3, 2006, August 2, 2007 and November 3, 2009, and as the
same may be further amended, supplemented or superseded.

       

      “Rule 144A” means Rule 144A under
the Securities Act.

       

      “Scheduled Trading Day” means,
with respect to shares of Common Stock or any other security, a day that is
scheduled to be a Trading Day on the primary United States national securities
exchange or market on which shares of Common Stock or the relevant securities
are listed or admitted for trading. If shares of Common Stock or the relevant
securities are not so listed or admitted for trading, “Scheduled Trading Day” shall
mean any Business Day.

       

      “SEC” means the Securities and
Exchange Commission.

       

      “Securities” means the 4.50%
Convertible Senior Notes due 2015 issued by the Company pursuant to this
Indenture.

       

      “Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.

       

       “Securities Agent” means any
Registrar, Paying Agent, Bid Solicitation Agent, Conversion Agent or
co-Registrar or co-agent.

       

      “Significant Subsidiary” with
respect to any Person means any “subsidiary” (as defined in Rule 1-02(x) of
Regulation S-X under the Exchange Act) of such Person that constitutes a
“significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
under the Exchange Act.

       

      “Subsidiary” means (i) a
corporation a majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by the Company, by one or more subsidiaries of the Company or by the Company and
one or more of its subsidiaries or (ii) any other Person (other than a
corporation) in which the Company, one or more of its subsidiaries, or the
Company and one or more of its subsidiaries, directly or indirectly, at the date
of determination thereof, own at least a majority ownership
interest.

       

       “Termination of Trading” shall
be deemed to occur if shares of Common Stock (or other common stock into which
the Securities are then convertible (subject to the Company’s right to deliver
cash in respect of all or a portion of its conversion obligation as described in
Section 10.02(A))) are not listed for
trading on The New York Stock Exchange, The NASDAQ Global Select Market or The
NASDAQ Global Market (or any of their respective successors).

       

      “TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended and in effect from time to
time.

       

      “Trading Day” means, with
respect to shares of Common Stock or any other security, a day during which (i)
trading in shares of Common Stock or such other security generally occurs, and
(ii) a Market Disruption Event has not occurred; provided that if shares of
Common Stock or such other security is not listed for trading or quotation on or
by any exchange, bureau or other organization, “Trading Day” shall mean any
Business Day.

       


      
        
           


        

        
          -7-

          
            

          

        

        
           


        

      


      “Trading Price” means, as of
any Trading Day, the average of the secondary market bid quotations obtained by
the Bid Solicitation Agent for $5.0 million principal amount of Securities at
approximately 3:30 p.m., New York City time, on such Trading Day from three
independent nationally recognized securities dealers the Company selects; provided that if the Bid
Solicitation Agent can reasonably obtain only two such bids, then the average of
such two bids shall instead be used, and if the Bid Solicitation Agent can
reasonably obtain only one such bid, then such single bid shall be used; and
provided, further, that if, on any
Trading Day, (i) the Bid Solicitation Agent cannot reasonably obtain at
least one bid for $5.0 million principal amount of the Securities from an
independent nationally recognized securities dealer or (ii) in the
reasonable, good faith judgment of the Board of Directors, the bid quotation or
quotations that the Bid Solicitation Agent has obtained are not indicative of
the secondary market value of the Securities, then the Trading Price per $1,000
principal amount of the Securities shall be deemed to be equal to 97% of the
Conversion Value on such Trading Day.

       

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

       

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

       

      “Voting Stock” of any Person
means the total outstanding voting power of all classes of the Capital Stock of
such Person entitled to vote generally in the election of directors of such
Person.

       

      1.02          Other
Definitions.

       

      
        	
                Term

              	
                Defined in Section

              
	
                “Additional Interest
      Notice” 

              	
                4.09(D)

              
	
                “Applicable
      Price”  

              	
                10.15(D)

              
	
                “Bankruptcy
      Law”  

              	
                6.01

              
	
                “Business
      Day”  

              	
                13.07

              
	
                “Clause A
      Distribution” 

              	
                10.06(c)

              
	
                “Clause B
      Distribution” 

              	
                10.06(c)

              
	
                “Clause C
      Distribution”   

              	
                10.06(c)

              
	
                “Common Stock Private Placement
      Legend”

              	
                2.17

              
	
                “Conversion
      Agent” 

              	
                2.03

              
	
                “Custodian”   

              	
                6.01

              
	
                “Daily Measurement
      Value”      

              	
                1.01

              


      


      
        
           


        

        
          -8-

          
            

          

        

        
           


        

      


      


       

      
        	
                “Distributed
      Property” 

              	
                10.06(c)

              
	
                “Effective
      Date”  

              	
                10.15(A)

              
	
                “Event of
      Default” 

              	
                6.01

              
	
                “Full Physical
      Settlement”  

              	
                10.02(C)

              
	
                “Full Physical Settlement
      Election”      

              	
                10.02(C)

              
	
                “Fundamental Change
      Notice” 

              	
                3.02(B)

              
	
                “Fundamental Change Repurchase
      Date”

              	
                3.02(A)

              
	
                “Fundamental Change Repurchase
      Price”                            

              	
                3.02(A)

              
	
                “Fundamental Change Repurchase
      Right”                       

              	
                3.02(A)

              
	
                “Global
      Security” 

              	
                2.01

              
	
                “Legal
      Holiday” 

              	
                13.07

              
	
                “Listed Stock Business
      Combination”      

              	
                1.01

              
	
                “Make-Whole Applicable
      Increase”  

              	
                10.15(B)

              
	
                “Make-Whole Conversion
      Period”            

              	
                10.15(A)

              
	
                “Maximum Conversion
      Rate”  

              	
                10.15(B)

              
	
                “Merger
      Event”          

              	
                10.12

              
	
                “Net Share
      Settlement” 

              	
                10.02(B)

              
	
                “Net Share Settlement
      Election”  

              	
                10.02(B)

              
	
                “Notice of
      Default”  

              	
                6.01

              
	
                “Participants” 

              	
                2.15(A)

              
	
                “Paying
      Agent”                           

              	
                2.03

              
	
                “Physical
      Securities”            

              	
                2.01

              
	
                “Reference
      Property” 

              	
                10.12

              
	
                “Registrar”

              	
                2.03

              
	
                “Repurchase Upon Fundamental
      Change”  

              	
                3.02(A)

              
	
                “Resale Restriction Termination
      Date”   

              	
                2.17

              
	
                “Security Measurement
      Period”  

              	
                10.01(B)(ii)

              
	
                “Security Private Placement
      Legend”  

              	
                2.17

              
	
                “Specified Cash
      Amount”

              	
                10.02(A)

              
	
                “Spin-Off”                           

              	
                10.06(c)

              
	
                “Trading Price
      Condition” 

              	
                10.01(B)(ii)

              
	
                “Trigger
      Event”  

              	
                10.06(c)

              


      

      


      1.03         Incorporation by Reference of Trust
Indenture Act.

       

      Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.

       

      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 or a Holder;

      “indenture to be qualified”
means this Indenture;

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

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

       


      
        
           


        

        
          -9-

          
            

          

        

        
           


        

      


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

       

      1.04          Rules of
Construction.

       

      Unless
the context otherwise requires:

       

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

       

      (ii)             an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. generally accepted accounting principles in effect from
time to time;

       

      (iii)            “or”
is not exclusive;

       

      (iv)            “including”
means “including without limitation”;

       

      (v)             words
in the singular include the plural and in the plural include the
singular;

       

      (vi)            provisions
apply to successive events and transactions;

       

      (vii)           the
term “interest” means
any interest payable under the terms of the Securities, including Additional
Interest, if any, payable pursuant to Sections 4.09(A), 4.09(B) and 6.02(B), unless the context
otherwise requires;

       

      (viii)          the
term “principal” means
the principal of any Security payable under the terms of such Securities, unless
the context otherwise requires;

       

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

       

      (x)              references
to currency shall mean the lawful currency of the United States of America,
unless the context requires otherwise.

       

       

      II.     
THE
SECURITIES

       

      2.01          Form and Dating.

       

      The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form set forth in Exhibit A, which is
incorporated in and forms a part of this Indenture.  The Securities
may have notations, legends or endorsements required by law, stock exchange rule
or usage; provided that
such notations, legends or endorsements are in a form reasonably acceptable to
the Company.  Each Security shall be dated the date of its
authentication.

       


      
        
           


        

        
          -10-

          
            

          

        

        
           


        

      


      Securities
offered and sold in reliance on Rule 144A shall be issued initially in the form
of one or more Global Securities, substantially in the form set forth in Exhibit A (the “Global Security”), deposited
with the Trustee, as custodian for the Depositary, registered in the name of the
Depositary or a nominee thereof, duly executed by the Company and authenticated
by the Trustee as hereinafter provided and bearing the legends set forth in
Exhibits B-1A and B-2.  The aggregate
principal amount of the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided; provided that except as set
forth in Section 2.02, the aggregate principal
amount of the Global Security or Securities shall not exceed
$172,500,000.

       

      Securities
issued in exchange for interests in a Global Security pursuant to Section 2.15 may be issued in the
form of permanent certificated Securities in registered form in substantially
the form set forth in Exhibit A (the “Physical Securities”) and, if
applicable, bearing any legends required by Section 2.17.

       

      2.02          Execution and
Authentication.

       

      One duly
authorized Officer shall sign the Securities for the Company by manual or
facsimile signature.

       

      A
Security’s validity shall not be affected by the failure of an Officer whose
signature is on such Security to hold, at the time the Security is
authenticated, the same office at the Company.

       

      A
Security shall not be valid until duly authenticated by the manual or facsimile
signature of the Trustee.  The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.

       

      Upon a
written order of the Company signed by one Officer of the Company, the Trustee
shall authenticate Securities for original issue in the aggregate principal
amount of $172,500,000 The aggregate principal amount of Securities outstanding
at any time may not exceed $172,500,000 except as provided in this Section 2.02.

       


      
        
           


        

        
          -11-

          
            

          

        

        
           


        

      


      The
Company may, without the consent of Holders of the Securities, increase the
aggregate principal amount of Securities by issuing additional Securities in the
future on the same terms and conditions, except for any difference in the issue
price and interest accrued prior to the issue date of the additional Securities;
provided that if such
additional Securities have the same CUSIP number as the Securities initially
issued hereunder, such additional Securities must constitute part of the same
issue as the Securities initially issued hereunder for U.S. federal income tax
purposes.  The Securities initially issued hereunder and any such
additional Securities shall rank equally and ratably and shall be treated as a
single series of debt securities for all purposes under this
Indenture.

       

      Upon a
written order of the Company signed by two (2) Officers or by an Officer and an
Assistant Treasurer of the Company, the Trustee shall authenticate Securities
not bearing the Security Private Placement Legend to be issued to the
transferees when sold pursuant to an effective registration statement under the
Securities Act as set forth in Section 2.16(B).

       

      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
authenticating agent.  An authenticating agent so appointed has the
same rights as a Securities Agent to deal with the Company and its
Affiliates.

       

      If a
written order of the Company pursuant to this Section 2.02 has been, or
simultaneously is, delivered, any instructions by the Company to the Trustee
with respect to endorsement, delivery or redelivery of a Security issued in
global form shall be in writing but need not comply with Section 13.04 hereof and need not be
accompanied by an Opinion of Counsel.

       

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

       

      2.03          Registrar, Paying Agent, Bid
Solicitation Agent and Conversion Agent.

       

      The
Company shall maintain, or shall cause to be maintained, (i) an office or agency
in The Borough of Manhattan, The City of New York, where Securities may be
presented for registration of transfer or for exchange (“Registrar”), (ii) an office or
agency in The Borough of Manhattan, The City of New York, where Securities may
be presented for payment (“Paying Agent”) and (iii) an
office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented for conversion (“Conversion
Agent”).  The Registrar shall keep a register of the Securities
and of their transfer and exchange.  The Company may appoint or change
one or more co-Registrars, one or more additional paying agents and one or more
additional conversion agents without notice and may act in any such capacity on
its own behalf.  The term “Registrar” includes any
co-Registrar; the term “Paying
Agent” includes any additional paying agent; and the term “Conversion Agent” includes any
additional conversion agent.

       

      The
Company shall enter into an appropriate agency agreement with any agent not a
party to this Indenture.  Such agency 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, Bid Solicitation Agent or Conversion Agent, the Trustee shall act as
such.

       

      The
Company initially appoints the Trustee as Paying Agent, Registrar, Bid
Solicitation Agent and Conversion Agent.

       

      2.04          Paying Agent to Hold Money in
Trust.

       

      Each
Paying Agent shall hold in trust for the benefit of the Securityholders or the
Trustee all moneys held by the Paying Agent for the payment of the Securities,
and shall notify the Trustee of any Default by the Company in making any such
payment.  While any such Default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee.  The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds so paid by it.  Upon payment over to
the Trustee, the Paying Agent shall have no further liability for such
money.  If the Company acts as Paying Agent, it shall segregate and
hold as a separate trust fund all money held by it as Paying Agent.

       


      
        
           


        

        
          -12-

          
            

          

        

        
           


        

      


      2.05          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
Securityholders.  If the Trustee is not the Registrar, the Company
shall furnish, or shall cause to be furnished, to the Trustee before each
Interest Payment Date and at such other times as the Trustee may request in
writing a list, in such form and as of such date as the Trustee may reasonably
require, of the names and addresses of Securityholders appearing in the security
register of the Registrar.

       

      2.06          Transfer and
Exchange.

       

      Subject
to Sections 2.15 and 2.16 hereof, where Securities
are presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met.  To permit
registrations of transfer and exchanges, the Trustee shall authenticate
Securities at the Registrar’s request or upon the Trustee’s receipt of a Company
Order therefor.  The Company, the Registrar or the Trustee, as the
case may be, shall not be required to register the transfer of or exchange any
Security for which a Purchase Notice has been delivered, and not withdrawn, in
accordance with this Indenture, except to the unrepurchased portion of
Securities being repurchased in part.

       

      No
service charge shall be made for any transfer, exchange or conversion of
Securities, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge that may be imposed in connection
with any transfer, exchange or conversion of Securities, other than exchanges
pursuant to Sections
2.10, 3.02, 9.05 or 10.02, not involving any
transfer.

       

      2.07          Replacement
Securities.

       

      If the
Holder of a Security claims that the Security has been mutilated, lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate, at the Holder’s expense, a replacement Security upon surrender to
the Trustee of the mutilated Security, or upon delivery to the Trustee of
evidence of the loss, destruction or theft of the Security satisfactory to the
Trustee and the Company.  In the case of a lost, destroyed or
wrongfully taken Security, if required by the Trustee or the Company, indemnity
(including in the form of a bond) must be provided by the Holder that is
reasonably satisfactory to the Trustee and the Company to indemnify and hold
harmless the Company, the Trustee or any Securities Agent from any loss which
any of them may suffer if such Security is replaced.

       

      In case
any such mutilated, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security when due.

       

      Every
replacement Security is an additional obligation of the Company only as provided
in Section 2.08.

       


      
        
           


        

        
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      2.08          Outstanding
Securities.

       

      Securities
outstanding at any time are all the Securities authenticated by the Trustee
except for those converted, those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not
outstanding.  Except to the extent provided in Section 2.09, a Security does not
cease to be outstanding because the Company or one of its Subsidiaries or
Affiliates holds the Security.

       

      If a
Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Security is held by a protected purchaser.

       

      If the
Paying Agent (other than the Company) holds on a Fundamental Change Repurchase
Date or Maturity Date, money sufficient to pay the aggregate Fundamental Change
Repurchase Price or principal amount (plus accrued and unpaid interest, if any)
as the case may be, with respect to all Securities to be purchased or paid on
such Fundamental Change Repurchase Date or Maturity Date, as the case may be, in
each case, payable as herein provided on such Fundamental Change Repurchase Date
or Maturity Date, then (unless there shall be a Default in the payment of such
aggregate Fundamental Change Repurchase Price or principal amount, or of such
accrued and unpaid interest), except as otherwise provided herein, on and after
such date such Securities shall be deemed to be no longer outstanding, interest
on such Securities shall cease to accrue, and such Securities shall be deemed
paid whether or not such Securities are delivered to the Paying
Agent.  Thereafter, all rights of the Holders of such Securities shall
terminate with respect to such Securities, other than the right to receive the
Fundamental Change Repurchase Price or principal amount, as the case may be,
plus, if applicable, such accrued and unpaid interest, in accordance with this
Indenture.

       

      If a
Security is converted in accordance with Article X then, from and after the
time of such conversion on the Conversion Date, such Security shall cease to be
outstanding, and interest, if any, shall cease to accrue on such Security unless
there shall be a Default in the payment or delivery of the consideration payable
and/or deliverable hereunder upon such conversion.

       

      2.09          Securities Held by the Company or an
Affiliate.

       

      In
determining whether the Holders of the required aggregate principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Subsidiaries or Affiliates shall be considered as
though not outstanding, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded.  Securities so owned which have been
pledged in good faith may be considered to be outstanding for purposes of this
Section 2.09 if the pledgee
establishes, to the satisfaction of the Trustee, the pledgee’s right so to
concur with respect to such Securities and that the pledgee is not, and is not
acting at the direction or on behalf of, the Company, any other obligor on the
Securities, an Affiliate of the Company or an Affiliate of any such other
obligor.  In case of a dispute as to whether the pledgee has
established the foregoing, any decision by the Trustee taken upon the advice of
counsel shall provide full protection to the Trustee.  Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of any of the above described Persons;
and, subject to Section 7.01 and Section 7.02, the Trustee shall be
entitled to accept such Officer’s Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are outstanding for the purpose of any such determination.

       


      
        
           


        

        
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      2.10          Temporary
Securities.

       

      Until
definitive Securities are ready for delivery, the Company may prepare and the
Trustee shall, upon receipt of a Company Order therefor, authenticate temporary
Securities.  Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities.  Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of a Company Order therefor,
shall authenticate definitive Securities in exchange for temporary
Securities.  Until so exchanged, each temporary Security shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities, and such temporary Security shall be exchangeable for definitive
Securities in accordance with the terms of this Indenture.

       

      2.11          Cancellation.

       

      The
Company at any time may deliver Securities to the Trustee for
cancellation.  The Registrar, Paying Agent and Conversion Agent shall
forward to the Trustee any Securities surrendered to them for transfer,
exchange, payment or conversion.  The Trustee shall promptly cancel
all Securities surrendered for transfer, exchange, payment, conversion or
cancellation in accordance with its customary procedures.  The Company
may not issue new Securities to replace Securities that it has paid or delivered
to the Trustee for cancellation or that any Securityholder has converted
pursuant to Article
X.  All
cancelled Securities held by the Trustee shall be disposed of in accordance with
its customary procedure for the disposal of cancelled securities, and
certification of such disposal shall be delivered by the Trustee to the Company
unless the Company shall, by a Company Order, direct that cancelled Securities
be returned to it.

       

      2.12          Defaulted
Interest.

       

      If and to
the extent the Company defaults in a payment of interest on the Securities, the
Company shall pay in cash the defaulted interest in any lawful manner plus, to
the extent not prohibited by applicable statute or case law, interest on such
defaulted interest at the rate provided in the Securities.  The
Company may pay the defaulted interest (plus interest on such defaulted
interest) to the Persons who are Securityholders on a subsequent special record
date.  The Company shall fix such special record date and payment
date.  At least fifteen (15) calendar days before the special record
date, the Company shall mail to Securityholders a notice that states the special
record date, payment date and amount of interest to be paid.  Upon the
due payment in full, interest shall no longer accrue on such defaulted interest
pursuant to this Section
2.12.

       


      
        
           


        

        
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      2.13          CUSIP Numbers.

       

      The
Company in issuing the Securities may use one or more “CUSIP” numbers, and, if
so, the Trustee shall use the CUSIP numbers in notices as a convenience to
Holders; provided,
however, that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed on the notice or on the Securities;
provided further that
reliance may be placed only on the other identification numbers printed on the
Securities, and the effectiveness of any such notice shall not be affected by
any defect in, or omission of, such CUSIP numbers.  The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.

       

      2.14          Deposit of
Moneys.

       

      Prior to
11:00 A.M., New York City time, on each Interest Payment Date, the Maturity Date
or any Fundamental Change Repurchase Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust in accordance with Section 2.04) money, in funds
immediately available on such date, sufficient to make cash payments, if any,
due on such Interest Payment Date, the Maturity Date or such Fundamental Change
Repurchase Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date, the
Maturity Date or such Fundamental Change Repurchase Date, as the case may
be.

       

      If any
Interest Payment Date, the Maturity Date or any Fundamental Change Repurchase
Date falls on a date that is not a Business Day, the payment due on such
Interest Payment Date, the Maturity Date or such Fundamental Change Repurchase
Date, as the case may be, shall be postponed until the next succeeding Business
Day, and no interest or other amount shall accrue as a result of such
postponement.

       

      2.15          Book-Entry Provisions for Global
Securities.

       

      (A)           The
Global Securities initially shall (1) be registered in the name of the
Depositary or the nominee of the Depositary, (2) be delivered to the Trustee as
custodian for the Depositary and (3) bear legends as set forth in Section 2.17.

       

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

       

      (B)           Transfers
of Global Securities shall be limited to transfers in whole, but not in part, to
the Depositary, its successors or their respective nominees.  In
addition, one or more Physical Securities shall be transferred to beneficial
owners, as identified by the Depositary, in exchange for their beneficial
interests in Global Securities only if (4) the Depositary notifies the Company
that the Depositary is unwilling or unable to continue as depositary for any
Global Security, or the Depositary ceases to be a “clearing agency” registered
under Section 17A of the Exchange Act, and, in either case, a successor
Depositary is not appointed by the Company within ninety (90) days of such
notice or cessation or (5) an Event of Default has occurred and is continuing
and the Registrar has received a written request from the beneficial owner of
the relevant Securities to issue Physical Securities.

       


      
        
           


        

        
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      (C)           In
connection with the transfer of a Global Security in its entirety to beneficial
owners pursuant to Section 2.15(B), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations.

       

      (D)           Any
Physical Security delivered in exchange for an interest in a Global Security
that bears the Security Private Placement Legend pursuant to Section 2.15(B) shall, except as
otherwise provided by Section 2.16, bear the Security
Private Placement Legend.

       

      (E)           The
Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through
Participants, to take any action which a Holder is entitled to take under this
Indenture or the Securities.

       

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

       

      (G)           Neither
the Trustee nor any Securities Agent shall have any responsibility for any
actions taken or not taken by the Depositary.

       

      2.16          Special Transfer
Provisions.

       

      (A)           Restrictions on Transfer and Exchange
of Global Securities.  Notwithstanding any other provisions of
this Indenture, but except as provided in Section 2.15(B), 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)           Private Placement
Legend.  Upon the transfer, exchange or replacement of
Securities not bearing the Security Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Security Private
Placement Legend.  Upon the transfer, exchange or replacement of
Securities bearing the Security Private Placement Legend, the Registrar or
co-Registrar shall deliver only Securities that bear the Security Private
Placement Legend unless (6) the requested transfer is after the Resale
Restriction Termination Date, (7) there is delivered to the Trustee and the
Company an opinion of counsel reasonably satisfactory to the Company and
addressed to the Company to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (8) such Security has been sold pursuant to
an effective registration statement under the Securities Act and the Holder
selling such Securities has delivered to the Registrar or co-Registrar a notice
in the form of Exhibit
C
hereto.  Upon any sale or transfer of a beneficial interest in the
Securities in connection with which the Security Private Placement Legend will
be removed in accordance with this Indenture, the Trustee shall increase the
principal amount of the Global Security that does not constitute a Restricted
Security by the principal amount of such sale or transfer and likewise reduce
the principal amount of the Global Security that does constitute a Restricted
Security.

       


      
        
           


        

        
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      (C)           General.  By its
acceptance of any Security or share of Common Stock bearing the Security Private
Placement Legend or the Common Stock Private Placement Legend, each holder
thereof acknowledges the restrictions on transfer of such security set forth in
this Indenture and in the Security Private Placement Legend or Common Stock
Private Placement Legend, as applicable, and agrees that it will transfer such
security only as provided in this Indenture and as permitted by applicable
law.

       

      The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16.  The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.

       

      (D)           Transfers of Securities Held by the
Company or its Affiliates.  Any Securities or shares of Common
Stock issued upon the conversion of Securities that are purchased or owned by
the Company or any Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or resold pursuant to an
exemption from the registration requirements of the Securities Act in a
transaction that results in such Securities or shares of Common Stock, as the
case may be, no longer being Restricted Securities.

       

      (E)           Repurchases.  The
Company may, to the extent permitted by law, repurchase the Securities in the
open market or by tender offer at any price or by private agreement without
giving prior notice to Holders.  Securities surrendered to the Trustee
for cancellation may not be reissued or resold and shall be promptly cancelled
pursuant to Section
2.11.

       

      2.17          Restrictive
Legends.

       

      Each
Global Security and Physical Security that constitutes a Restricted Security
shall bear the legend (the “Security Private Placement
Legend”) as set forth in Exhibit B-1A on the face thereof until
the later of (i) the date that is one year after the last date of original
issuance of such Securities, or such other period of time as permitted by Rule
144 under the Securities Act or any successor provision thereto, and (ii) such
later date, if any, as may be required by applicable law (such date, the “Resale Restriction Termination
Date”).  Each certificate representing shares of Common Stock,
if any, issued upon conversion of any Security, shall, if such shares constitute
Restricted Securities, shall bear the legend (the “Common Stock Private Placement
Legend”) as set forth in Exhibit B-1B on the face thereof until
the Resale Restriction Termination Date.

       


      
        
           


        

        
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      Each
Global Security shall also bear the legend as set forth in Exhibit B-2.

       

      2.18          Ranking.

       

      The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time
constitutes and will constitute a senior unsecured obligation of the Company,
ranking equally with other existing and future senior unsecured indebtedness of
the Company and ranking senior to any existing or future subordinated
indebtedness of the Company.

       

      


       

       

      III.    
REDEMPTION AND
REPURCHASE

       

      3.01          No Redemption.

       

      The
Securities shall not be redeemable at the option of the Company prior to the
Maturity Date, and no sinking fund is provided for the Securities.

       

      3.02          Repurchase at Option of Holder Upon a
Fundamental Change.

       

      (A)           If
a Fundamental Change occurs, each Holder of Securities shall have the right (the
“Fundamental Change Repurchase
Right”), at such Holder’s option, to require the Company to repurchase (a
“Repurchase Upon Fundamental
Change”) all of such Holder’s Securities (or portions thereof that are
integral multiples of $1,000 in principal amount), on a date selected by the
Company (the “Fundamental
Change Repurchase Date”), which shall be no later than thirty five (35)
days, nor earlier than twenty (20) days, after the date the Fundamental Change
Notice is mailed in accordance with Section 3.02(B), at a price, payable
in cash, equal to one hundred percent (100%) of the principal amount of the
Securities (or portions thereof) to be so repurchased, plus accrued and unpaid
interest, if any, to, but excluding, the Fundamental Change Repurchase Date (the
“Fundamental Change Repurchase
Price”), upon:

       

      (i)             delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice, no
later than the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth
in the Securities or any other form of written notice substantially similar
thereto, in each case, duly completed and signed, with appropriate signature
guarantee, stating:

       

      (a)           the
certificate number(s) of the Securities which the Holder will deliver to be
repurchased, if such Securities are Physical Securities;

       


      
        
           


        

        
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      (b)           the
principal amount of Securities to be repurchased, which must be $1,000 or an
integral multiple thereof; and

       

      (c)           that
such principal amount of Securities are to be repurchased pursuant to the terms
and conditions specified in this Section 3.02; and

       

      (ii)             delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice, at
any time after the delivery of such Purchase Notice, of such Securities
(together with all necessary endorsements) with respect to which the Fundamental
Change Repurchase Right is being exercised;

       

      provided, however, that if such
Fundamental Change Repurchase Date is after a Record Date for the payment of an
installment of interest and on or before the related Interest Payment Date, then
the full amount of accrued and unpaid interest, if any, to, but excluding, such
Interest Payment Date shall be paid on such Interest Payment Date to the Holder
of record of such Securities at the close of business on such Record Date
(without any surrender of such Securities by such Holder), and the Fundamental
Change Repurchase Price shall not include any accrued but unpaid
interest.

       

      If such
Securities are held in book-entry form through the Depositary, the delivery of
any Purchase Notice, Fundamental Change Notice or notice of withdrawal pursuant
to Section 3.02(B)(x) shall comply with
applicable procedures of the Depositary.

       

      Upon such
delivery of Securities to the Company (if it is acting as its own Paying Agent)
or such Paying Agent, such Holder shall be entitled to receive, upon request,
from the Company or such Paying Agent, as the case may be, a nontransferable
receipt of deposit evidencing such delivery.

       

      Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section 3.02(A) to the Company (if it is
acting as its own Paying Agent) or to a Paying Agent designated by the Company
for such purpose in the Fundamental Change Notice shall have the right to
withdraw such Purchase Notice by delivery, at any time prior to the close of
business on the Business Day immediately preceding the Fundamental Change
Repurchase Date (or, if there shall be a Default in the payment of the
Fundamental Change Repurchase, at any time during which such Default is
continuing), of a written notice of withdrawal to the Company (if acting as its
own Paying Agent) or the Paying Agent, which notice shall contain the
information specified in Section 3.02(B)(x).

       

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

       

      (B)           Within
20 Business Days after the occurrence of a Fundamental Change, the Company shall
mail, or cause to be mailed, to all Holders of the Securities at their addresses
shown in the register of the Registrar, and to beneficial owners as required by
applicable law, a notice (the “Fundamental Change Notice”) of
the occurrence of such Fundamental Change and the Fundamental Change Repurchase
Right arising as a result thereof.  The Company shall deliver a copy
of the Fundamental Change Notice to the Trustee and shall publicly release,
through a reputable national newswire service, such Fundamental Change
Notice.  Each Fundamental Change Notice shall state:

       


      
        
           


        

        
          -20-

          
            

          

        

        
           


        

      


      (i)              the
events causing the Fundamental Change;

       

      (ii)             the
date of such Fundamental Change;

       

      (iii)            the
Fundamental Change Repurchase Date;

       

      (iv)            the
last date on which the Fundamental Change Repurchase Right may be exercised,
which shall be the Business Day immediately preceding the Fundamental Change
Repurchase Date;

       

      (v)             the
Fundamental Change Repurchase Price;

       

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

       

      (vii)           the
procedures which a Holder must follow to exercise the Fundamental Change
Repurchase Right;

       

      (viii)          that
the Fundamental Change Repurchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn will be paid as promptly as practicable,
but in no event after the later of such Fundamental Change Repurchase Date and
the time of book-entry transfer or delivery of the Security (together with all
necessary endorsements); provided, however, that if such
Fundamental Change Repurchase Date is after a Record Date for the payment of an
installment of interest and on or before the related Interest Payment Date, then
the accrued and unpaid interest, if any, to, but excluding, such Interest
Payment Date will be paid on such Interest Payment Date to the Holder of record
of such Security at the close of business on such Record Date (without any
surrender of such Securities by such Holder) and the Fundamental Change
Repurchase Price shall not include any accrued and unpaid interest;

       

      (ix)             that,
except as otherwise provided herein with respect to a Fundamental Change
Repurchase Date that is after a Record Date for the payment of an installment of
interest and on or before the related Interest Payment Date, on and after such
Fundamental Change Repurchase Date (unless there shall be a Default in the
payment of the Fundamental Change Repurchase Price), interest on Securities
subject to Repurchase Upon Fundamental Change will cease to accrue, and all
rights of the Holders of such Securities shall terminate, other than the right
to receive, in accordance herewith, the Fundamental Change Repurchase
Price;

       


      
        
           


        

        
          -21-

          
            

          

        

        
           


        

      


      (x)              that
a Holder will be entitled to withdraw its election in the Purchase Notice prior
to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, or such longer period as may be required by
law, by means of a letter or telegram, telex or facsimile transmission (receipt
of which is confirmed and promptly followed by a letter) setting forth (I) the
name of such Holder, (II) a statement that such Holder is withdrawing its
election to have Securities purchased by the Company on such Fundamental Change
Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the
certificate number(s) of such Securities to be so withdrawn, if such Securities
are Physical Securities, (IV) the principal amount of the Securities of such
Holder to be so withdrawn, which amount must be $1,000 or an integral multiple
thereof and (V) the principal amount, if any, of the Securities of such Holder
that remain subject to the Purchase Notice delivered by such Holder in
accordance with this Section
3.02, which
amount must be $1,000 or an integral multiple thereof; provided, however, that if
there shall be a Default in the payment of the Fundamental Change Repurchase
Price, a Holder shall be entitled to withdraw its election in the Purchase
Notice at any time during which such Default is continuing;

       

      (xi)             the
Conversion Rate and any adjustments to the Conversion Rate that will result from
such Fundamental Change;

       

      (xii)            that
Securities with respect to which a Purchase Notice is given by a Holder may be
converted pursuant to Article
X only if such
Purchase Notice has been withdrawn in accordance with this Section 3.02; and

       

      (xiii)           the
CUSIP number or numbers, as the case may be, of the Securities.

       

      At the
Company’s request, upon prior notice reasonably acceptable to the Trustee, the
Trustee shall mail such Fundamental Change Notice in the Company’s name and at
the Company’s expense; provided, however, that the
form and content of such Fundamental Change Notice shall be prepared by the
Company.

       

      No
failure of the Company to give a Fundamental Change Notice shall limit any
Holder’s right pursuant hereto to exercise a Fundamental Change Repurchase
Right.

       

      (C)           Subject
to the provisions of this Section 3.02, the Company shall pay,
or cause to be paid, the Fundamental Change Repurchase Price with respect to
each Security as to which the Fundamental Change Repurchase Right shall have
been exercised to the Holder thereof as promptly as practicable, but in no event
later than the later of the Fundamental Change Repurchase Date and the time of
book-entry transfer or when such Security is surrendered to the Paying Agent;
provided, however, that
if such Fundamental Change Repurchase Date is after a Record Date for the
payment of an installment of interest and on or before the related Interest
Payment Date, then the accrued and unpaid interest, if any, to, but excluding,
such Interest Payment Date will be paid on such Interest Payment Date to the
Holder of record of such Security at the close of business on such Record Date
and the Fundamental Change Repurchase Price shall not include any accrued and
unpaid interest.

       

      (D)           The
Company shall, in accordance with Section 2.14, deposit with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust in accordance with Section 2.04) money, in funds
immediately available on the Fundamental Change Repurchase Date, sufficient to
pay the Fundamental Change Repurchase Price upon Repurchase Upon Fundamental
Change for all of the Securities that are to be repurchased by the Company on
such Fundamental Change Repurchase Date pursuant to a Repurchase Upon
Fundamental Change.  The Paying Agent shall return to the Company, as
soon as practicable, any money not required for that purpose.

       


      
        
           


        

        
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      (E)           Once
the Fundamental Change Notice and the Purchase Notice have been duly given in
accordance with this Section 3.02, the Securities to be
repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the
Fundamental Change Repurchase Date, become due and payable in accordance
herewith, and, on and after such date (unless there shall be a Default in the
payment of the Fundamental Change Repurchase Price), except as otherwise
provided herein with respect to a Fundamental Change Repurchase Date that is
after a Record Date for the payment of an installment of interest and on or
before the related Interest Payment Date, such Securities shall cease to bear
interest (whether or not book-entry transfer of the Securities has been made or
the Securities have been delivered to the Paying Agent), and all rights of the
relevant Holders of such Securities shall terminate, other than the right to
receive, in accordance herewith, such consideration and any other applicable
rights under those sections set forth in the proviso in Section 8.01.

       

      (F)           Securities
with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.02 may be converted pursuant
to Article X only if such Purchase Notice
has been withdrawn in accordance with this Section 3.02.

       

      (G)           If
any Security shall not be paid upon book-entry transfer or surrender thereof for
Repurchase Upon Fundamental Change, the principal of, and accrued and unpaid
interest on, such Security shall, until paid, bear interest, payable in cash, at
the rate borne by such Security on the principal amount of such Security, and
such Security shall be convertible pursuant to Article X if any Purchase Notice with
respect to such Security is withdrawn pursuant to this Section 3.02.

       

      (H)           Any
Security which is to be submitted for Repurchase Upon Fundamental Change only in
part shall be delivered pursuant to this Section 3.02 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing, with a medallion guarantee),
and the Company shall promptly execute, and the Trustee shall promptly
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate
principal amount equal to the portion of such Security not duly submitted for
Repurchase Upon Fundamental Change.

       

      (I)           Notwithstanding
anything herein to the contrary, except in the case of an acceleration resulting
from a Default by the Company in the payment of the Fundamental Change
Repurchase Price, there shall be no purchase of any Securities pursuant to this
Section 3.02 on a Fundamental Change
Repurchase Date if, on such date, the principal amount of the Securities shall
have been accelerated in accordance with this Indenture and such acceleration
shall not have been rescinded on or prior to such date in accordance with this
Indenture.  The Paying Agent will promptly return to the respective
Holders thereof any Securities held by it during the continuance of such an
acceleration.

       


      
        
           


        

        
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      (J)           In
connection with any Repurchase Upon Fundamental Change, the Company shall, to
the extent applicable (i) comply with all applicable tender offer rules under
the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with
all other applicable laws; (ii) file a Schedule TO or any other schedules
required under the Exchange Act or any other applicable laws; and (iii)
otherwise comply with all applicable United States federal and state securities
laws in connection with any offer by the Company to purchase the
Securities.

       

       

      IV.    
COVENANTS

       

      4.01          Payment of
Securities.

       

      The
Company shall pay all amounts due with respect to the Securities on the dates
and in the manner provided in the Securities and this Indenture.  All
such amounts shall be considered paid on the date due if the Paying Agent holds
(or, if the Company is acting as Paying Agent, the Company has segregated and
holds in trust in accordance with Section 2.04) on that date money
sufficient to pay the amount then due with respect to the Securities (unless
there shall be a Default in the payment of such amounts to the respective
Holder(s)).  The Company will pay, in money of the United States that
at the time of payment is legal tender for payment of public and private debts,
all amounts due in cash with respect to the Securities, which amounts shall be
paid ii) in the case of a Global Security, by wire transfer of immediately
available funds to the account designated by the Depositary or its nominee; iii)
in the case of a Physical Security by a Holder of more than five million dollars
($5,000,000) in aggregate principal amount of Securities, by wire transfer of
immediately available funds to the account specified by such Holder or, if such
Holder does not specify an account, by mailing a check to the address of such
Holder set forth in the register of the Registrar; and iv) in the case of a
Physical Security that is held by a Holder of five million dollars ($5,000,000)
or less in aggregate principal amount of Securities, by mailing a check to the
address of such Holder set forth in the register of the Registrar.

       

      The
Company shall pay, in cash, interest on any overdue amount (including, to the
extent permitted by applicable law, overdue interest) at the rate borne by the
Securities.

       

      4.02          Maintenance of Office or
Agency.

       

      The
Company will maintain, or cause to be maintained, in The Borough of Manhattan,
The City of New York, an office or agency (which may be an office of the Trustee
or an Affiliate of the Trustee, Registrar or co-Registrar) where Securities may
be surrendered for registration of transfer or exchange, payment or
conversion.  The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency.  If at any time the Company shall fail to maintain, or fail to
cause to maintain, any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations and surrenders may be
made or served at the Corporate Trust Office of the Trustee.  The
Company will maintain, or cause to be maintained, in the Borough of Manhattan,
The City of New York, an office or agency where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served,
provided that such office or agency may instead be at the principal office of
the Company located in the United States.

       


      
        
           


        

        
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      The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York for such purposes.  The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.

       

      The
Company hereby designates the Corporate Trust Office of the Trustee as an agency
of the Company in accordance with Section 2.03.

       

      4.03          Rule 144A Information and Annual
Reports.

       

      (A)           At
any time when the Company is not subject to the reporting requirements of the
Exchange Act, the Company shall promptly provide to the Trustee and shall, upon
request, provide to any Holder, beneficial owner or prospective purchaser of
Securities or shares of Common Stock issued upon conversion of any Securities,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Securities or shares of Common
Stock pursuant to Rule 144A.  The Company shall take such further
action as any Holder or beneficial holder of such Securities or shares of Common
Stock may reasonably request in writing to the extent required from time to time
to enable such Holder or beneficial holder to sell its Securities or shares of
Common Stock in accordance with Rule 144A, as such rule may be amended from time
to time.

       

      (B)           The
Company shall deliver to the Trustee, no later than the time such report is
required to be filed with the SEC pursuant to the Exchange Act, a copy of each
report the Company is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act (after giving effect to any grace period provided by
Rule 12b-25 under the Exchange Act), and shall otherwise comply with the
requirements of TIA § 314(a); provided, however, that each
such report will be deemed to be so delivered to the Trustee if the Company
files such report with the SEC through the SEC’s EDGAR database no later than
the time such report is required to be filed with the SEC pursuant to the
Exchange Act (taking into account any applicable grace periods provided
thereunder).

       

      (C)           The
Company shall promptly furnish to the Trustee copies of its annual report to
shareholders, containing audited financial statements, and any other financial
reports which it furnishes to its shareholders.

       

      (D)           Delivery
of such reports, information and documents to the Trustee pursuant to this Section 4.03 is for informational
purposes only, and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on an Officer’s Certificates).

       

      4.04          Compliance
Certificate.

       

      The
Company shall deliver to the Trustee, within one hundred and twenty (120)
calendar days after the end of each fiscal year of the Company, a certificate of
two (2) or more Officers stating whether or not the signatories to such
Officer’s Certificate have actual knowledge of any Default or Event of Default
by the Company in performing any of its obligations under this Indenture or the
Securities.  If such signatories do know of any such Default or Event
of Default, then such certificate shall describe the Default or Event of Default
and its status.

       


      
        
           


        

        
          -25-

          
            

          

        

        
           


        

      


      4.05          Stay, Extension and Usury
Laws.

       

      The
Company covenants (to the extent that it may lawfully do so) that it will 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 wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company (in each case,
to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.

       

      4.06          Corporate
Existence.

       

      Subject
to Article V, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, in accordance with its organizational documents,
and the rights (charter and statutory), licenses and franchises of the Company;
provided, however, that the Company
shall not be required to preserve any such right, license or franchise if in the
judgment of the Board of Directors such preservation or existence is not
material to the conduct of business of the Company.

       

      4.07          Notice of
Default.

       

      Upon the
Company becoming aware of the occurrence of any Default or Event of Default, the
Company shall give prompt written notice of such Default or Event of Default,
and any remedial action proposed to be taken, to the Trustee.

       

      4.08          Further Instruments and
Acts.

       

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

       

      4.09          Additional
Interest.

       

      (A)           If,
at any time during the six-month period beginning on, and including, the date
which is six months after the last date of original issuance of the Securities,
the Company fails to timely file any document or report that the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than current reports on Form 8-K), or the Securities are
not otherwise freely tradable by Holders, other than the Company’s Affiliates
(as a result of restrictions pursuant to U.S. securities law or the terms of
this Indenture or the Securities), the Company shall pay Additional Interest on
the Securities at a rate of 0.50% per annum of the principal amount of
Securities outstanding for each day during such period for which the Company’s
failure to file has occurred and is continuing or the Securities are not
otherwise freely tradable by Holders, other than the Company’s
Affiliates.

       


      
        
           


        

        
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      (B)           If,
and for so long as, the Security Private Placement Legend has not been removed
from the Securities in accordance with Section
2.16(B)
or Section
2.17,
the Securities are assigned the restricted CUSIP number or the Securities are
not otherwise freely tradable by Holders other than the Company’s Affiliates
(without restrictions pursuant to U.S. securities laws or the terms of this
Indenture or the Securities), as of the 365th day after the last date of
original issuance of the Securities, the Company shall pay Additional Interest
on the Securities at a rate of 0.50% per annum of the principal amount of
Securities outstanding for each day after the 365th day after the last date of
original issuance of the Securities until (1) the Security Private Placement
Legend has been removed in accordance with
Section 2.16(B)
or Section
2.17,
(2) the Securities are assigned an unrestricted CUSIP number and (3) the
Securities are otherwise freely tradable by Holders
other than the Company’s Affiliates (without restrictions pursuant to U.S.
securities law or the terms of this Indenture or the Securities).

       

      (C)           Additional
Interest payable in accordance with Sections 4.09(A) and 4.09(B) shall be payable in
arrears on each Interest Payment Date for the Securities following accrual in
the same manner as regular interest on the Securities and shall be in addition
to, not in lieu of, any Additional Interest that may accrue under Section 6.02(B) as the sole remedy
relating to the Company’s failure to comply with Section 4.03(B).

       

      (D)           In
the event that the Company is required to pay Additional Interest to Holders of
Securities (whether pursuant to this Section 4.09 or Section 6.02(B)), the Company shall provide
written notice (“Additional
Interest Notice”) to the Trustee of its obligation to pay Additional
Interest no later than fifteen (15) calendar days prior to the proposed payment
date for the Additional Interest.  Each Additional Interest Notice
shall set forth the amount of Additional Interest to be paid by the Company on
such payment date.  The Trustee shall not at any time be under any
duty or responsibility to any Holder to determine the amount of Additional
Interest, or with respect to the nature, extent or calculation of the amount of
Additional Interest owed, or with respect to the method employed in such
calculation of the Additional Interest.

       

       

      V.    
SUCCESSORS

       

      5.01          When Company May Merge,
etc.

       

      The
Company shall not consolidate with, or merge with or into, or sell, transfer,
lease, convey or otherwise dispose of all or substantially all of the
consolidated property or assets of the Company to another Person, whether in a
single transaction or series of related transactions, unless (i) the Company is
the continuing corporation or such other Person is a corporation organized and
existing under the laws of the United States of America, any state of the United
States of America or the District of Columbia, and such other Person assumes by
supplemental indenture all the obligations of the Company under the Securities
and this Indenture and (ii) immediately after giving effect to such
transaction or series of transactions, no Default or Event of Default shall
exist.

       


      
        
           


        

        
          -27-

          
            

          

        

        
           


        

      


      For
purposes of this Section
5.01, the sale,
transfer, lease, conveyance or disposition of all or substantially all of the
properties or assets of one or more Subsidiaries of the Company to another
Person, which properties or assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties or
assets of the Company on a consolidated basis, shall be deemed to be the sale,
transfer, lease, conveyance or disposition of all or substantially all of the
consolidated properties or assets of the Company to another Person.

       

      The
Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officer’s Certificate to the foregoing effect and an Opinion of
Counsel (which may rely upon such Officer’s Certificate as to the absence of
Defaults and Events of Default) stating that the proposed transaction and such
supplemental indenture will, upon consummation of the proposed transaction,
comply with this Indenture.

       

      5.02          Successor
Substituted.

       

      In case
of any such consolidation, merger or any sale, transfer, lease, conveyance or
other disposition of all or substantially all of the consolidated property or
assets of the Company and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
accrued and unpaid interest on all of the Securities, the due and punctual
payment of the Fundamental Change Repurchase Price with respect to all
Securities repurchased on each Fundamental Change Repurchase Date, the due and
punctual delivery or payment, as the case may be, of any consideration due upon
conversion of the Securities and the due and punctual performance of all of the
covenants and conditions of this Indenture and the Securities to be performed by
the Company, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, except in the case of a lease of all or substantially all of the
Company’s consolidated properties or assets.  Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Securities that previously shall have been
signed and delivered by the Officers of the Company to the Trustee for
authentication, and any Securities that such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose.  All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.  In the event of any such
consolidation, merger or any sale, transfer, conveyance or other disposition
(but not in the case of a lease), upon compliance with this Article V the Person named as the
“Company” in the first paragraph of this Indenture or any successor that shall
thereafter have become such in the manner prescribed in this Article V may be dissolved, wound up
and liquidated at any time thereafter and, except in the case of a lease, such
Person shall be released from its liabilities as obligor and maker of the
Securities and its obligations under this Indenture shall
terminate.

       


      
        
           


        

        
          -28-

          
            

          

        

        
           


        

      


      In case
of any such consolidation, merger or any sale, transfer, lease, conveyance or
other disposition, such changes in phraseology and form (but not in substance)
may be made in the Securities thereafter to be issued as may be
appropriate.

       

       

      VI.    
DEFAULTS AND
REMEDIES

       

      6.01          Events of
Default.

       

      An “Event of Default” occurs
if:

       

      (i)              the
Company fails to pay the principal or the Fundamental Change Repurchase Price of
any Security when the same becomes due and payable, whether on the Maturity Date
or a Fundamental Change Repurchase Date, upon acceleration or
otherwise;

       

      (ii)             the
Company fails to pay an installment of interest on any Security when due, if
such failure continues for thirty (30) days after the date when
due;

       

      (iii)            the
Company fails to satisfy its conversion obligations upon exercise of a Holder’s
conversion rights pursuant hereto;

       

      (iv)            the
Company fails to timely provide pursuant to Section 3.02(B) a Fundamental Change
Notice, as required by the provisions of this Indenture, or fails to timely
provide any notice pursuant to, and in accordance with, Section 10.01(B)(iii), Section 10.01(B)(iv) or Section 10.15(E);

       

      (v)             the
Company fails to comply with its obligations under ArticleV;

       

      (vi)            the
Company fails to comply with any other term, covenant or agreement set forth in
the Securities or this Indenture and such failure continues for the period, and
after the notice, specified in the last paragraph of this Section 6.01;

       

      (vii)           the
Company or any of its Subsidiaries defaults in the payment when due, after the
expiration of any applicable grace period, of principal of, or premium, if any,
or interest on, indebtedness for money borrowed, in the aggregate principal
amount then outstanding of ten million dollars ($10,000,000) or more, or the
acceleration of indebtedness of the Company or any of its Subsidiaries for money
borrowed in such aggregate principal amount or more so that it becomes due and
payable before the date on which it would otherwise become due and payable and
such default is not cured or waived, or such acceleration is not rescinded for
the period, and after the notice, specified in the last paragraph of this Section 6.01;

       

      (viii)          the
Company or any of its Subsidiaries fails, within thirty (30) days, to pay, bond
or otherwise discharge any final, non-appealable judgments or orders for the
payment of money the total uninsured amount of which for the Company or any of
its Subsidiaries exceeds fifteen million dollars ($15,000,000), which are not
stayed on appeal;

       


      
        
           


        

        
          -29-

          
            

          

        

        
           


        

      


      


       

      (ix)            the
Company or any of its Significant Subsidiaries or any group of Subsidiaries that
in the aggregate would constitute a Significant Subsidiary of the Company,
pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or
other similar law now or hereafter in effect or otherwise, either:

       

      (A)          commences
a voluntary case,

       

      (B)          consents
to the entry of an order for relief against it in an involuntary
case,

       

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

       

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

       

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

       

      (A)          is
for relief against the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company in an involuntary case or proceeding, or adjudicates
the Company or any of its Significant Subsidiaries or any group of Subsidiaries
that in the aggregate would constitute a Significant Subsidiary of the Company
insolvent or bankrupt,

       

      (B)          appoints
a Custodian of the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that in the aggregate would constitute a Significant Subsidiary
of the Company for all or substantially all of the consolidated property of the
Company or any such Significant Subsidiary or any group of Subsidiaries that in
the aggregate would constitute a Significant Subsidiary of the Company, as the
case may be, or

       

      (C)          orders
the winding up or liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that in the aggregate would constitute
a Significant Subsidiary of the Company,

       

      and, in
the case of each of the foregoing clauses (A), (B) and (C) of this Section 6.01(x), the order or decree
remains unstayed and in effect for at least thirty (30) consecutive
days.

       

      The term
“Bankruptcy Law” means
Title 11, U.S. Code or any similar U.S. Federal or State law for the relief of
debtors, or any analogous foreign law applicable to the Company or its
Subsidiaries, as the case may be.  The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy
Law.

       

      A Default
under clause (vi) or (vii) above shall not be an
Event of Default until (I) the Trustee notifies the Company, or the Holders of
at least twenty five percent (25%) in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee in writing, of
the Default and (II) the Default is not cured within ninety (90) days in the
case of clause (vi), or within thirty (30)
days in the case of clause (vii), after receipt of such
notice.  Such notice must specify the Default, demand that it be
remedied and state that the notice is a “Notice of
Default.”  If the Holders of at least twenty five percent (25%)
in aggregate principal amount of the outstanding Securities request the Trustee
to give such notice on their behalf, the Trustee shall do so.  When a
Default is cured, it ceases to exist for all purposes under this
Indenture.

       


      
        
           


        

        
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      6.02          Acceleration.

       

      (A)           If
an Event of Default (excluding an Event of Default specified in Section 6.01(ix) or (x) with respect to the
Company, but including an Event of Default specified in Section 6.01(ix) or (x) solely with respect to a
Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least
twenty five percent (25%) in aggregate principal amount of the Securities then
outstanding by notice to the Company and the Trustee, may declare the Securities
to be immediately due and payable in full.  Upon such declaration, the
principal of, and any accrued and unpaid interest on, all Securities shall be
due and payable immediately.  If an Event of Default specified in
Section 6.01(ix) or (x) with respect to the
Company (excluding, for purposes of this sentence, an Event of Default specified
in Section 6.01(ix) or (x) solely with respect to a
Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs, the
principal of, and accrued and unpaid interest on, all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.  The Holders of a majority in aggregate
principal amount of the Securities then outstanding by written notice to the
Trustee may rescind or annul an acceleration and its consequences if (A) the
rescission would not conflict with any order or decree, (B) all existing Events
of Default, except the nonpayment of principal or interest that has become due
solely because of the acceleration, have been cured or waived and (C) all
amounts due to the Trustee under Section 7.07 have been
paid.

       

      (B)           Notwithstanding
the foregoing, the sole remedy for an Event of Default relating to failure to
comply with Section
4.03(B) shall,
for the first 180 days immediately following the occurrence of such an Event of
Default, consist exclusively of the right to receive Additional Interest on the
Securities at a rate per year equal to (i) 0.25% of the outstanding
principal amount of Securities for the first 90 days following the occurrence of
such Event of Default and (ii) 0.50% of the outstanding principal amount of
Securities for the next 90 days after the first 90 days following the occurrence
of such Event of Default, in each case, payable in the same manner and at the
same time as the stated interest payable on the Securities.  Such
Additional Interest shall accrue on all outstanding Securities from, and
including, the date on which such Event of Default first occurs to, and
including, the 180th day
thereafter (or such earlier date on which such Event of Default shall have been
cured or waived).  Additional Interest payable pursuant to this Section 6.02(B) shall be in addition
to, not in lieu of, any Additional Interest payable pursuant to Section 4.09(A) and Section 4.09(B).  In
addition to the accrual of Additional Interest pursuant to this Section 6.02(B), on and after the
181st day
immediately following an Event of Default relating to a failure to comply with
Section 4.03(B), such Additional
Interest will cease to accrue and, if such Event of Default has not been cured
or waived prior to such 181st day,
the Securities will be subject to acceleration as provided above.  The
provisions of this Section 6.02(B) shall not affect the
rights of Holders in the event of the occurrence of any other Event of
Default.

       


      
        
           


        

        
          -31-

          
            

          

        

        
           


        

      


      6.03          Other Remedies.

       

      Notwithstanding
any other provision of this Indenture, if an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of amounts due with respect to 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 Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.  All
remedies are cumulative.

       

      6.04          Waiver of Past
Defaults.

       

      Subject
to Sections 6.07 and 9.02, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may,
by notice to the Trustee, waive any past Default or Event of Default and its
consequences, other than v) a Default or Event of Default in the payment of the
principal of, or interest on, any Security, or in the payment of the Fundamental
Change Repurchase Price, vi) a Default or Event of Default arising from a
failure by the Company to convert any Securities in accordance with this
Indenture or vii) any Default or Event of Default in respect of any provision of
this Indenture or the Securities which, under Section 9.02, cannot be modified or
amended without the consent of the Holder of each outstanding Security
affected.  When a Default or an Event of Default is waived, it is
cured and ceases to exist for all purposes under this Indenture.

       

      6.05          Control by
Majority.

       

      The
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability
unless the Trustee is offered 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.

       

      6.06          Limitation on
Suits.

       

      Except
with respect to any proceeding instituted in accordance with Section 6.07, a Securityholder shall
not have any right to institute any proceeding under this Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy under this
Indenture unless:

       

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

       


      
        
           


        

        
          -32-

          
            

          

        

        
           


        

      


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

       

      (iii)            such
Holder or Holders offer and, if requested, provide to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or expense to
or of the Trustee in connection with pursuing such remedy; and

       

      (iv)            the
Trustee does not comply with the request within sixty (60) days after receipt of
such notice, request and offer of indemnity, and during such sixty (60) day
period, the Holders of a majority in aggregate principal amount of the
Securities then outstanding do not give the Trustee a direction inconsistent
with the request.

       

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

       

      6.07          Rights of Holders to Receive Payment
and to Convert Securities.

       

      Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of all amounts (including any principal, interest or the Fundamental
Change Repurchase Price) due with respect to the Securities, on or after the
respective due dates as provided herein, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.

       

      In
addition, notwithstanding any other provision of this Indenture, the right of
any Holder to convert the Security in accordance with this Indenture, or to
bring suit for the enforcement of such right, shall not be impaired or affected
without the consent of the Holder.

       

      6.08          Collection Suit by
Trustee.

       

      If an
Event of Default specified in Section 6.01(i) or (ii) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount due with respect to the
Securities, including any unpaid and accrued interest.

       

      6.09          Trustee May File Proofs of
Claim.

       

      The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee, any
predecessor Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company or its creditors or properties.

       

      The
Trustee may collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.

       


      
        
           


        

        
          -33-

          
            

          

        

        
           


        

      


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

       

      6.10          Priorities.

       

      If the
Trustee collects any money pursuant to this Article VI, it shall pay out the money
in the following order:

       

      
        	
                 
      

              	
                First:

              	
                to
      the Trustee for amounts due under Section 7.07;

              


      

       

      
        	
                 
      

              	
                Second:

              	
                to
      Securityholders for all amounts due and unpaid on the Securities, without
      preference or priority of any kind, according to the amounts due and
      payable on the Securities; and

              


      

       

      
        	
                 
      

              	
                Third:

              	
                the
      balance, if any, to the Company.

              


      

       

      The
Trustee, upon prior written notice to the Company, may fix a record date and
payment date for any payment by it to Securityholders pursuant to this Section 6.10.  At least
fifteen (15) days before each such record date, the Trustee shall mail to each
Holder and the Company a written notice that states such record date and payment
date and the amount of such payment.

       

      6.11          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
other than the Trustee of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, 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 6.11 does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than ten percent (10%) in aggregate principal amount of the outstanding
Securities.

       

       

      VII.    
TRUSTEE

       

      7.01          Duties of
Trustee.

       

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

       


      
        
           


        

        
          -34-

          
            

          

        

        
           


        

      


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

       

      (i)              the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and

       

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

       

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

       

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

       

      (ii)             the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section 6.05.

       

      (D)           Every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.

       

      (E)           The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.  Money held in
trust by the Trustee shall be segregated from other funds as directed in writing
by the Company or as required by law and shall be invested by the Trustee
pursuant to the written instructions of the Company reasonably satisfactory to
the Trustee.

       

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

       

      7.02          Rights of
Trustee.

       

      (A)           Subject
to Section 7.01, the Trustee may
conclusively rely on any document believed by it to be genuine and to have been
signed or presented by the proper Person.  The Trustee need not
investigate any fact or matter stated in the document; if, however, the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled during normal business hours to examine the relevant books, records and
premises of the Company, personally or by agent or attorney upon reasonable
prior notice, 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.

       


      
        
           


        

        
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      (B)           Before
the Trustee acts or refrains from acting, it may require an Officer’s
Certificate and/or an Opinion of Counsel.  The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer’s Certificate or Opinion of Counsel.

       

      (C)           Any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution.

       

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

       

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

       

      (F)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its discretion, rights or
powers conferred upon it by this Indenture; provided, that the Trustee’s
action does not constitute willful misconduct or negligence.

       

      (G)           Except
with respect to Section
4.01, the Trustee shall have no duty to inquire as to the performance of
the Company with respect to the covenants contained in Article IV.  In addition,
the Trustee shall not be deemed to have knowledge of an Event of Default except
(1) any Default or Event of Default occurring pursuant to Sections 6.01(i) or (ii) or (2) any Default or
Event of Default of which a Responsible Officer of the Trustee who shall have
direct responsibility for the administration of this Indenture shall have
received written notification or obtained actual knowledge.  Delivery
of reports, information and documents to the Trustee under Article IV (other than Sections 4.04 and 4.07) 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 on
Officer’s Certificates).

       

      (H)           Subject
to Section 7.01(A), the Trustee shall be
under no obligation to exercise any of the rights or powers vested by this
Indenture at the request or direction of any of the Holders pursuant to this
Indenture unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.

       

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

       


      
        
           


        

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

       

      7.03          Individual Rights of
Trustee.

       

      The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or any of its Affiliates
with the same rights the Trustee would have if it were not
Trustee.  Any Securities Agent may do the same with like
rights.  The Trustee, however, must comply with Sections 7.10 and 7.11.

       

      7.04          Trustee’s
Disclaimer.

       

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

       

      7.05          Notice of
Defaults.

       

      If a
Default or Event of Default occurs and is continuing as to which the Trustee has
received notice pursuant to the provisions of this Indenture, or as to which a
Responsible Officer of the Trustee who shall have direct responsibility for the
administration of this Indenture shall have actual knowledge, then the Trustee
shall mail to each Holder a notice of the Default or Event of Default within
thirty (30) days after receipt of such notice or after acquiring such knowledge,
as applicable, unless such Default or Event of Default has been cured or waived;
provided, however, that, except in the
case of a Default or Event of Default in payment or delivery of any amounts due
(including principal, interest, the Fundamental Change Repurchase Price or the
consideration due upon conversion) with respect to any Security, the Trustee may
withhold such notice if, and so long as it in good faith determines that,
withholding such notice is in the best interests of Holders.

       

      7.06          Reports by Trustee to
Holders.

       

      Within
sixty (60) days after each March 1, beginning with March 1, 2010, the Trustee
shall mail to each Securityholder if required by TIA § 313(a) a brief report
dated as of such March 1 that complies with TIA § 313(a).  In such
event, the Trustee also shall comply with TIA § 313(b).

       

      A copy of
each report at the time of its mailing to Securityholders shall be mailed by
first class mail to the Company and filed by the Trustee with the SEC and each
stock exchange, if any, on which the Securities are listed.  The
Company shall promptly notify the Trustee of the listing or delisting of the
Securities on or from any stock exchange.

       


      
        
           


        

        
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      7.07          Compensation and
Indemnity.

       

      The
Company shall pay to the Trustee from time to time such compensation for its
services as shall be agreed upon in writing.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Company shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred by it pursuant to, and in
accordance with, any provision hereof, except for any such expenses as shall
have been caused by the Trustee’s own negligence, bad faith or willful
misconduct.  Such expenses shall include the reasonable compensation
and out-of-pocket expenses of the Trustee’s agents and counsel.  The
Trustee shall provide the Company with reasonable notice of any expense not in
the ordinary course of business.

       

      The
Company shall indemnify each of the Trustee, each predecessor Trustee and their
respective agents for, and hold each of them harmless against, any and all loss,
liability, damage, claim or expense (including the reasonable fees and expenses
of counsel and taxes other than those based upon the income of the Trustee)
incurred by it in connection with the acceptance or administration of this trust
and the performance of its duties hereunder or in connection with enforcing the
provisions of this Section
7.07, including
the reasonable costs and expenses of defending itself against any claim (whether
asserted by the Company, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers and duties
hereunder.  The Company need not pay for any settlement made without
its consent.  The Trustee shall notify the Company promptly of any
claim for which it may seek indemnification.  The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through the Trustee’s negligence, bad faith or willful
misconduct.

       

      To secure
the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay amounts due on particular
Securities.

       

      The
indemnity obligations of the Company with respect to the Trustee provided for in
this Section 7.07 shall survive any
resignation or removal of the Trustee.

       

      When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(ix) or (x) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.

       

      7.08          Replacement of
Trustee.

       

      A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.

       

      The
Trustee may resign by so notifying the Company in writing thirty (30) days prior
to such resignation.  The Holders of a majority in aggregate principal
amount of the Securities then outstanding may remove the Trustee by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee with
the Company’s consent.  The Company may remove the Trustee
if:

       


      
        
           


        

        
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      (i)              the
Trustee fails to comply with Section 7.10;

       

      (ii)             the
Trustee is adjudged a bankrupt or an insolvent;

       

      (iii)            a
receiver or other public officer takes charge of the Trustee or its property;
or

       

      (iv)            the
Trustee becomes incapable of acting.

       

      If the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint a successor
Trustee.

       

      If a
successor Trustee does not take office within thirty (30) days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s
expense), the Company or the Holders of at least ten percent (10%) in aggregate
principal amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.

       

      If the
Trustee fails to comply with Section 7.10, the Company or any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.

       

      A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company.  Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture.  The successor Trustee shall mail a notice of its
succession to Securityholders.  The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.

       

      7.09          Successor Trustee by Merger,
etc.

       

      If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee, if
such successor corporation is otherwise eligible (i) hereunder and (ii) under
the TIA.

       

      7.10          Eligibility;
Disqualification.

       

      There shall at all times be a Trustee
hereunder which viii) is an entity organized and doing business under the laws
of the United States of America or of any state thereof or the District of
Columbia, ix) is authorized under such laws to exercise corporate trustee power,
x) is subject to supervision or examination by federal or state authorities and
xi) has a combined capital and surplus of at least $50 million as set forth in
its most recent published annual report of condition.  The Trustee
shall comply with TIA § 310(b).  Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA § 310(b).

       


      
        
           


        

        
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      7.11          Preferential Collection of Claims
Against Company.

       

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

       

       

      VIII.    
DISCHARGE OF
INDENTURE

       

      8.01          Termination of the Obligations of the
Company.

       

      This
Indenture shall cease to be of further effect, and the Trustee shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
if (a) either (i) all outstanding Securities (other than Securities replaced
pursuant to Section
2.07 hereof) have
been delivered to the Trustee for cancellation or (ii) all outstanding
Securities have become due and payable at their scheduled maturity, upon
conversion or upon Repurchase Upon Fundamental Change, and in either case the
Company irrevocably deposits, prior to the applicable due date, with the Trustee
or the Paying Agent (if the Paying Agent is not the Company or any of its
Affiliates) cash or, in the case of conversion, cash and/or shares of Common
Stock, if any, sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07 hereof) on the Maturity
Date, the relevant settlement date of any conversion or the Fundamental Change
Repurchase Date, as the case may be; (b) the Company pays to the Trustee all
other sums payable hereunder by the Company; (c) no Default or Event of Default
with respect to the Securities shall exist on the date of such deposit under
clause (a)(ii) above;
(d) such deposit under clause (a)(ii) above shall not
result in a breach or violation of, or constitute a Default or Event of Default
under, this Indenture; and (e) the Company has delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with; provided, however, that Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.15, 2.16, 2.17, 3.02, 4.01, 4.02, 4.05, 4.09, 7.07, 7.08, 7.10, 7.11, 13.02, 13.09 and 13.14 and Articles VIII, X, XI and XII shall survive any
discharge of this Indenture until such time as the Securities have been paid in
full and there are no Securities outstanding.

       

      8.02          Application of Trust
Money.

       

      The
Trustee shall hold in trust all money deposited with it pursuant to Section 8.01 and shall apply such
deposited money through the Paying Agent and in accordance with this Indenture
to the payment of amounts due on the Securities.

       

      8.03          Repayment to
Company.

       

      The
Trustee and the Paying Agent shall promptly notify the Company of, and pay to
the Company upon the request of the Company, any excess money held by them at
any time.  The Trustee or the Paying Agent, as the case may be, shall
provide written notice to the Company of any money that has been held by it and
has, for a period of two (2) years, remained unclaimed for the payment of the
principal of, or any accrued and unpaid interest on, the
Securities.  The Trustee and the Paying Agent shall pay to the Company
upon the written request of the Company any money held by them for the payment
of the principal of, or any accrued and unpaid interest on, the Securities that
remains unclaimed for two (2) years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may, at the
expense of the Company, cause to be published (in no event later than five (5)
days after the Company requests repayment) once in a newspaper of general
circulation in the City of New York or cause to be mailed to each Holder, notice
stating that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company.  After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
general creditors, subject to applicable law, and all liability of the Trustee
and the Paying Agent with respect to such money and payment shall, subject to
applicable law, cease.

       


      
        
           


        

        
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      8.04          Reinstatement.

       

      If the
Trustee or Paying Agent is unable to apply any money in accordance with Sections 8.01 and 8.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Sections 8.01 and 8.02 until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Sections 8.01 and 8.02; provided, however, that if the Company
has made any payment of amounts due with respect to any Securities because of
the reinstatement of its obligations, then the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.

       

       

      IX.    
AMENDMENTS

       

      9.01          Without Consent of
Holders.

       

      The
Company, with the consent of the Trustee, may amend or supplement this Indenture
or the Securities without notice to or the consent of any
Securityholder:

       

      (i)              to
comply with Section
5.01 or Section 10.12;

       

      (ii)             to
secure the obligations of the Company in respect of the Securities;

       

      (iii)            to
evidence and provide for the appointment of a successor Trustee in accordance
with Section 7.08;

       

      (iv)            to
comply with the provisions of any clearing agency, clearing corporation or
clearing system, or the requirements of the Trustee or the Registrar, relating
to transfers and exchanges of the Securities pursuant to this
Indenture;

       

      (v)             to
add to the covenants of the Company described in this Indenture for the benefit
of Securityholders or to surrender any right or power conferred upon the
Company; or

       


      
        
           


        

        
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      (vi)            to
make provision with respect to adjustments to the Conversion Rate as required by
this Indenture or to increase the Conversion Rate in accordance with this
Indenture.

       

      In addition, the Company and the
Trustee may enter into a supplemental indenture without the consent of Holders
of the Securities to (i) cure any ambiguity, defect, omission or inconsistency
in this Indenture in a manner that does not, individually or in the aggregate
with all other changes, materially and adversely affect the rights of any Holder
in any respect or (ii) to conform the Indenture or the Securities to the
description thereof contained in the Offering Memorandum under the heading
“Description of notes,” as supplemented by the related pricing term
sheet.

       

      9.02          With Consent of
Holders.

       

      The
Company may amend or supplement this Indenture or the Securities with the
written consent of the Trustee and the Holders of at least a majority in
aggregate principal amount of the outstanding Securities (including, without
limitation, consents obtained from Holders in connection with a purchase of, or
tender or exchange offer for, Securities).  Subject to Sections 6.04 and 6.07, the Holders of a
majority in aggregate principal amount of the outstanding Securities may, by
notice to the Trustee, waive by consent (including, without limitation, consents
obtained from Holders in connection with a purchase of, or tender or exchange
offer for, Securities) compliance by the Company with any provision of this
Indenture or the Securities without notice to any other
Securityholder.  Notwithstanding the foregoing or anything herein to
the contrary, without the consent of the Holder of each outstanding Security
affected, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, may not:

       

      (i)              change
the stated maturity of the principal of, or the payment date of any installment
of interest on, any Security;

       

      (ii)              reduce
the principal amount of, or any interest on, any Security;

       

      (iii)            change
the place, manner or currency of payment of principal of, or any interest on,
any Security;

       

      (iv)            impair
the right to institute suit for the enforcement of any delivery or payment on,
or with respect to, or due upon the conversion of, any Security;

       

      (v)             modify,
in a manner adverse to Holders, the provisions with respect to the right of
Holders pursuant to Section
3.02 to require
the Company to repurchase Securities upon the occurrence of a Fundamental
Change;

       

      (vi)        
   modify the provisions of Section 2.18 in a manner adverse to
Holders;

       

      (vii)           adversely
affect the right of Holders to convert Securities in accordance with Article X;

       


      
        
           


        

        
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      (viii)          reduce
the percentage in aggregate principal amount of outstanding Securities whose
Holders must consent to a modification to or amendment of any provision of this
Indenture or the Securities;

       

      (ix)             reduce
the percentage in aggregate principal amount of outstanding Securities whose
Holders must consent to a waiver of compliance with any provision of this
Indenture or the Securities or a waiver of any Default or Event of Default;
or

       

      (x)              modify
the provisions of this Indenture with respect to modification and waiver
(including waiver of a Default or an Event of Default), except to increase the
percentage required for modification or waiver or to provide for the consent of
each affected Holder.

       

      Promptly
after an amendment, supplement or waiver under Section 9.01 or this Section 9.02 becomes effective, the
Company shall mail, or cause to be mailed, to Securityholders a notice briefly
describing such amendment, supplement or waiver.  Any failure of the
Company to mail such notice shall not in any way impair or affect the validity
of such amendment, supplement or waiver.

       

      It shall
not be necessary for the consent of the Holders under this Section 9.02 to approve the particular
form of any proposed amendment, supplement or waiver, but it shall be sufficient
if such consent approves the substance thereof.

       

      9.03          [Reserved]

       

      9.04          Revocation and Effect of
Consents.

       

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

       

      After an
amendment, supplement or waiver becomes effective with respect to the
Securities, it shall bind every Holder unless such amendment, supplement or
waiver makes a change that requires, pursuant to Section 9.02, the consent of each
Holder affected.  In that case, the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and, provided that
notice of such amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder’s Security, every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.

       

      Nothing
in this Section 9.04 shall impair the
Company’s rights pursuant Section 9.01 to amend this Indenture
or the Securities without the consent of any Securityholder in the manner set
forth in, and permitted by, such Section 9.01.

       


      
        
           


        

        
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      9.05          Notation on or Exchange of
Securities.

       

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

       

      9.06          Trustee
Protected.

       

      The
Trustee shall sign any amendment, supplemental indenture or waiver authorized
pursuant to this Article
IX; provided, however, that the Trustee
need not sign any amendment, supplement or waiver authorized pursuant to this
Article IX that adversely affects the
Trustee’s rights, duties, liabilities or immunities.  The Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel as
to legal matters and an Officer’s Certificate as to factual matters that any
supplemental indenture, amendment or waiver is permitted or authorized pursuant
to this Indenture.

       

      9.07          Effect of Supplemental
Indentures.

       

      Upon the
due execution and delivery of any supplemental indenture in accordance with this
Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes, and, except as set forth in Sections 9.02 and 9.04, every Holder of
Securities shall be bound thereby.

       

       

      X.    
CONVERSION

       

      10.01        Conversion
Privilege.

       

      (A)           Subject
to the provisions of Section 3.02 and Section 10.02, the Securities shall be
convertible (1) prior to the close of business on the Business Day
immediately preceding September 1, 2015, upon satisfaction of one or more of the
conditions described in Section 10.01(B) and (2) at any
time from, and including, September 1, 2015 to, and including, the Business Day
immediately preceding the Maturity Date, irrespective of the conditions
described in Section 10.01(B), in each case, into cash,
shares of Common Stock, or a combination thereof, as described in Section 10.02, in accordance with this
Article X.

       

      (B)         (i)    
Prior to the close of business on the Business Day immediately preceding
September 1, 2015, Holders may surrender their Securities for conversion during
any calendar quarter after the calendar quarter ending December 31, 2009 (and
only during such calendar quarter), if the Closing Sale Price of the Common
Stock for each of twenty (20) or more Trading Days in a period of thirty (30)
consecutive Trading Days ending on the last Trading Day of the immediately
preceding calendar quarter exceeds the Conversion Trigger Price in effect on the
last Trading Day of the immediately preceding calendar quarter.  The
Board of Directors will make appropriate adjustments to the Closing Sale Price,
in its good faith determination, to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the
Conversion Rate where the Ex Date of the event occurs, during the thirty (30)
consecutive Trading Day period described in the preceding
sentence.  The Company shall determine at the beginning of each
calendar quarter commencing after December 31, 2009 whether the Securities may
be surrendered for conversion in accordance with this Section 10.01(B)(i) and shall notify
the Conversion Agent and the Trustee within ten (10) Business Days of the first
day of such calendar quarter if the Securities become convertible in accordance
with this Section 10.01(B)(i).

       


      
        
           


        

        
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      (ii)            Prior
to the close of business on the Business Day immediately preceding September 1,
2015, Holders may surrender their Securities for conversion during the five (5)
consecutive Business Days immediately after any five (5) consecutive Business
Day period (the “Security
Measurement Period”) in which the Trading Price per $1,000 principal
amount of Securities, as determined following a request by a Holder of
Securities in accordance with the procedures set forth in this Section 10.01(B)(ii), for each Trading
Day in such Security Measurement Period was equal to or less than 97% of the
Conversion Value of the Securities on such Trading Day (the “Trading Price
Condition”).  The Trading Prices shall be determined by the Bid
Solicitation Agent pursuant to this Section 10.01(B)(ii) and the
definition of Trading Price set forth in this Indenture.  The Company
shall provide written notice to the Bid Solicitation Agent of the three
independent nationally recognized securities dealers selected by the Company
pursuant to the definition of Trading Price, along with appropriate contact
information for each. The Bid Solicitation Agent shall have no obligation to
determine the Trading Price of the Securities in accordance with this Section 10.01(B)(ii) unless requested by the
Company, and the Company shall have no obligation to make such request unless a
Holder of at least $1.0 million aggregate principal amount of Securities then
outstanding provides the Company with reasonable evidence that the Trading Price
per $1,000 principal amount of Securities would be equal to or less than 97% of
the Conversion Value of the Securities.  Promptly after receiving such
evidence, the Company shall instruct the Bid Solicitation Agent to determine the
Trading Price of the Securities beginning on the next Trading Day and on each of
the next five Trading Days until the Trading Price Condition is no longer
satisfied.  If the Company does not so instruct the Bid Solicitation
Agent to obtain bids when required pursuant to this Section 10.01(B)(ii), the Trading
Price per $1,000 principal amount of the Securities shall be deemed to be equal
to 97% of the Conversion Value of the Securities on each Trading Day that the
Company fails to do so.  If, at any time after the Trading Price
Condition set forth above has been met, the Trading Price per $1,000 principal
amount of Securities is greater than 97% of the Conversion Value, the Company
shall so notify the Holders of the Securities, the Trustee and the Conversion
Agent (if other than the Trustee).

       

      (iii)           Prior
to the close of business on the Business Day immediately preceding September 1,
2015, if a Fundamental Change or a Make-Whole Fundamental Change occurs, or if
the Company is party to a consolidation, merger or binding share exchange
pursuant to which all of the Common Stock would be converted into or exchanged
for, or would constitute solely the right to receive, cash, securities or other
property, then a Holder may surrender its Securities for conversion at any time
during the period that begins on, and includes, the thirtieth (30th)
Business Day before the date the Company originally announces as the anticipated
effective date of the transaction and ends on, and includes, the thirtieth
(30th)
Business Day after the actual effective date of the transaction.  In
addition, if the transaction is a Make-Whole Fundamental Change, then the
Securities may also be surrendered for conversion at any time during the
Make-Whole Conversion Period, and if the transaction is a Fundamental Change,
then the Securities may also be surrendered for repurchase at any time until,
and including, the Fundamental Change Repurchase Date for such Fundamental
Change.  The Company shall notify Holders and the Trustee (a) as
promptly as practicable following the date the Company publicly announces such
transaction but in no event less than thirty (30) Business Days prior to the
anticipated effective date of such transaction or (b) if the Company does not
have knowledge of such transaction at least thirty (30) Business Days prior to
the anticipated effective date of such transaction, within one (1) Business Day
of the date upon which the Company receives notice, or otherwise becomes aware,
of such transaction, but in no event later than the actual effective date of
such transaction.

       


      
        
           


        

        
          -45-

          
            

          

        

        
           


        

      


      (iv)           Prior
to the close of business on the Business Day immediately preceding September 1,
2015, if the Company elects to:

       

      (a)       distribute
to all or substantially all holders of Common Stock any rights, options or
warrants entitling them, for a period of not more than sixty (60) days after the
record date of such distribution, to purchase or subscribe for shares of Common
Stock at a price per share less than the average of the Closing Sale Prices of
the Common Stock over the ten (10) consecutive Trading Day period ending on the
Trading Day immediately preceding the Ex Date for such distribution;
or

       

      (b)       distribute
to all or substantially all holders of Common Stock the Company’s assets, debt
securities or rights to purchase the Company’s securities, which distribution
has a per share value, as reasonably determined by the Board of Directors,
exceeding 10% of the Closing Sale Price of the Common Stock on the Trading Day
preceding the date of announcement of such distribution,

       

      then, in
each case, the Company shall mail to Holders and the Trustee written notice at
least thirty (30) Business Days before the Ex Date for such
distribution.  Once the Company has given such notice, Holders may
surrender Securities for conversion at any time until the earlier of the close
of business on the Business Day immediately preceding the Ex Date and the
Company’s announcement that such distribution will not take place, even if the
Securities are not otherwise convertible at such time.

       

      (C)           The
initial Conversion Rate shall be 38.7913 shares of Common Stock per $1,000
principal amount of Securities.  The Conversion Rate shall be subject
to adjustment in accordance with Sections 10.06 through 10.15.

       


      
        
           


        

        
          -46-

          
            

          

        

        
           


        

      


      


       

      (D)           A
Holder may convert a portion of the principal amount of a Security if such
portion is $1,000 principal amount or an integral multiple of $1,000 principal
amount.  Provisions of this Indenture that apply to conversion of all
of a Security also apply to conversion of a portion of such
Security.

       

      (E)           If
the Securities shall be convertible in accordance with this Section 10.01, the Company shall
provide written notice to the Trustee, the Conversion Agent (if other than the
Trustee) and Holders, at the addresses appearing on the Registrar’s books, and
the Company shall publicly announce, through a reputable national newswire
service, that the Securities have become convertible, stating, among other
things:

       

      (i)             the
event causing the Securities to become convertible;

       

      (ii)            the
time during which the Securities shall be convertible as a result of that
event;

       

      (iii)           if
that event is a transaction described under Section 10.01(B)(iii) or Section 10.01(B)(iv), the anticipated
effective date of the transaction; and

       

      (iv)           the
procedures Holders must follow to convert their Securities, including the name
and address of the Conversion Agent.

       

      The
Company shall mail the notice, and make the public announcement, as soon as
practicable, but in no event later than the open of business on the Business Day
immediately following the date the Securities become convertible as a result of
the event.

       

      10.02          Conversion Procedure and Payment Upon
Conversion.

       

      (A)           To
convert a Security, a Holder must (1) complete and manually sign the Conversion
Notice, with appropriate signature guarantee, or facsimile of the Conversion
Notice and deliver the completed Conversion Notice to the Conversion Agent, (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Registrar or Conversion
Agent, (4) pay the amount of interest, if any, required by Section10.02(E) and (5) pay any tax
or duty if required pursuant to Section 10.04.  If a Holder
holds a beneficial interest in a Global Security, to convert such Security, the
Holder must comply with clauses (4) and (5) above and the Depositary’s
procedures for converting a beneficial interest in a Global
Security.

       

      Upon conversion of a Holder’s Security,
the Company shall pay or deliver, as the case may be, through the Conversion
Agent, shares of Common Stock (together with cash in lieu of any fractional
share), cash, or a combination thereof (together with cash in lieu of any
fractional share) as set forth in this Section 10.02(A).  The
Company shall inform Holders in writing through the Trustee of its election to
deliver shares of Common Stock (together with cash in lieu of any fractional
share), pay cash or deliver and pay, as the case may be, a combination thereof
(together with cash in lieu of any fractional share) upon conversion of any
Securities (and the Specified Cash Amount, if applicable, as described in the
immediately succeeding paragraph):

       

      (i)             in
respect of Securities converted during the period beginning on, and including,
the twenty-second (22nd) Business Day immediately preceding the Maturity Date
and ending on, and including the Business Day immediately preceding the Maturity
Date, no later than the twenty-third (23rd) Business Day immediately preceding
the Maturity Date; and


      
        
           


        

        
          -47-

          
            

          

        

        
           


        

      


      (ii)              in
all other cases, no later than two Business Days following the applicable
Conversion Date.

       

      If, in
respect of any conversion of Securities, the Company has not irrevocably elected
Net Share Settlement (as described in Section 10.02(B)), and the Company
does not give notice (including notice of the Specified Cash Amount, if
applicable) within the time periods described in the immediately preceding
sentence as to how it intends to settle its conversion obligation with respect
to such Securities, the Company shall satisfy such conversion obligation by
delivering solely shares of Common Stock (other than solely cash in lieu of any
fractional share).

       

      If the Company chooses to satisfy a
portion (but not all) of its conversion obligation by paying cash (other than
solely cash in lieu of any fractional share), or if the Company has irrevocably
elected Net Share Settlement as described in Section 10.02(B), the Company shall
notify the converting Holder(s) during the periods set forth in the immediately
preceding paragraph of the amount to be satisfied in cash as a fixed dollar
amount per $1,000 principal amount of Securities (the “Specified Cash Amount”); provided that if the Company
has previously irrevocably elected Net Share Settlement as described in Section 10.02(B), the Specified Cash
Amount must be at least equal to $1,000.  If, subsequent to the
Company irrevocably electing Net Share Settlement or electing to satisfy a
portion (but not all) of its conversion obligation by paying cash (other than
solely cash in lieu of any fractional share), the Company fails to timely notify
converting Holders of the Specified Cash Amount, the Specified Cash Amount shall
be deemed to be $1,000.

       

      The
Company shall treat all converting Holders with the same Conversion Date in the
same manner.  Except for any conversion that occurs on or after the
twenty-second (22nd) Business Day immediately preceding the Maturity Date, the
Company shall not, however, have any obligation to settle conversions occurring
on different Conversion Dates in the same manner.

       

      Notwithstanding
any other provision of this Indenture or the Securities, if the Company elects
to satisfy its conversion obligation by paying or delivering, as the case may
be, a combination of cash and shares of Common Stock or if the Company has
irrevocably elected Net Share Settlement as described in Section 10.02(B), the Company shall
not issue more than 19.99% of its outstanding Common Stock immediately prior to
the issuance of the Securities on the Issue Date, and the remaining payment for
such settlement shall be comprised of cash (which cash shall be based on the
Volume-Weighted Average Price of the Common Stock on the Trading Day immediately
prior to the date on which such shares of Common Stock would otherwise be
required to be delivered).  In addition, if necessary to comply with
the listing standards of The NASDAQ Global Select Market, notwithstanding any
provision of this Indenture or the Securities, the Company shall not elect to
deliver solely shares of Common Stock upon conversion of the Securities without
shareholder approval if such shares would represent 20% or more of its
outstanding Common Stock immediately prior to the issuance of the Securities on
the Issue Date.

       


      
        
           


        

        
          -48-

          
            

          

        

        
           


        

      


      If the Company elects to settle any
conversion of Securities by delivering solely shares of Common Stock (other than
solely cash in lieu of fractional shares) or if the Company has irrevocably
elected Full Physical Settlement as described in Section 10.02(C), such settlement
shall occur within three Business Days of the relevant Conversion
Date.  Except upon conversion in connection with a Common Stock Change
Make-Whole Fundamental Change where the consideration for Common Stock is
comprised entirely of cash as described in Section 10.15(C), any settlement of a
conversion of the Securities made entirely or partially in cash (other than
solely cash in lieu of fractional shares) (including if the Company has
irrevocably elected Net Share settlement as described in Section 10.02(B)) shall occur on the third
Business Day immediately following the final Trading Day of the applicable Cash
Settlement Averaging Period.

       

      The amount of cash and number of Common
Stock, as the case may be, due upon conversion of Securities shall be determined
as follows:

       

      
        	
                 
      

              	
                (1)

              	
                If
      the Company elects to satisfy its entire conversion obligation by
      delivering shares of Common Stock or if the Company has irrevocably
      elected Full Physical Settlement as described in Section 10.02(C), the Company
      shall deliver to each converting Holder a number of shares of Common Stock
      equal to (i) (A) the aggregate principal amount of Securities to be
      converted, divided
      by (B) $1,000 multiplied by (ii) the
      Conversion Rate in effect on the relevant Conversion Date (provided that the
      Company shall deliver cash in lieu of fractional shares as described
      in Section 10.03).

              


      

       

      
        	
                 
      

              	
                (2)

              	
                If
      the Company elects to satisfy its entire conversion obligation by paying
      cash, the Company shall pay to each converting Holder, for each $1,000
      principal amount of Securities so converted, cash in an amount equal to
      the sum of the Daily Conversion Values for each of the twenty (20)
      consecutive Trading Days in the relevant Cash Settlement Averaging
      Period.

              


      

       

      
        	
                 
      

              	
                (3)

              	
                Subject
      to the sixth paragraph of this Section 10.02(A), if the Company
      elects to satisfy the conversion obligation by delivering or paying, as
      the case may be, a combination of shares of Common Stock and cash, or if
      the Company has irrevocably elected Net Share Settlement pursuant to Section 10.02(B), the Company
      shall deliver to each converting Holder, for each $1,000 principal amount
      of Securities so converted, cash and shares of Common Stock equal to the
      sum of the Daily Settlement Amounts for each of the twenty (20)
      consecutive Trading Days in the relevant Cash Settlement Averaging
      Period.

              


      

       

      The Daily
Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day
of the applicable Cash Settlement Averaging Period.  Promptly after
such determination of the Daily Settlement Amounts or the Daily Conversion
Values, as the case may be, and the amount of cash deliverable in lieu of
fractional shares (if any), the Company shall notify the Trustee and the
Conversion Agent of the Daily Settlement Amounts or the Daily Conversion Values,
as the case may be, and the amount of cash deliverable in lieu of fractional
shares (if any).  The Trustee and the Conversion Agent shall have no
responsibility for any such determination.

       


      
        
           


        

        
          -49-

          
            

          

        

        
           


        

      


      (B)           Subject
to the sixth paragraph of Section 10.02(A), at any time on or
prior to the twenty-third (23rd) Business Day immediately preceding the Maturity
Date, the Company may irrevocably elect to satisfy its conversion obligation
with respect to all Securities converted after the date of such election by
delivering cash up to the aggregate principal amount of Securities to be
converted, and shares of Common Stock, cash or a combination thereof in respect
of the remainder, if any, of the conversion obligation (“Net Share
Settlement”).  Such election (a “Net Share Settlement
Election”) shall be in the Company’s sole discretion and shall not
require the consent of Holders.  Upon making a Net Share Settlement
Election, the Company shall promptly (3) issue a press release and use its
reasonable best efforts to post such information on its website or otherwise
publicly disclose this information or (4) provide written notice to Holders by
mailing such notice to Holders at their addresses shown in the register of the
Registrar, or if such Securities are held in book-entry form through the
Depositary, through the applicable notice procedures of the
Depositary.

       

      (C)           Subject
to the sixth paragraph of Section 10.02(A), at any time on or
prior to the twenty-third (23rd) Business Day immediately preceding the Maturity
Date, the Company may irrevocably elect to satisfy its conversion obligation
with respect to all Securities converted after the date of such election by
delivering solely shares of Common Stock (other than solely cash in lieu of
fractional shares) in respect of the conversion obligation (“Full Physical
Settlement”).  Such election (a “Full Physical Settlement Election”) shall be in the
Company’s sole discretion and shall not require the consent of
Holders.  Upon making a Full Physical Settlement Election, the Company
shall promptly (5) issue a press release and use its reasonable best efforts to
post such information on its website or otherwise publicly disclose this
information or (6) provide written notice to Holders by mailing such notice to
Holders at their addresses shown in the register of the Registrar, or if such
Securities are held in book-entry form through the Depositary, through the
applicable notice procedures of the Depositary.

       

      (D)           A
Holder receiving shares of Common Stock upon conversion shall not be entitled to
any rights as a holder of Common Stock, including, among other things, the right
to vote and receive dividends and notices of shareholder meetings, until the
close of business on the Conversion Date (if the Company delivers solely shares
of Common Stock in respect of the conversion obligation, other than solely cash
in lieu of fractional shares delivered pursuant to Section 10.03, or if the Company has
irrevocably elected Full Physical Settlement as described in Section 10.02(C)) or the close of
business on the last Trading Day of the relevant Cash Settlement Averaging
Period (if the Company delivers cash in respect of a portion (but not all) of
the conversion obligation pursuant to Section 10.02(A), other than solely
cash in lieu of any fractional shares delivered pursuant to Section 10.03, or if the Company has
irrevocably elected Net Share Settlement as described in Section 10.02(B)).  On and
after the Conversion Date with respect to a conversion of a Security pursuant
hereto, all rights of the Holder of such Security shall terminate, other than
the right to receive the consideration deliverable upon conversion of such
Security as provided herein.

       


      
        
           


        

        
          -50-

          
            

          

        

        
           


        

      


      (E)           Except
as provided in the Securities or in this Article X, no payment or adjustment
will be made for accrued interest on a converted Security or for dividends on
any Common Stock issued on or prior to conversion, and accrued interest, if any,
will be deemed to be paid by the consideration paid to the Holder upon
conversion.  Such accrued interest, if any, shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited.  Upon
conversion of the Securities into a combination of cash and shares of Common
Stock, accrued and unpaid interest (if any) shall be deemed to be paid first out
of the cash paid upon such conversion.  If any Holder surrenders a
Security for conversion after the close of business on the Record Date for the
payment of an installment of interest and prior to the open of business on the
next Interest Payment Date, then, notwithstanding such conversion, the full
amount of interest payable with respect to such Security on such Interest
Payment Date shall be paid on such Interest Payment Date to the Holder of record
of such Security at the close of business on such Record Date; provided, however, that such
Security, when surrendered for conversion, must be accompanied by payment in
cash to the Conversion Agent on behalf of the Company of the full amount equal
to the interest payable on such Interest Payment Date on the portion so
converted; provided further,
however, that such payment to the Conversion Agent described in the
immediately preceding proviso in respect of a Security surrendered for
conversion shall not be required with respect to a Security that (7) is
surrendered for conversion after the close of business on the Record Date
immediately preceding the Maturity Date or (8) is surrendered for
conversion after the close of business on a Record Date for the payment of an
installment of interest and on or before the open of business on the related
Interest Payment Date, where, pursuant to Section 3.02, the Company has
specified, with respect to a Fundamental Change, a Fundamental Change Repurchase
Date that is after such Record Date and on or before such Interest Payment Date;
provided further that,
if the Company shall have, prior to the Conversion Date with respect to a
Security, defaulted in a payment of interest on such Security, then in no event
shall the Holder of such Security who surrenders such Security for conversion be
required to pay such defaulted interest or the interest that shall have accrued
on such defaulted interest pursuant to Section 2.12 or otherwise (it being
understood that nothing in this Section 10.02(E) shall affect the
Company’s obligations under Section 2.12).

       

      (F)           If
a Holder converts more than one Security at the same time, the number of full
shares of Common Stock issuable upon such conversion, if any, shall be based on
the total principal amount of all Securities converted.

       

      (G)           Upon
surrender of a Security that is converted in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered.

       

      (H)           If
the last day on which a Security may be converted is a Legal Holiday in a place
where a Conversion Agent is located, the Security may be surrendered to that
Conversion Agent on the next succeeding day that is not a Legal
Holiday.

       

      10.03        Cash in lieu of Fractional
Shares.

       

      The
Company will not issue a fractional share of Common Stock upon conversion of a
Security. Instead, the Company shall pay cash in lieu of fractional shares based
on the Closing Sale Price of Common Stock on the Conversion Date (if the Company
delivers solely shares of Common Stock to satisfy its conversion obligation,
other than solely cash in lieu of fractional shares, or if the Company has
irrevocably elected Full Physical Settlement pursuant to Section 10.02(C)) or the Closing Sale
Price of Common Stock on the last Trading Day of the relevant Cash Settlement
Averaging Period (if the Company delivers cash to satisfy a portion, but less
than all, of its conversion obligation, other than solely cash in lieu of any
fractional shares, or if the Company has irrevocably elected Net Share
Settlement pursuant to Section
10.02(B)).

       


      
        
           


        

        
          -51-

          
            

          

        

        
           


        

      


      10.04        Taxes on
Conversion.

       

      If a
Holder converts its Security, the Company shall pay any documentary, stamp or
similar issue or transfer tax or duty due on the issue, if any, of Common Stock
upon the conversion.  However, such Holder shall pay any such tax or
duty which is due because such shares are issued in a name other than such
Holder’s name.  The Conversion Agent may refuse to deliver a
certificate representing the Common Stock to be issued in a name other than such
Holder’s name until the Conversion Agent receives a sum sufficient to pay any
tax or duty which will be due because such shares are to be issued in a name
other than such Holder’s name.

       

      10.05        Company to Provide Common
Stock.

       

      The
Company shall at all times reserve out of its authorized but unissued Common
Stock or Common Stock held in its treasury enough shares of Common Stock to
permit the conversion, in accordance herewith, of all of the Securities
(assuming, for such purposes, that the Company has previously elected Full
Physical Settlement pursuant to Section 10.02(C)).  The
shares of Common Stock, if any, due upon conversion of a Global Security shall
be delivered by the Company in accordance with the Depositary’s customary
practices.

       

      All
shares of Common Stock which may be issued upon conversion of the Securities
shall be validly issued, fully paid and non-assessable and shall be free of
preemptive or similar rights and free of any lien or adverse claim.

       

      The
Company shall comply with all securities laws regulating the offer and delivery
of shares of Common Stock upon conversion of Securities and shall list such
shares on each national securities exchange or automated quotation system on
which the shares of Common Stock are listed.

       

      10.06        Adjustment of Conversion
Rate.

       

      The
Conversion Rate shall be subject to adjustment from time to time, without
duplication, upon the occurrence of any of the following events:

       

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

       

      

       


      
        
           


        

        
          -52-

          
            

          

        

        
           


        

      


      where

       

      
        	
                 
      

              	
                CR0

              	
                =

              	
                the
      Conversion Rate in effect immediately prior to the open of business on the
      Ex Date for such dividend or distribution, or the open of business on the
      effective date of such share split or share combination, as the case may
      be;

              


      

       

      
        	
                 
      

              	
                CR'

              	
                =

              	
                the
      Conversion Rate in effect immediately after the open of business on the Ex
      Date for such dividend or distribution, or the open of business on the
      effective date of such share split or share combination, as the case may
      be;

              


      

       

      
        	
                 
      

              	
                OS0

              	
                =

              	
                the
      number of shares of Common Stock outstanding immediately prior to the open
      of business on the Ex Date for such dividend or distribution, or the open
      of business on the effective date of such share split or share
      combination, as the case may be;
and

              


      

       

      
        	
                 
      

              	
                OS'

              	
                =

              	
                the
      number of shares of Common Stock outstanding immediately after such
      dividend or distribution, or such share split or share combination, as the
      case may be.

              


      

       

      Any
adjustment made under this Section 10.06(a) shall become
effective immediately after the open of business on the Ex Date for such
dividend or distribution, or immediately after the open of business on the
effective date for such share split or share combination, as the case may
be.  If any dividend or distribution of the type described in this
Section 10.06(a) is declared but not
so paid or made, or any share split or combination of the type described in this
Section 10.06(a) is announced but the
outstanding shares of Common Stock are not split or combined, as the case may
be, the Conversion Rate shall be immediately readjusted, effective as of the
date the Board of Directors determines not to pay such dividend or distribution,
or not to split or combine the outstanding shares of Common Stock, as the case
may be, to the Conversion Rate that would then be in effect if such dividend,
distribution, share split or share combination had not been declared or
announced.

       

      (b)            If
the Company distributes to all or substantially all holders of the Common Stock
any rights, options or warrants entitling them, for a period expiring not more
than sixty (60) days immediately following the record date of such distribution,
to purchase or subscribe for shares of Common Stock, at a price per share less
than the average of the Closing Sale Prices of the Common Stock over the ten
(10) consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex Date for such distribution, the Conversion Rate shall be
increased based on the following formula:

       

      

       

      where

       

      
        	
                 
      

              	
                CR0

              	
                =

              	
                the
      Conversion Rate in effect immediately prior to the open of business on the
      Ex Date for such distribution;

                 

              


      

       


      
        
           


        

        
          -53-

          
            

          

        

        
           


        

      


      


       

      
        	
                 
      

              	
                CR'

              	
                =

              	
                the
      Conversion Rate in effect immediately after the open of business on the Ex
      Date for such distribution;

              


      

       

      
        	
                 
      

              	
                OS0

              	
                =

              	
                the
      number of shares of Common Stock that are outstanding immediately prior to
      the open of business on the Ex Date for such distribution;

                 

              


      

       

      
        	
                 
      

              	
                X

              	
                =

              	
                the
      total number of shares of Common Stock issuable pursuant to such rights,
      options or warrants; and

              


      

       

      
        	
                 
      

              	
                Y

              	
                =

              	
                the
      number of shares of Common Stock equal to the aggregate price payable to
      exercise such rights, options or warrants, divided by the average
      of the Closing Sale Prices of the Common Stock over the ten (10)
      consecutive Trading Day period ending on the Trading Day immediately
      preceding the Ex Date for such
distribution.

              


      

       

      Any
increase made under this Section 10.06(b) shall be made
successively whenever any such rights, options or warrants are distributed and
shall become effective immediately after the open of business on the Ex Date for
such distribution.  The Company shall not issue any such rights,
options, or warrants in respect of Common Stock held in treasury by the
Company.  To the extent that shares of Common Stock are not delivered
after the expiration of such rights, options or warrants, the Conversion Rate
shall be readjusted to the Conversion Rate that would then be in effect had the
increase with respect to the distribution of such rights, options or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered.  If such rights, options or warrants are not so
distributed, the Conversion Rate shall be decreased to be the Conversion Rate
that would then be in effect if such Ex Date for such distribution had not
occurred.

       

      In
determining whether any rights, options or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such average of
the Closing Sale Prices for the ten (10) consecutive Trading Day period ending
on the Trading Day immediately preceding the Ex Date for such distribution, and
in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for
such rights, options or warrants and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be
determined by the Board of Directors.  In no event shall the
Conversion Rate be decreased pursuant to this Section 10.06(b).

       

      (c)            If
the Company distributes shares of its Capital Stock, evidences of its
indebtedness or other of its assets, securities or property, but excluding (i)
dividends or distributions covered by Sections 10.06(a) and 10.06(b), (ii) dividends or
distributions paid exclusively in cash covered by Section 10.06(d), and (iii) Spin-Offs
to which the provisions set forth in the latter portion of this Section 10.06(c) shall apply (any of
such shares of Capital Stock, indebtedness or other assets, securities or
property, the “Distributed
Property”), to all or substantially all holders of Common Stock, then, in
each such case the Conversion Rate shall be increased based on the following
formula:

       


      
        
           


        

        
          -54-

          
            

          

        

        
           


        

      


      


       

      

       

      where

       

      
        	
                 
      

              	
                CR0

              	
                =

              	
                the
      Conversion Rate in effect immediately prior to the open of business on the
      Ex Date for such distribution;

                 

              


      

       

      
        	
                 
      

              	
                CR'

              	
                =

              	
                the
      Conversion Rate in effect immediately after the open of business on the Ex
      Date for such distribution;

              


      

       

      
        	
                 
      

              	
                SP0

              	
                =

              	
                the
      average of the Closing Sale Prices of the Common Stock over the ten (10)
      consecutive Trading Day period ending on the Trading Day immediately
      preceding the Ex Date for such distribution;
and

              


      

       

      
        	
                 
      

              	
                FMV

              	
                =

              	
                the
      fair market value (as determined by the Board of Directors) of the shares
      of Capital Stock, evidences of indebtedness, assets, securities or
      property distributable with respect to each outstanding share of Common
      Stock as of the open of business on the Ex Date for such
      distribution.

              


      

       

      If the
Board of Directors determines “FMV” for purposes of this Section 10.06(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
Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading
Day period ending on the Trading Day immediately preceding the Ex Date for such
distribution.

       

      Notwithstanding
the foregoing, if “FMV” (as defined above) is equal to or greater than the
“SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a Security
shall receive, for each $1,000 principal amount of Securities, at the same time
and upon the same terms as the holders of the Common Stock, the amount and kind
of Distributed Property that such Holder would have received as if such Holder
owned a number of shares of Common Stock equal to the Conversion Rate in effect
on the Ex Date for such distribution.

       

      Any increase made under the portion
of this Section 10.06(c) above shall become
effective immediately after the open of business on the Ex Date for such
distribution.  If such distribution is not so paid or made, the
Conversion Rate shall be decreased to be the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared.

       

      With respect to an adjustment
pursuant to this Section
10.06(c) where
there has been a payment of a dividend or other distribution on the Common Stock
of shares of Capital Stock of any class or series, or similar equity interest,
of or relating to a Subsidiary or other business unit of the Company, where such
Capital Stock or similar equity interest is listed or quoted (or will be listed
or quoted upon consummation of the Spin-Off) on a U.S. national securities
exchange (a “Spin-Off”),
the Conversion Rate in effect immediately before the close of business on the
tenth (10th) Trading Day immediately following, and including, the Ex Date of
the Spin-Off shall be increased based on the following formula:

       


      
        
           


        

        
          -55-

          
            

          

        

        
           


        

      


      


       

      

       

      where

       

      
        	
                 
      

              	
                CR0

              	
                =

              	
                the
      Conversion Rate in effect immediately prior to the close of business on
      the tenth (10th) Trading Day immediately following, and including, the Ex
      Date for the Spin-Off;

                 

              


      

       

      
        	
                 
      

              	
                CR'

              	
                =

              	
                the
      Conversion Rate in effect immediately after the close of business on the
      tenth (10th) Trading Day immediately following, and including, the Ex Date
      for the Spin-Off;

                 

              


      

       

      
        	
                 
      

              	
                FMV0

              	
                =

              	
                the
      average of the Closing Sale Prices of the Capital Stock or similar equity
      interest distributed to holders of the Common Stock applicable to one
      share of Common Stock over the first ten (10) consecutive Trading Day
      period immediately following, and including, the Ex Date for the Spin-Off;
      and

              


      

       

      
        	
                 
      

              	
                MP0

              	
                =

              	
                the
      average of the Closing Sale Prices of the Common Stock over the first ten
      (10) consecutive Trading Day period immediately following, and including,
      the Ex Date for the Spin-Off.

                 

              


      

       

      The
increase to the Conversion Rate under the preceding paragraph shall become
effective at the close of business on the tenth (10th) Trading Day immediately
following, and including, the Ex Date for the Spin-Off; provided that, for purposes
of determining the Conversion Rate, in respect of any conversion during the ten
(10) Trading Days immediately following and including, the Ex Date of any
Spin-Off, references in the portion of this Section 10.06(c) related to Spin-Offs
to ten (10) consecutive Trading Days shall be deemed replaced with such lesser
number of consecutive Trading Days as have elapsed between the Ex Date of such
Spin-Off and the Conversion Date for such conversion.  If the Ex Date
for the Spin-Off is less than ten (10) Trading Days prior to, and including, the
end of the Cash Settlement Averaging Period in respect of any conversion,
references with respect to ten (10) Trading Days shall be deemed replaced, for
purposes of calculating the affected daily Conversion Rates in respect of that
conversion, with such lesser number of Trading Days as have elapsed from, and
including, the Ex Date for such Spin-Off to, and including, the last Trading Day
of such Cash Settlement Averaging Period.

       


      
        
           


        

        
          -56-

          
            

          

        

        
           


        

      


      Subject in all respects to Section 10.14, rights, options or
warrants distributed by the Company to all holders of its Common Stock entitling
the holders thereof to subscribe for or purchase shares of the Company’s Capital
Stock, including Common Stock (either initially or under certain circumstances),
which rights, options or warrants, until the occurrence of a specified event or
events (“Trigger
Event”): (i) are deemed to be transferred with such Common Stock; (ii)
are not exercisable; and (iii) are also issued in respect of future issuances of
the Common Stock, shall be deemed not to have been distributed for purposes of
this Section 10.06(c) (and no adjustment to
the Conversion Rate under this Section 10.06(c) will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights,
options or warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 10.06(c).  If any
such right, option or warrant, including any such existing rights, options or
warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights, options or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to be
the date of distribution and Ex Date with respect to new rights, options or
warrants with such rights (and a termination or expiration of the existing
rights, options or warrants without exercise by any of the holders
thereof).  In addition, in the event of any distribution (or deemed
distribution) of rights, options or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 10.06(c) was made, (1) in the
case of any such rights, options or warrants that shall all have been redeemed
or repurchased without exercise by any holders thereof, the Conversion Rate
shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights, options or warrants),
made to all holders of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of such rights, options or warrants that shall
have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options or warrants had
not been issued.

       

      For purposes of Section 10.06(a), Section 10.06(b) and this Section 10.06(c), any dividend or
distribution to which this Section 10.06(c) is applicable that
also includes one or both of:

       

      (A)           a
dividend or distribution of shares of Common Stock to which Section 10.06(a) is applicable (the
“Clause A
Distribution”); or

       

      (B)           a
dividend or distribution of rights, options or warrants to which Section 10.06(b) is applicable (the
“Clause B
Distribution”),

       


      
        
           


        

        
          -57-

          
            

          

        

        
           


        

      


      then (1)
such dividend or distribution, other than the Clause A Distribution and Clause B
Distribution, shall be deemed to be a dividend or distribution to which this
Section 10.06(c) is applicable (the
“Clause C Distribution”)
and any Conversion Rate adjustment required by this Section 10.06(c) with respect to such
Clause C Distribution shall then be made and (2) the Clause A Distribution and
Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 10.06(a) and Section 10.06(b) with respect thereto
shall then be made, except that, if determined by the Board of Directors
(I) the Ex Date of the Clause A Distribution and the Clause B Distribution
shall be deemed to be the Ex Date of the Clause C Distribution and (II) any
shares of Common Stock included in the Clause A Distribution or Clause B
Distribution shall be deemed not to be “outstanding immediately prior to the
open of business on the Ex Date for such dividend or distribution, or the open
of business on the effective date of such share split or share combination, as
the case may be” within the meaning of Section 10.06(a) or “outstanding
immediately prior to the open of business on the Ex Date for such distribution”
within the meaning of Section
10.06(b).

       

      In no event shall the Conversion
Rate be decreased pursuant to this Section 10.06(c).

       

      (d)            If
any cash dividend or distribution is made to all or substantially all holders of
the Common Stock, the Conversion Rate shall be increased based on the following
formula:

       

      

       

      where

       

      
        	
                 
      

              	
                CR0    =

              	
                the
      Conversion Rate in effect immediately prior to the open of business on the
      Ex Date for such dividend or distribution;

                 

              


      

       

      
        	
                 
      

              	
                CR'     =

              	
                the
      Conversion Rate in effect immediately after the open of business on the Ex
      Date for such dividend or distribution;

                 

              


      

       

      
        	
                 
      

              	
                SP0     =

              	
                the
      average of the Closing Sale Prices of the Common Stock over the ten (10)
      consecutive Trading Day period immediately preceding the Ex Date for such
      dividend or distribution; and

                 

              


      

       

      
        	
                 
      

              	
                C        =

              	
                the
      amount in cash per share of Common Stock the Company distributes to
      holders of its Common Stock.

              


      

       

      Such
increase shall become effective immediately after the open of business on the Ex
Date for such dividend or distribution.  If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased to be the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.

       

      Notwithstanding the foregoing, if
“C” (as defined above) is equal to or greater than “SP0” (as
defined above), in lieu of the foregoing increase, each Holder of a Security
shall receive, for each $1,000 principal amount of Securities, at the same time
and upon the same terms as holders of the Common Stock, the amount of cash such
Holder would have received as if such Holder owned a number of shares of Common
Stock equal to the Conversion Rate on the Ex Date for such dividend or
distribution.

       


      
        
           


        

        
          -58-

          
            

          

        

        
           


        

      


      In no event shall the Conversion
Rate be decreased pursuant to this Section 10.06(d).

       

      (e)            If
the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for the Common Stock, if the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the
average of the Closing Sale Prices of the Common Stock over the ten (10)
consecutive Trading-Day period commencing on, and including, the Trading Day
next succeeding the last date on which tenders or exchanges may be made pursuant
to such tender or exchange offer, the Conversion Rate shall be increased based
on the following formula:

       

      

       

      where

       

      
        	
                 
      

              	
                CR0

              	
                =

              	
                the
      Conversion Rate in effect immediately prior to the close of business on
      the last Trading Day of the ten (10) consecutive Trading Day period
      commencing on, and including, the Trading Day next succeeding the date
      such tender or exchange offer
expires;

              


      

       

      
        	
                 
      

              	
                CR'

              	
                =

              	
                the
      Conversion Rate in effect immediately after the close of business on the
      last Trading Day of the ten (10) consecutive Trading Day period commencing
      on, and including, the Trading Day next succeeding the date such tender or
      exchange offer expires;

              


      

       

      
        	
                 
      

              	
                AC

              	
                =

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

              


      

       

      
        	
                 
      

              	
                OS0

              	
                =

              	
                the
      number of shares of Common Stock outstanding immediately prior to the date
      such tender or exchange offer expires (prior to giving effect to such
      tender offer or exchange offer);

              


      

       

      
        	
                 
      

              	
                OS'

              	
                =

              	
                the
      number of shares of Common Stock outstanding immediately after the date
      such tender or exchange offer expires (after giving effect to such tender
      offer or exchange offer); and

              


      

       

      
        	
                 
      

              	
                SP'

              	
                =

              	
                the
      average of the Closing Sale Prices of the Common Stock over the ten (10)
      consecutive Trading Day period commencing on, and including, the Trading
      Day next succeeding the date such tender or exchange offer
      expires.

              


      

       


      
        
           


        

        
          -59-

          
            

          

        

        
           


        

      


      The
increase to the Conversion Rate under this Section 10.06(e) shall occur at the
close of business on the tenth (10th) Trading Day immediately following, but
excluding, the date such tender or exchange offer expires; provided that, for purposes
of determining the Conversion Rate, in respect of any conversion during the ten
(10) Trading Days immediately following, but excluding, the date that any such
tender or exchange offer expires, references in this Section 10.06(e) to ten (10) Trading
Days shall be deemed replaced with such lesser number of Trading Days as have
elapsed between the date that such tender or exchange offer expires and the
Conversion Date for such conversion.  If the Trading Day immediately
following the date the tender or exchange offer expires is less than ten (10)
Trading Days prior to, and including, the end of the Cash Settlement Averaging
Period in respect of any conversion, references to ten (10) Trading Days shall
be deemed replaced, for purposes of calculating the affected daily Conversion
Rates in respect of such conversion, with such lesser number of Trading Days as
have elapsed from, and including, the Trading Day immediately following the date
such tender or exchange offer expires to, and including, the last Trading Day of
such Cash Settlement Averaging Period.  In no event shall the
Conversion Rate be decreased pursuant to this Section 10.06(e).

       

      (f)           Notwithstanding
this Section 10.06 or any other provision
of this Indenture or the Securities, if a Conversion Rate adjustment becomes
effective on any Ex Date, and a Holder that has converted its Securities on or
after such Ex Date and on or prior to the related record date would be treated
as the record holder of shares of Common Stock as of the related Conversion Date
as described under Section 10.02 based on an adjusted
Conversion Rate for such Ex Date, then, notwithstanding the Conversion Rate
adjustment provisions in this Section 10.06, the Conversion Rate
adjustment relating to such Ex Date shall not be made for such converting
Holder. Instead, such Holder shall be treated as if such Holder were the record
owner of the shares of Common Stock on an unadjusted basis and participate in
the related dividend, distribution or other event giving rise to such
adjustment.

       

      (g)          In
addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company may,
from time to time and to the extent permitted by law and the continued listing
requirements of The NASDAQ Global Select Market, increase the Conversion Rate by
any amount for a period of at least twenty (20) Business Days or any longer
period as may be permitted or required by law, if the Board of Directors has
made a determination, which determination shall be conclusive, that such
increase would be in the best interests of the Company.  Such
Conversion Rate increase shall be irrevocable during such period.  The
Company shall give notice to the Trustee and cause notice of such increase to be
mailed to each Holder of Securities at such Holder’s address as the same appears
on the registry books of the Registrar, at least fifteen (15) days prior to the
date on which such increase commences.

       

      (h)          Notwithstanding
this Section 10.06 or any other provision
of this Indenture or the Securities, if any Conversion Rate adjustment becomes
effective, or any Ex Date for any issuance, dividend or distribution (relating
to a required Conversion Rate adjustment) occurs, during the period beginning
on, and including, the open of business on a Conversion Date and ending on, and
including, the close of business on the last Trading Day of a related Cash
Settlement Averaging Period (if the Company elects to satisfy the related
conversion obligation by paying cash, in whole or in part, in respect thereof or
if the Company has irrevocably elected Net Share Settlement pursuant to Section 10.02(B)), the Board of
Directors shall make adjustments to the Conversion Rate and the amount of cash
or number of shares of Common Stock issuable upon conversion of the Securities,
as the case may be, as is be necessary or appropriate to effect the intent of
this Section 10.06 and the other provisions
of Article X and to avoid unjust or
inequitable results, as determined in good faith by the Board of
Directors.  Any adjustment made pursuant to this Section 10.06 shall apply in lieu of
the adjustment or other term that would otherwise be applicable.

       


      
        
           


        

        
          -60-

          
            

          

        

        
           


        

      


      (i)           All
calculations under this Article X shall be made to the nearest
cent or to the nearest one-millionth of a share, as the case may be. Adjustments
to the Conversion Rate will be calculated to the nearest
1/10,000th.

       

      10.07          No Adjustment.

       

      Notwithstanding
anything herein or in the Securities to the contrary, in no event shall the
Conversion Rate be adjusted:

       

      (i)             upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on the
Company’s securities;

       

      (ii)            upon
the issuance of any shares of Common Stock or restricted stock, restricted stock
units, non-qualified stock options, incentive stock options or any other options
or rights (including stock appreciation 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;

       

      (iii)           upon
the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in
clause (ii) above and outstanding as of the date the Securities were first
issued;

       

      (iv)           for
accrued and unpaid interest, if any, including Additional Interest, if
any;

       

      (v)            upon
the repurchase of any shares of Common Stock pursuant to an open-market share
repurchase program or other buy-back transaction that is not a tender offer or
exchange offer of the nature described in Section 10.06; or

       

      (vi)           for
a change in the par value of shares of Common Stock.

       

      No
adjustment in the Conversion Rate pursuant to Section 10.06 shall be required until
cumulative adjustments amount to one percent (1%) or more of the Conversion Rate
as last adjusted (or, if never adjusted, the initial Conversion Rate); provided, however, that any
adjustments to the Conversion Rate which by reason of this paragraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment to the Conversion Rate; provided further, that
(i) on December 31 of each year and (ii) if the Securities have been
converted pursuant to Section
10.01, then, in
each case, any adjustments to the Conversion Rate that have been, and at such
time remain, deferred pursuant to this Section 10.07 shall be given effect,
and such adjustments, if any, shall no longer be carried forward and taken into
account in any subsequent adjustment to the Conversion Rate.

       


      
        
           


        

        
          -61-

          
            

          

        

        
           


        

      


      


       

      No
adjustment to the Conversion Rate need be made pursuant to Section 10.06 for a transaction (other
than for share splits or share combinations pursuant to Section 10.06(a)) if the Company
provides for each Holder to participate in the transaction, at the same time
that holders of Common Stock participate in such transaction, without
conversion, as if such Holder held a number of shares of Common Stock equal to a
fraction whose numerator is the product of the Conversion Rate in effect on the
Ex Date or effective date, as applicable, of the transaction (without giving
effect to any adjustment pursuant to Section 10.06 on account of such
transaction) and the aggregate principal amount of Securities held by such
Holder and whose denominator is one thousand dollars ($1,000).

       

      10.08        Other
Adjustments.

       

      In the
event that, as a result of an adjustment made pursuant to Section 10.06 hereof, the Holder of
any Security thereafter surrendered for conversion shall become entitled to
receive any shares of Capital Stock other than Common Stock, thereafter the
Conversion Rate of such other shares so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Article X.

       

      10.09        Adjustments for Tax
Purposes.

       

      Except as
prohibited by law the Company may (but is not obligated to) increase the
Conversion Rate, in addition to those required by Section 10.06 hereof, as it determines
to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities or distribution of
securities convertible into or exchangeable for stock made by the Company or to
its shareholders will not be taxable to the recipients thereof or in order to
avoid or diminish any such taxation.

       

      10.10        Notice of
Adjustment.

       

      Whenever
the Conversion Rate is adjusted, the Company shall promptly mail to Holders at
the addresses appearing on the Registrar’s books a notice of the adjustment and
file with the Trustee an Officer’s Certificate briefly stating the facts
requiring the adjustment and the manner of computing it.  The
certificate shall be conclusive evidence of the correctness of such
adjustment.

       

      10.11        Notice of Certain
Transactions.

       

      In the
event that:

       

      (1)           the
Company takes any action, or becomes aware of any event, which would require an
adjustment in the Conversion Rate,

       

      (2)           the
Company takes any action that would require a supplemental indenture pursuant to
Section 10.12, or

       


      
        
           


        

        
          -62-

          
            

          

        

        
           


        

      


      (3)           there
is a dissolution or liquidation of the Company,

       

      the
Company shall mail to Holders at the addresses appearing on the Registrar’s
books and the Trustee a written notice stating the proposed record, effective or
expiration date, as the case may be, of any transaction referred to in clause (1), (2) or (3) of this Section 10.11.  The Company
shall mail such notice at least twenty (20) calendar days (or, in the case of
any event that would require an adjustment in the Conversion Rate pursuant to
Section 10.06(b), 10.06(c), 10.06(d) or 10.06(e), thirty (30) Business
Days) before such date; however, failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 10.11.

       

      10.12        Effect of Reclassifications,
Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion
Privilege.

       

      If the
Company:

       

      (i)
reclassifies the Common Stock (other than a change only 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 of Common Stock to which Section 10.06 applies);

       

      (ii) is a
party to a consolidation, merger or binding share exchange; or

       

      (iii)
sells, transfers, leases, conveys or otherwise disposes of all or substantially
all of the consolidated property or assets of the Company,

       

      in each
case pursuant to which the Common Stock would be converted into or exchanged
for, or would constitute solely the right to receive, cash, securities or other
property (any such event, a “Merger Event”) then, if a
Holder converts its Securities on or after the effective date of any such
transaction, subject to the Company’s right to settle all or a portion of its
conversion obligation with respect to such Securities by paying cash (other than
solely cash in lieu of any fractional share) as set forth in Section 10.02(A) and the Company’s right
to irrevocably elect Net Share Settlement as set forth in Section 10.02(B), the Securities will
be convertible into the same type (and same proportions) of consideration
received by holders of Common Stock in such transaction (“Reference Property”) and,
prior to or at the effective time of such Merger Event, the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture permitted under Section 9.01(i) providing for such
change in the right to convert the Securities; provided, however, that at
and after the effective time of the Merger Event, (A) the Company shall continue
to have the right to determine the form of consideration to be paid or
delivered, as the case may be, upon conversion of Securities in accordance with
Section 10.02
and (B)(I) any amount payable in cash upon conversion of the Securities in
accordance with Section 10.02
shall continue to be payable in cash, (II) any shares of Common Stock that the
Company would have been required to deliver upon conversion of the Securities in
accordance with Section 10.02
shall instead be deliverable in the amount and type of Reference Property that a
holder of that number of shares of Common Stock would have received in such
Merger Event and (III) the Volume-Weighted Average Price shall be calculated
based on the value of a unit of Reference Property that a holder of one share of
Common Stock would have received in such Merger Event.

       


      
        
           


        

        
          -63-

          
            

          

        

        
           


        

      


      


       

      If the Merger Event causes the Common
Stock to be converted into, or exchanged for, the right to receive more than a
single type of consideration (determined based in part upon any form of
shareholder election), then (i) the Reference Property into which the Securities
will be convertible shall be deemed to be the weighted average of the types and
amounts of consideration received by the holders of Common Stock that
affirmatively make such an election and (ii) the unit of Reference Property for
purposes of the immediately preceding paragraph shall refer to the consideration
referred to in clause (i) attributable to one share of Common
Stock.  The Company shall notify Holders, the Trustee and the
Conversion Agent (if other than the Trustee) of such weighted average as soon as
practicable after such determination is made.

       

      The
supplemental indenture referred to in the first sentence of this Section 10.12 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 X.  If, in the case
of any such consolidation, merger, binding share exchange, sale, transfer,
lease, conveyance or disposition, the stock or other securities and property
(including cash) receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and property of a Person other than the
successor or purchasing Person, as the case may be, in such consolidation,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition, 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 in good
faith shall reasonably determine necessary by reason of the foregoing (which
determination shall be described in a Board Resolution).  The
provisions of this Section 10.12 shall similarly apply to
successive consolidations, mergers, binding share exchanges, sales, transfers,
leases, conveyances or dispositions.

       

      The Company shall not become a party to
any Merger Event unless its terms are consistent with this Section 10.12.

       

      None of the foregoing provisions shall
affect the right of a Holder to convert its Securities into cash, shares of
Common Stock or a combination of cash and shares of Common Stock, as applicable,
as set forth in Section 10.01 and Section 10.02 prior to the effective
date of such Merger Event.

       

      In the
event the Company shall execute a supplemental indenture pursuant to this Section 10.12, the Company shall
promptly file with the Trustee an Officer’s Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities or
property (including cash) receivable by Holders of the Securities upon the
conversion of their Securities after any such Merger Event and any adjustment to
be made with respect thereto.

       

      10.13        Trustee’s
Disclaimer.

       

      The
Trustee has no duty to determine when an adjustment under this Article X should be made, how it
should be made or what such adjustment should be, but may accept as conclusive
evidence of the correctness of any such adjustment, and shall be protected in
relying upon, the Officer’s Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 10.10 hereof.  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 failure by the Company to comply with any provisions of this
Article X.

       


      
        
           


        

        
          -64-

          
            

          

        

        
           


        

      


      The
Trustee shall not be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture executed pursuant to
Section 10.12, but may accept as
conclusive evidence of the correctness thereof, and shall be protected in
relying upon, the Officer’s Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 10.12 hereof.

       

      10.14        Rights Distributions Pursuant to
Shareholders’ Rights Plans.

       

      Upon
conversion of any Security or a portion thereof, the Company shall make
provision such that the Holder thereof shall, to the extent such Holder is to
receive shares of Common Stock upon such conversion, receive, in addition to,
and concurrently with the delivery of, such shares of Common Stock upon
conversion, the rights described in the  Rights Agreement and any
future shareholders’ rights plan(s) of the Company then in effect, unless the
rights have separated from the Common Stock prior to the time of conversion, in
which case the Conversion Rate shall be adjusted at the time of separation as if
the Company distributed to all holders of Common Stock, Distributed Property as
described in Section
10.06(c), subject
to readjustment in the event of the expiration, termination or redemption of
such rights.

       

      10.15        Increased Conversion Rate Applicable
to Certain Securities Surrendered in Connection With Make-Whole Fundamental
Changes.

       

      (A)           Notwithstanding
anything herein to the contrary, the Conversion Rate applicable to each Security
that is surrendered for conversion, in accordance with this Article X, at any time during the
period (the “Make-Whole
Conversion Period”) from, and including, the effective date (the “Effective Date”) of a
Make-Whole Fundamental Change (which Effective Date the Company shall disclose
in the written notice and public announcement referred to in Section 10.15(E)) to, and including,
the date that is thirty (30) Business Days after such Effective Date (or, if
such Make-Whole Fundamental Change also constitutes a Fundamental Change, the
Fundamental Change Repurchase Date corresponding to such Fundamental Change)
shall be increased to an amount equal to the Conversion Rate that would, but for
this Section 10.15, otherwise apply to such
Security pursuant to this Article X, plus an amount equal to the
Make-Whole Applicable Increase.

       

      (B)           As
used herein, “Make-Whole
Applicable Increase” shall mean, with respect to a Make-Whole Fundamental
Change, the amount, set forth in the following table, which corresponds to the
Effective Date and the Applicable Price of such Make-Whole Fundamental
Change:


      
        
           


        

        
          -65-

          
            

          

        

        
           


        

      


      


       

      
        	 
      	
                Effective
      Date

              
	
                Applicable
      Price

              	
                November
      20, 2009

              	
                December
      1,

                2010

              	
                December
      1,

                2011

              	
                December
      1,

                2012

              	
                December
      1,

                2013

              	
                December
      1,

                2014

              	
                December
      1,

                2015

              
	
                $19.83

              	
                11.6373

              	
                11.6373

              	
                11.6373

              	
                11.6373

              	
                11.6373

              	
                11.6373

              	
                11.6373

              
	
                $25.00

              	
                9.2062

              	
                8.4451

              	
                7.7567

              	
                7.0637

              	
                6.2121

              	
                4.9420

              	
                1.2087

              
	
                $30.00

              	
                6.7481

              	
                6.0710

              	
                5.4242

              	
                4.7274

              	
                3.8381

              	
                2.5144

              	
                0.0000

              
	
                $35.00

              	
                5.1634

              	
                4.5767

              	
                4.0040

              	
                3.3750

              	
                2.5764

              	
                1.4535

              	
                0.0000

              
	
                $40.00

              	
                4.0757

              	
                3.5718

              	
                3.0769

              	
                2.5328

              	
                1.8552

              	
                0.9630

              	
                0.0000

              
	
                $45.00

              	
                3.2923

              	
                2.8603

              	
                2.4367

              	
                1.9744

              	
                1.4116

              	
                0.7122

              	
                0.0000

              
	
                $50.00

              	
                2.7065

              	
                2.3355

              	
                1.9737

              	
                1.5834

              	
                1.1189

              	
                0.5662

              	
                0.0000

              
	
                $55.00

              	
                2.2549

              	
                1.9352

              	
                1.6260

              	
                1.2969

              	
                0.9130

              	
                0.4693

              	
                0.0000

              
	
                $60.00

              	
                1.8983

              	
                1.6217

              	
                1.3567

              	
                1.0787

              	
                0.7600

              	
                0.3980

              	
                0.0000

              
	
                $65.00

              	
                1.6110

              	
                1.3708

              	
                1.1429

              	
                0.9072

              	
                0.6413

              	
                0.3417

              	
                0.0000

              
	
                $70.00

              	
                1.3756

              	
                1.1662

              	
                0.9695

              	
                0.7691

              	
                0.5458

              	
                0.2951

              	
                0.0000

              
	
                $75.00

              	
                1.1803

              	
                0.9970

              	
                0.8266

              	
                0.6555

              	
                0.4670

              	
                0.2555

              	
                0.0000

              
	
                $80.00

              	
                1.0162

              	
                0.8553

              	
                0.7072

              	
                0.5606

              	
                0.4008

              	
                0.2213

              	
                0.0000

              
	
                $85.00

              	
                0.8771

              	
                0.7354

              	
                0.6064

              	
                0.4803

              	
                0.3442

              	
                0.1913

              	
                0.0000

              
	
                $90.00

              	
                0.7583

              	
                0.6331

              	
                0.5204

              	
                0.4118

              	
                0.2954

              	
                0.1649

              	
                0.0000

              
	
                $95.00

              	
                0.6560

              	
                0.5453

              	
                0.4465

              	
                0.3527

              	
                0.2530

              	
                0.1415

              	
                0.0000

              
	
                $100.00

              	
                0.5676

              	
                0.4694

              	
                0.3828

              	
                0.3016

              	
                0.2160

              	
                0.1207

              	
                0.0000

              


      

      


      provided, however, that:

      


      (i)             if
the actual Applicable Price of such Make-Whole Fundamental Change is between two
(2) Applicable Prices listed in the table above under the column titled
“Applicable Price,” or if the actual Effective Date of such Make-Whole
Fundamental Change is between two Effective Dates listed in the table above in
the row immediately below the title “Effective Date,” then the Make-Whole
Applicable Increase for such Make-Whole Fundamental Change shall be determined
by linear interpolation between the Make-Whole Applicable Increases set forth
for such higher and lower Applicable Prices, or for such earlier and later
Effective Dates based on a three hundred and sixty five (365) day year, as
applicable;

       

      (ii)            if
the actual Applicable Price of such Make-Whole Fundamental Change is greater
than $100.00 per share (subject to adjustment in the same manner as the
Applicable Prices pursuant to Section 10.15(B)(iii)), or if the
actual Applicable Price of such Make-Whole Fundamental Change is less than
$19.83 per share (subject to adjustment in the same manner as the Applicable
Prices pursuant to Section 10.15(B)(iii)), then the
Make-Whole Applicable Increase shall be equal to zero (0);

       

      (iii)           if
an event occurs that requires, pursuant to this Article X (other than solely pursuant
to this Section 10.15), an adjustment to the
Conversion Rate, then, on the date and at the time such adjustment is so
required to be made, each Applicable Price set forth in the table above under
the column titled “Applicable Price” shall be deemed to be adjusted so that such
Applicable Price, at and after such time, shall be equal to the product of (1)
such Applicable Price as in effect immediately before such adjustment to such
Applicable Price and (2) a fraction whose numerator is the Conversion Rate in
effect immediately before such adjustment to the Conversion Rate and whose
denominator is the Conversion Rate to be in effect, in accordance with this
Article X, immediately after such
adjustment to the Conversion Rate;

       


      
        
           


        

        
          -66-

          
            

          

        

        
           


        

      


      


       

      (iv)           each
Make-Whole Applicable Increase amount set forth in the table above shall be
adjusted in the same manner, for the same events and at the same time as the
Conversion Rate is to be adjusted pursuant to Section 10.06 through Section 10.14; and

       

      (v)            in
no event shall the Conversion Rate applicable to any Security be increased
pursuant to this Section
10.15 to the
extent, but only to the extent, such increase shall cause the Conversion Rate
applicable to such Security to exceed 50.4286 shares per $1,000 principal amount
(the “Maximum Conversion
Rate”); provided, however, that the Maximum
Conversion Rate shall be adjusted at the same time and in the same manner in
which, and for the same events for which, the Conversion Rate is to be adjusted
pursuant to this Article
X.

       

      (C)           Upon
surrender of Securities for conversion in connection with a Make-Whole
Fundamental Change pursuant to Section 10.01(B)(iii), the Company
shall, at its option, satisfy its conversion obligation by delivering or paying,
as the case may be, shares of Common Stock (together with cash in lieu of any
fractional share), cash or a combination of cash and shares of Common Stock
(together with cash in lieu of any fractional share) in accordance with Section 10.02; provided, however, that if at the
effective time of a Common Stock Change Make-Whole Fundamental Change the
consideration for the Common Stock is comprised entirely of cash, for any
conversion of Securities following the Effective Date of such Common Stock
Change Make-Whole Fundamental Change, the conversion obligation shall be
calculated based solely on the Applicable Price for the transaction and shall be
deemed to be an amount equal to, per $1,000 principal amount of converted
Securities, the applicable Conversion Rate (including any Make-Whole Applicable
Increase), multiplied
by such Applicable Price.  In such event, the cash due upon
conversion shall be determined and paid to Holders in cash on the third Business
Day following the Conversion Date.

       

      (D)           As
used herein, “Applicable
Price” shall have the following meaning with respect to a Make-Whole
Fundamental Change: (a) if such Make-Whole Fundamental Change constitutes a
Common Stock Change Make-Whole Fundamental Change and the consideration
(excluding cash payments for fractional shares or pursuant to statutory
appraisal rights) for the Common Stock in such Common Stock Change Make-Whole
Fundamental Change consists solely of cash, then the “Applicable Price” with
respect to such Common Stock Change Make-Whole Fundamental Change shall be equal
to the cash amount paid per share of Common Stock in such Common Stock Change
Make-Whole Fundamental Change and (b) in all other circumstances, the
“Applicable Price” with respect to such Make-Whole Fundamental Change shall be
equal to the average of the Closing Sale Prices per share of Common Stock for
the five (5) consecutive Trading Days immediately preceding, but excluding, the
Effective Date of such Make-Whole Fundamental Change, which average shall be
appropriately adjusted by the Board of Directors, in its good faith
determination, 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 (5) consecutive Trading Days.

       


      
        
           


        

        
          -67-

          
            

          

        

        
           


        

      


      (E)           At
least thirty (30) Business Days before the anticipated Effective Date of each
proposed Make-Whole Fundamental Change, the Company shall mail to each Holder,
in accordance with Section
13.02, written
notice of, and shall publicly announce, through a reputable national newswire
service, the anticipated Effective Date of such proposed Make-Whole Fundamental
Change.  Each such notice and announcement shall also state that, in
connection with such Make-Whole Fundamental Change, the Company shall increase,
in accordance herewith, the Conversion Rate applicable to Securities entitled as
provided herein to such increase (along with a description of how such increase
shall be calculated and the time periods during which Securities must be
surrendered in order to be entitled to such increase).  No later than
the third Business Day after the Effective Date of each Make-Whole Fundamental
Change, the Company shall mail, in accordance with Section 13.02, written notice of, and
shall publicly announce, through a reputable national newswire service, such
Effective Date and the Make-Whole Applicable Increase applicable to such
Make-Whole Fundamental Change.

       

      (F)           For
avoidance of doubt, the provisions of this Section 10.15 shall not affect or
diminish the Company’s obligations, if any, pursuant to Article III with respect to a
Make-Whole Fundamental Change.

       

      (G)           Nothing
in this Section 10.15 shall prevent an
adjustment to the Conversion Rate pursuant to Section 10.06 in respect of a
Make-Whole Fundamental Change.

       

       

      XI.    
ONCERNING THE
HOLDERS

       

      11.01        Action by
Holders.

       

      Whenever
in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action, the Holders of such specified percentage have joined therein may be
evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Holders in person or by agent or proxy appointed in writing,
(ii) by the record of the Holders voting in favor thereof at any meeting of
Holders duly called and held in accordance with the provisions of
Article XII
or (iii) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.  Whenever the Company or the
Trustee solicits the taking of any action by the Holders of the Securities, the
Company or the Trustee may fix, but shall not be required to, in advance of such
solicitation, a date as the record date for determining Holders entitled to take
such action.  The record date if one is selected shall be not more
than fifteen (15) days prior to the date of commencement of solicitation of such
action.

       

      11.02        Proof of Execution by
Holders.

       

      Subject
to the provisions of Section7.01, Section 7.02 and Section 12.05, proof of the execution
of any instrument by a Holder or its agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Securities shall be proved by the security
register of the Registrar or by a certificate of the Registrar.  The
record of any Holders’ meeting shall be proved in the manner provided in Section 12.06.

       


      
        
           


        

        
          -68-

          
            

          

        

        
           


        

      


      11.03        Persons Deemed Absolute
Owners.

       

      The
Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion
Agent and any Registrar may deem the Person in whose name a Security shall be
registered upon the security register of the Registrar to be, and may treat it
as, the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Registrar) for the purpose of
receiving payment of or on account of the principal of and (subject to Section 2.12 and Section 4.01) accrued and unpaid
interest on such Security, for conversion of such Security and for all other
purposes; and neither the Company nor the Trustee nor any authenticating agent
nor any Paying Agent nor any Conversion Agent nor any Registrar shall be
affected by any notice to the contrary.  All such payments so made to
any Holder for the time being, or upon its order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Security.  Notwithstanding
anything to the contrary in this Indenture or the Securities following an Event
of Default, any Holder of a beneficial interest in a Global Security may
directly enforce against the Company, without the consent, solicitation, proxy,
authorization or any other action of the Depositary or any other Person, such
Holder’s right to exchange such beneficial interest for a Physical Security in
accordance with the provisions of this Indenture.

       

       

      XII.    
OLDERS’
MEETINGS.

       

      12.01        Purpose of
Meetings.

       

      A meeting
of Holders may be called at any time and from time to time pursuant to the
provisions of this Article
XII for any of
the following purposes:

       

      (A)           to
give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions of
Article VI;

       

      (B)           to
remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article VII;

       

      (C)           to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or

       

      (D)           to
take any other action authorized to be taken by or on behalf of the Holders of
any specified aggregate principal amount of the Securities under any other
provision of this Indenture or under applicable law.

       


      
        
           


        

        
          -69-

          
            

          

        

        
           


        

      


      12.02        Call of Meetings by
Trustee.

       

      The
Trustee may at any time call a meeting of Holders to take any action specified
in Section 12.01, to be held at such time
and at such place as the Trustee shall determine.  Notice of every
meeting of the Holders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 11.01, shall be mailed to
Holders of such Securities at their addresses as they shall appear on the
security register of the Registrar.  Such notice shall also be mailed
to the Company.  Such notices shall be mailed not less than twenty
(20) nor more than ninety (90) days prior to the date fixed for the
meeting.

       

      Any
meeting of Holders shall be valid without notice if the Holders of all
Securities then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the Holders of all Securities outstanding,
and if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived
notice.

       

      12.03        Call of Meetings by Company or
Holders.

       

      In case
at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in aggregate principal amount of the Securities then outstanding,
shall have requested the Trustee to call a meeting of Holders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed the notice of such meeting
within twenty (20) days after receipt of such request, then the Company or such
Holders may determine the time and the place for such meeting and may call such
meeting to take any action authorized in Section 12.01, by mailing notice
thereof as provided in Section 12.02.

       

      12.04        Qualifications for
Voting.

       

      To be
entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one
or more Securities on the record date pertaining to such meeting or (b) be a
Person appointed by an instrument in writing as proxy by a Holder of one or more
Securities on the record date pertaining to such meeting.  The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.

       

      12.05        Regulations.

       

      Notwithstanding
any other provision of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders, in regard to
proof of the holding of Securities and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.

       


      
        
           


        

        
          -70-

          
            

          

        

        
           


        

      


      


       

      The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders
as provided in Section12.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman.  A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote at the meeting.

       

      Subject
to the provisions of Section 2.09, at any meeting of
Holders each Holder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by such Holder or
proxyholder, as the case may be; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding.  The chairman of the meeting shall have no right to vote
other than by virtue of Securities held by it or instruments in writing as
aforesaid duly designating it as the proxy to vote on behalf of other
Holders.  Any meeting of Holders duly called pursuant to the
provisions of Section 12.02 or Section12.03 may be adjourned from
time to time by the Holders of a majority of the aggregate principal amount of
Securities represented at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.

       

      12.06        Voting.

       

      The vote
upon any resolution submitted to any meeting of Holders shall be by written
ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding principal amount of the Securities
held or represented by them.  The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting.  A record in duplicate of the proceedings
of each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 12.02.  The record
shall show the principal amount of the Securities voting in favor of or against
any resolution.  The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.

       

      Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.

       

      12.07        No Delay of Rights by
Meeting.

       

      Nothing
contained in this Article XII shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Securities.

       


      
        
           


        

        
          -71-

          
            

          

        

        
           


        

      


      


       

       

      XIII.    
MISCELLANEOUS

       

      13.01          [Reserved]

       

      13.02          Notices.

       

      Any
notice or communication by the Company or the Trustee to the other shall be
deemed to be duly given if made in writing and delivered:

       

      (A)           by
hand (in which case such notice shall be effective upon delivery);

       

      (B)           by
facsimile (in which case such notice shall be effective upon receipt of
confirmation of good transmission thereof); or

       

      (C)           by
overnight delivery by a nationally recognized courier service (in which case
such notice shall be effective on the Business Day immediately after being
deposited with such courier service),

       

      in each
case to the recipient party’s address or facsimile number, as applicable, set
forth in this Section
13.02.  The
Company or the Trustee by notice to the other may designate additional or
different addresses or facsimile numbers for subsequent notices or
communications.

       

      Any
notice or communication to a Holder shall be mailed to its address shown on the
register kept by the Registrar.  Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.

       

      If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.

       

      If the
Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee and each Securities Agent at the same time.  If the Trustee or
the Securities Agent is required, pursuant to the express terms of this
Indenture or the Securities, to mail a notice or communication to Holders, the
Trustee or the Securities Agent, as the case may be, shall also mail a copy of
such notice or communication to the Company.

       

      All
notices or communications shall be in writing.

       


      
        
           


        

        
          -72-

          
            

          

        

        
           


        

      


      The
Company’s address is:

       

      James
River Coal Company

      901 E.
Byrd Street, Suite 1600

      Richmond,
Virginia 23219

      Attention:
Chief Accounting Officer

      Facsimile:
(804) 780-0643

      


      with a copy to:

      


      Kilpatrick
Stockton LLP

      Suite
2800

      1100
Peachtree Street

      Atlanta,
Georgia 30309

      Attention:
David A. Stockton

      Facsimile:
(404) 541-3402

      


      The
Trustee’s address is:

       

      U.S. Bank
National Association

      1349 West
Peachtree Street, Suite 1050

      Atlanta,
GA 30309

      Attention: Corporate Trust
Services

      Facsimile: (404) 365-7946

      


      13.03        Communication by Holders with Other
Holders.

       

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

       

      13.04        Certificate and Opinion as to
Conditions Precedent.

       

      Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:

       

      (i)              an
Officer’s Certificate stating that, in the opinion of the signatories to such
Officer’s Certificate, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and

       

      (ii)             an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.

       

      Each
signatory to an Officer’s Certificate or an Opinion of Counsel may (if so
stated) rely, effectively, upon an Opinion of Counsel as to legal matters and an
Officer’s Certificate or certificates of public officials as to factual matters
if such signatory reasonably and in good faith believes in the accuracy of the
document relied upon.

       


      
        
           


        

        
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      13.05          Statements Required in Certificate or
Opinion.

       

      Each
Officer’s Certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:

       

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

       

      (ii)              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;

       

      (iii)            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

       

      (iv)            a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.

       

      13.06        Rules by Trustee and
Agents.

       

      The
Registrar, Paying Agent or Conversion Agent may make reasonable rules and set
reasonable requirements for their respective functions.

       

      13.07        Legal Holidays.

       

      A “Legal Holiday” is a Saturday,
a Sunday or a day on which banking institutions are not required to be open in
the City of New York, in the State of New York.  If a payment date is
a Legal Holiday, payment may be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on that payment for the intervening
period.

       

      A “Business Day” is a day other
than a Legal Holiday.

       

      13.08        Duplicate
Originals.

       

      The
parties may sign any number of copies of this Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.  Delivery of an executed counterpart by facsimile shall be
effective as delivery of a manually executed counterpart thereof.

       

      13.09        Governing Law.

       

      THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW,
SHALL GOVERN THIS INDENTURE AND THE SECURITIES AND ANY CLAIM, CONTROVERSY OR
DISPUTE ARISING UNDER, OR RELATING TO, THIS INDENTURE OR THE
SECURITIES.

       


      
        
           


        

        
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      13.10        No Adverse Interpretation of Other
Agreements.

       

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

       

      13.11        Successors.

       

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

       

      13.12        Separability.

       

      In case
any provision 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 and a Holder
shall have no claim therefor against any party hereto.

       

      13.13        Table of Contents, Headings,
etc.

       

      The Table
of Contents, Cross-Reference Table 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.

       

      13.14        Calculations in Respect of the
Securities.

       

      The
Company and its agents shall make all calculations under this Indenture and the
Securities.  These calculations include, but are not limited to,
determinations of the Trading Price of the Securities, whether the Closing Sale
Price of Common Stock exceeds the Conversion Trigger Price as specified in Section 10.01(B)(i), the
Volume-Weighted Average Price, the Daily Conversion Value, the Daily Settlement
Amount and the Closing Sale Price of the Common Stock, the amount of cash and/or
number of shares, if any payable or deliverable upon conversion of the
Securities and amounts of interest (including Additional Interest) payable on
the Securities.  The Company and its agents shall make all of these
calculations in good faith, and, absent manifest error, such calculations shall
be final and binding on all Holders.  The Company shall provide a copy
of such calculations to the Trustee as required hereunder, and, absent such
manifest error, the Trustee shall be entitled to conclusively rely on the
accuracy of any such calculation without independent verification.

       

      13.15        No Personal Liability of Directors,
Officers, Employees or Shareholders.

       

      None of
the Company’s past, present or future directors, officers, employees or
shareholders, as such, shall have any liability for any of the Company’s
obligations under this Indenture or the Securities or for any claim based on, or
in respect or by reason of, such obligations or their creation.  By
accepting a Security, each holder waives and releases all such
liability.  This waiver and release is part of the consideration for
the issue of the Securities.

       


      
        
           


        

        
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      13.16        Force Majeure.

       

      In no
event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God and interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.

       

      [The Remainder of
This Page Intentionally Left Blank; Signature Page Follows]

       

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

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

       

      
        	 
      	
                James
      River Coal Company

              
	 
      	
                 
      

                 

              
	 
      	
                By:      /s/ Peter T.
      Socha                   
      

              
	 
      	
                Name:    Peter
      T. Socha

              
	 
      	
                Title:    Chief
      Executive Officer

              


      

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
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                U.S. Bank National
      Association, as Trustee

              
	 
      	
                 
      

                 

              
	 
      	
                By:      /s/ Muriel
      Shaw                                        
         

              
	 
      	
                Name:    Muriel
      Shaw

              
	 
      	
                Title:     Assistant
      Vice President

              


      

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
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      EXHIBIT
A

       

      [Face of
Security]

       

      JAMES
RIVER COAL COMPANY

       

      Certificate
No. _______

       

      [INSERT
PRIVATE PLACEMENT LEGEND (SECURITIES) AND GLOBAL SECURITY LEGEND AS
REQUIRED]

       

      4.50%
Convertible Senior Notes due 2015 (the “Securities”)

       

      CUSIP No.
470355 AC2

       

      James
River Coal Company, a Virginia corporation (the “Company,” which term includes
any successor corporation or other entity under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to Cede & Co.,
or its registered assigns, the principal sum [of [___________] dollars
($[___________])]1 [as set forth in the
“Schedule of Exchanges of Interests in the Global Security” attached hereto,
which amount, taken together with the principal amounts of all other outstanding
Securities, shall not, unless permitted by the Indenture, exceed [___________]
dollars ($[___________]) in aggregate at any time, in accordance with the rules
and procedures of the Depositary]2, on December 1, 2015,
and to pay interest thereon, as provided on the reverse hereof, until the
principal and any unpaid and accrued interest are paid or duly provided
for.

       

      Interest
Payment Dates: June 1 and December 1, with the first payment to be made on June
1, 2010.

       

      Record
Dates: May 15 and November 15.

       

      The
provisions on the back of this certificate are incorporated as if set forth on
the face hereof.

       

      
 

      _______________________

        
           

          1 This is included for
Physical Securities.

        

         

        2 This is included for
Global Securities.

      

       


      
        
           


        

        
          A-1

          
            

          

        

        
           


        

      


      


       

      IN WITNESS WHEREOF, James
River Coal Company has caused this instrument to be duly signed.

       

      
        	 
      	
                James
      River Coal Company

              
	 
      	
                 
      

                 

              
	 
      	
                By: 
      _________________________________

              
	 
      	
                Name:

              
	 
      	
                Title:

              


      

       

      Dated:
________________

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
          A-2

          
            

          

        

        
           


        

      


      TRUSTEE’S
CERTIFICATE OF AUTHENTICATION

       

      This is
one of the Securities referred to

      in the
within-mentioned Indenture.

       

      U.S. Bank National
Association, as Trustee

       

       

      By:                                                                

               
Authorized Signatory

       

      Dated:
__________________

       

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
          A-3

          
            

          

        

        
           


        

      


      [REVERSE
OF SECURITY]

       

      JAMES
RIVER COAL COMPANY

       

      4.50% Convertible Senior Notes due
2015

       

      1.           Interest.  James
River Coal Company, a Virginia corporation (the “Company”), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.  The Company will pay interest, payable semi-annually in
arrears, on June 1 and December 1 of each year, with the first payment to be
made on June 1, 2010.  Interest on the Securities will accrue on the
principal amount from, and including, the most recent date to which interest has
been paid or provided for or, if no interest has been paid, from, and including,
November 20, 2009, in each case to, but excluding, the next Interest Payment
Date or Maturity Date, as the case may be.  Interest will be computed
on the basis of a 360-day year of twelve 30-day months.  The Company
shall pay, in cash, interest on any overdue amount (including, to the extent
permitted by applicable law, overdue interest) at the rate borne by the
Securities.  In certain circumstances, Additional Interest will be
payable in accordance with Section 4.09(A), Section 4.09(B) and Section 6.02(B) of the Indenture and
any reference to “interest” shall be deemed to include any such Additional
Interest.

       

      2.           Maturity.  The
Securities will mature on December 1, 2015.

       

      3.           Method of
Payment.  Except as provided in the Indenture (as defined
below), the Company will pay interest on the Securities to the Persons who are
Holders of record of Securities at the close of business on the Record Date set
forth on the face of this Security immediately preceding the applicable Interest
Payment Date.  Holders must surrender Securities to a Paying Agent to
collect the principal amount plus, if applicable, accrued and unpaid interest,
if any, or the Fundamental Change Repurchase Price, payable as herein provided
on the Maturity Date or Fundamental Change Repurchase Date, as
applicable.  The Company will pay, in money of the United States that
at the time of payment is legal tender for payment of public and private debts,
all amounts due in cash with respect to the Securities, which amounts shall be
paid (A) in the case this Security is a Global Security, by wire transfer of
immediately available funds to the account designated by the Depositary or its
nominee; (B) in the case this Security is a Physical Security held by a Holder
of more than five million dollars ($5,000,000) in aggregate principal amount of
Securities, by wire transfer of immediately available funds to the account
specified by such Holder or, if such Holder does not specify an account, by
mailing a check to the address of such Holder set forth in the register of the
Registrar; and (C) in the case this Security is a Physical Security held by a
Holder of five million dollars ($5,000,000) or less in aggregate principal
amount of Securities, by mailing a check to the address of such Holder set forth
in the register of the Registrar.

       

      4.           Paying Agent, Registrar, Conversion
Agent.  Initially, U.S. Bank National Association (the “Trustee”) will act as Paying
Agent, Registrar, Bid Solicitation Agent and Conversion Agent.  The
Company may change any Paying Agent, Registrar, Bid Solicitation Agent or
Conversion Agent without prior notice.

       


      
        
           


        

        
          A-4

          
            

          

        

        
           


        

      


      


       

      5.           Indenture.  The
Company issued the Securities under an Indenture dated as of November 20, 2009
(the “Indenture”)
between the Company and the Trustee.  The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the
“TIA”) as amended and in
effect from time to time.  The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms.  The Securities are general unsecured senior obligations
of the Company limited to $172,500,000 aggregate principal amount, except as
otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen
Securities).  Terms used herein without definition and which are
defined in the Indenture have the meanings assigned to them in the
Indenture.  In the event of any inconsistency between the terms of
this Security and the terms of the Indenture, the terms of the Indenture shall
control.

       

      6.           No Redemption.  The
Securities are not redeemable at the option of the Company prior to the Maturity
Date, and no sinking fund is provided for the Securities.

       

      7.           Repurchase at Option of Holder Upon a
Fundamental Change. Subject to the terms and conditions of the Indenture,
in the event of a Fundamental Change, each Holder of the Securities shall have
the right, at the Holder’s option, to require the Company to repurchase such
Holder’s Securities including any portion thereof which is $1,000 in principal
amount or any integral multiple thereof on a date selected by the Company (the
“Fundamental Change Repurchase
Date”), which date is no later than thirty five (35) days, nor earlier
than twenty (20) days, after the date on which notice of such Fundamental Change
is mailed in accordance with the Indenture, at a price payable in cash equal to
one hundred percent (100%) of the principal amount of such Security, plus
accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase
Date (the “Fundamental Change
Repurchase Price”); provided, however, that if such
Fundamental Change Repurchase Date is after a Record Date for the payment of an
installment of interest and on or before the related Interest Payment Date, then
the full amount of accrued and unpaid interest, if any, to, but excluding, such
Interest Payment Date will be paid on such Interest Payment Date to the Holder
of record of such Securities at the close of business on such Record Date
(without any surrender of such Securities by such Holder), and the Fundamental
Change Repurchase Price shall not include any accrued but unpaid
interest.

       

      8.           Conversion.

       

      Upon the occurrence of certain events
and during certain periods, the Securities shall be convertible into cash,
shares of Common Stock, or a combination thereof in accordance with Article X of the
Indenture.  To convert a Security, a Holder must satisfy the
requirements of Section 10.02(A) of the
Indenture.  A Holder may convert a portion of a Security if the
portion is $1,000 principal amount or an integral multiple of $1,000 principal
amount.

       

      Notwithstanding anything herein to the
contrary, no Security may be converted after the close of business on the
Business Day immediately preceding the Maturity Date.

       

      Upon conversion of a Security, the
Holder thereof shall be entitled to receive the cash, shares of Common Stock, or
a combination thereof, payable upon conversion in accordance with Article X of the
Indenture.

       


      
        
           


        

        
          A-5

          
            

          

        

        
           


        

      


       

      The initial Conversion Rate is 38.7913
shares of Common Stock per $1,000 principal amount of Securities (which results
in an effective initial Conversion Price of approximately $25.78 per share)
subject to adjustment in the event of certain circumstances as specified in the
Indenture.  The Company will deliver cash in lieu of any fractional
share.

       

      The Conversion Rate applicable to each
Security that is surrendered for conversion, in accordance with the Securities
and Article X of the Indenture, at any
time during the Make-Whole Conversion Period with respect to a Make-Whole
Fundamental Change shall be increased to an amount equal to the Conversion Rate
that would, but for Section
10.15 of the
Indenture, otherwise apply to such Security pursuant to Article X of the Indenture, plus an
amount equal to the Make-Whole Applicable Increase.

       

      9.           Denominations, Transfer,
Exchange.  The Securities are in registered form, without
coupons, in denominations of $1,000 principal amount and integral multiples of
$1,000 principal amount.  The transfer of Securities may be registered
and Securities may be exchanged as provided in the Indenture.  The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents.  No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge that may be imposed in connection with certain transfers or exchanges as
set forth in the Indenture.  The Company or the Trustee, as the case
may be, shall not be required to register the transfer of or exchange any
Security for which a Purchase Notice has been delivered, and not withdrawn, in
accordance with the Indenture, except the unrepurchased portion of Securities
being repurchased in part.

       

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

       

      11.           Merger or
Consolidation.  The Company shall not consolidate with, or
merge with or into, or sell, transfer, lease, convey or otherwise dispose of all
or substantially all of the consolidated property or assets of the Company to,
another Person, whether in a single transaction or series of related
transactions, unless (i) the Company is the continuing corporation or such
other Person is a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and such
other Person assumes by supplemental indenture all the obligations of the
Company under the Securities and the Indenture and (ii) immediately after
giving effect to the transaction or series of transactions, no Default or Event
of Default shall exist, as set forth in Article V of the
Indenture.

       

      12.           Amendments, Supplements and
Waivers.  Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities,
and certain existing Defaults or Events of Default may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding.  In accordance with the terms of the
Indenture, the Company, with the consent of the Trustee, may amend or supplement
this Indenture or the Securities without notice to or the consent of any
Securityholder: (i) to comply with Section 5.01 or Section 10.12 of the Indenture; (ii)
to secure the obligations of the Company in respect of the Securities; (iii) to
evidence and provide for the appointment of a successor Trustee in accordance
with Section 7.08 of the Indenture; (iv)
to comply with the provisions of any clearing agency, clearing corporation or
clearing system, or the requirements of the Trustee or the Registrar, relating
to transfers and exchanges of the Securities pursuant to the Indenture; (v) to
add to the covenants of the Company described in the Indenture for the benefit
of Securityholders or to surrender any right or power conferred upon the
Company; or (vi) to make provisions with respect to adjustments to the
Conversion Rate as required by the Indenture or to increase the Conversion Rate
in accordance with the Indenture.  In addition, the Company and the
Trustee may enter into a supplemental indenture without the consent of Holders
of the Securities to (i) cure any ambiguity, defect, omission or inconsistency
in the Indenture in a manner that does not, individually or in the aggregate
with all other changes, adversely affect the rights of any Holder in any respect
or (ii) conform the Indenture or the Securities to the description thereof
contained in the Offering Memorandum under the caption “Description of notes,”
as supplemented by the related pricing term sheet.


       

      13.           Defaults and
Remedies.

       

      If an Event of Default (excluding an
Event of Default specified in Section 6.01(ix) or (x) of the Indenture with
respect to the Company (but including an Event of Default specified in Section 6.01(ix) or (x) of the Indenture solely
with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of
the Company)) occurs and is continuing, the Trustee by notice to the Company or
the Holders of at least twenty five percent (25%) in principal amount of the
Securities then outstanding by notice to the Company and the Trustee may declare
the Securities to be due and payable.  Upon such declaration, the
principal of, and any accrued and unpaid interest on, all Securities shall be
due and payable immediately.  If an Event of Default specified in
Section 6.01(ix) or (x) of the Indenture with
respect to the Company (excluding, for purposes of this sentence, an Event of
Default specified in Section 6.01(ix) or (x) of the Indenture solely
with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of
the Company) occurs, the principal of, and accrued and unpaid interest on, all
the Securities 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.  Subject to
certain exceptions, the Holders of a majority in aggregate principal amount of
the Securities then outstanding by written notice to the Trustee may rescind or
annul an acceleration and its consequences if (A) the rescission would not
conflict with any order or decree, (B) all existing Events of Default, except
the nonpayment of principal or interest that has become due solely because of
the acceleration, have been cured or waived and (C) all amounts due to the
Trustee under Section
7.07 of the
Indenture have been paid.

       

      If a Default or Event of Default occurs
and is continuing as to which the Trustee has received written notice pursuant
to the provisions of the Indenture, or as to which a Responsible Officer of the
Trustee shall have actual knowledge, the Trustee shall mail to each Holder a
notice of the Default or Event of Default within thirty (30) days after it
occurs unless such Default or Event of Default has been cured or
waived.  Except in the case of a Default or Event of Default in
payment or delivery of any amounts due (including principal, interest, the
Fundamental Change Repurchase Price or the consideration due upon conversion)
with respect to any Security, the Trustee may withhold the notice if, and so
long as it in good faith determines that, withholding the notice is in the best
interests of Holders.  The Company must deliver to the Trustee an
annual compliance certificate.


      
        
           


        

        
          A-6

          
            

          

        

        
           


        

      


      


       

      14.           No Registration
Rights.  The Holders are not entitled to registration
rights.

       

      15.           Trustee Dealings with the
Company.  The Trustee under the Indenture, or any banking
institution serving as successor Trustee thereunder, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for, the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.

       

      16.           Authentication.  This
Security shall not be valid until authenticated by the manual or facsimile
signature of the Trustee or an authenticating agent in accordance with the
Indenture.

       

      17.           Abbreviations.  Customary
abbreviations may be used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

       

      THE
COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A
COPY OF THE INDENTURE.  REQUESTS MAY BE MADE TO:

       

      James
River Coal Company

      901 E.
Byrd Street, Suite 1600

      Richmond,
Virginia 23219

      Attn:
Chief Accounting Officer

      



      
        
           


        

        
          A-7

          
            

          

        

        
           


        

      


      FORM OF
ASSIGNMENT

      
        	 
      
	
                I
      or we assign to

              	 
      
	
                PLEASE
      INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER

                
                   

                   

                   

                

              	 
      
	
                
                  (please
      print or type name and address)

                   

                   

                

              
	 
      
	
                
                   

                  the
      within Security and all rights thereunder, and hereby irrevocably
      constitute and appoint

                

                 

                 

              
	
                
                   

                   

                

                
                  Attorney
      to transfer the Security on the books of the Company with full power of
      substitution in the premises.

                   

                

              
	
                Dated:                                                                  

              	
                
                  
      

                NOTICE:  The
      signature on this assignment must correspond with the name as it appears
      upon the face of the within Security in every particular without
      alteration or enlargement or any change whatsoever and be guaranteed by a
      guarantor institution participating in the Securities Transfer Agents
      Medallion Program or in such other guarantee program acceptable to the
      Registrar.

              
	
                Signature
      Guarantee:                                                                                                                                    

              


      


      
        
           


        

        
          A-8

          
            

          

        

        
           


        

      


      In
connection with any transfer of this Security occurring prior to the Resale
Restriction Termination Date, the undersigned confirms that it is making, and it
has not utilized any general solicitation or general advertising in connection
with, the transfer:

       

      [Check
One]

       

      
        	
                (1)

              	
                ____

              	
                to
      James River Coal Company or any Subsidiary thereof; or

              
	
                (2)

              	
                ____

              	
                pursuant
      to a registration statement which has become effective under the
      Securities Act of 1933, as amended (the “Securities Act”);
      or

              
	
                (3)

              	
                ____

              	
                to
      a Qualified Institutional Buyer in compliance with Rule 144A under the
      Securities Act; or

              
	
                (4)

              	
                ____

              	
                pursuant
      to an exemption from registration provided by Rule 144 under the
      Securities Act (if available) or any other available exemption from the
      registration requirements of the Securities
Act.

              


      

      


      Unless
one of the items (1) through (4) is checked, the Registrar will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item (4) is
checked, the Company, the transfer agent or the Registrar may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications and other evidence as the Registrar or
the Company have reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as
amended.  If item (3) is checked, the purchaser must complete the
certification below.

       

      If none
of the foregoing items are checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been
satisfied.

       

      
        	
                Dated:
      ____________________

              	
                Signed:

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

              


      

       

      Signature
Guarantee:                                                                                                                                          

       


      
        
           


        

        
          A-9

          
            

          

        

        
           


        

      


      TO BE
COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED

       

      The
undersigned represents and warrants that it is purchasing this Security for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A and acknowledges that the
transferor is relying upon the undersigned’s foregoing representations in order
to claim the exemption from registration provided by Rule 144A.

       

      
        	
                Dated:
      ______________________________________________

              	 
      
	 
      	
                NOTICE:     To
      be executed by an executive officer

              


      

      


       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
 

      
        
           


        

        
          A-10

          
            

          

        

        
           


        

      


      CONVERSION
NOTICE

       

      
        	
                To
      convert this Security in accordance with the Indenture, check the
      box:  o

              
	 
      
	
                To
      convert only part of this Security, state the principal amount to be
      converted (must be in multiples of $1,000):

                 

                $__________________

                 

                If
      you want the stock certificate representing the Common Stock, if any,
      issuable upon
      conversion made out in another person’s name, fill in the form
      below:

                 

                 

                
                  
      

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

                 

                 

                
                  
       

                
                  
       

                  
      

                 

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

              


      

       

      
        
 

      
         

        
          	Date:______________  	Signature(s): 
      _______________________________________________


        

         

      

       

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


      

       

      
         

      

      
      

       

      
        	Signature(s)
      guaranteed by:  	 
	 	(All signatures must
      be guaranteed by a guarantor institution participating in the Securities
      Transfer Agents Medallion Program or in such other guarantee program
      acceptable to the Trustee.)


      

       

                                                                                                                                              

       

       


      
        
           


        

        
          A-11

          
            

          

        

        
           


        

      


      PURCHASE
NOTICE

       

      Certificate
No. of Security:  ___________

       

      If you
want to elect to have this Security purchased by the Company pursuant to Section3.02 of the Indenture, check
the box:

       

      If you
want to elect to have only part of this Security purchased by the Company
pursuant to Section
3.02 of the Indenture, state
the principal amount to be so purchased by the Company:

       

      $
__________________________________

      (in an
integral multiple of $1,000)

       

      
        	
                Date:__________________

              	
                Signature(s):                                                                                                   
        

                 

                 

                

                  
      

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

                 

                 

              
	
                Signature(s)
      guaranteed by:

              	
                

                  
      

                (All
      signatures must be guaranteed by a guarantor institution participating in
      the Securities Transfer Agents Medallion Program or in such other
      guarantee program acceptable to the
Trustee.)

              


      

       
 

       

       

       

       

       

       

       

       

       

       

       

       

       


      
        
           


        

        
          A-12

          
            

          

        

        
           


        

      


      SCHEDULE A3

       

      SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY

       

      


       

      James
River Coal Company

       

      4.50%
Convertible Senior Notes due 2015

       

      The
initial principal amount of this Global Security is _______ DOLLARS
($[_________]).  The following increases or decreases in this Global
Security have been made:

       

      
        	
                
                  Date
      of Exchange

                

              	 	
                
                  Amount
      of 

                  decrease
      in 

                  Principal
      Amount

                   of
      this Global 

                  Security

                

              	 	
                
                  Amount
      of 

                  increase
      in 

                  Principal
      Amount 

                  of
      this Global 

                  Security

                

              	 	
                
                  Principal
      Amount 

                  of
      this Global 

                  Security
      following 

                  such
      decrease or

                   increase

                

              	 	
                
                  Signature
      of

                   authorized
      

                  signatory
      of 

                  Trustee
      or 

                  Custodian

                

              
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      
	 
      	 	 
      	 	 
      	 	 
      	 	 
      


      

      
 

      
        ________________

          3 This is included for
Global Securities.

        

         

      


      
        
           


        

        
          A-1

          
            

          

        

        
           


        

      


      EXHIBIT
B-1A

       

      FORM OF
PRIVATE PLACEMENT LEGEND (SECURITIES)

       

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

       

      BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:

       

      
        	
                 
      

              	
                (A)

              	
                TO
      THE JAMES RIVER COAL COMPANY OR ANY SUBSIDIARY THEREOF;
  OR

              


      

       

      
        	
                 
      

              	
                (B)

              	
                PURSUANT
      TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
      SECURITIES ACT; OR

              


      

       

      
        	
                 
      

              	
                (C)

              	
                TO
      A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
      SECURITIES ACT; OR

              


      

       

      
        	
                 
      

              	
                (D)

              	
                PURSUANT
      TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
      SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.

              


      

       

      PRIOR TO
THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) ABOVE, THE
COMPANY, THE TRUSTEE AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

       


      
        
           


        

        
          B-1
A-1

          
            

          

        

        
           


        

      


      EXHIBIT
B-1B

       

      FORM OF
PRIVATE PLACEMENT LEGEND (COMMON STOCK)

       

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

       

      BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:

       

      
        	
                 
      

              	
                (A)

              	
                TO
      THE JAMES RIVER COAL COMPANY OR ANY SUBSIDIARY THEREOF;
  OR

              


      

       

      
        	
                 
      

              	
                (B)

              	
                PURSUANT
      TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
      SECURITIES ACT; OR

              


      

       

      
        	
                 
      

              	
                (C)

              	
                TO
      A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
      SECURITIES ACT; OR

              


      

       

      
        	
                 
      

              	
                (D)

              	
                PURSUANT
      TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
      SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.

              


      

       

      PRIOR TO
THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) ABOVE, THE
COMPANY, THE TRUSTEE AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY
REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

      



      
        
           


        

        
          B-1
B-1

          
            

          

        

        
           


        

      


      EXHIBIT
B-2

       

      FORM OF
LEGEND FOR GLOBAL SECURITY

       

      Any
Global Security authenticated and delivered hereunder shall bear a legend (which
would be in addition to any other legends required in the case of a Restricted
Security) in substantially the following form:

       

      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 OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.

       

      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.

       

      TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF
THE INDENTURE.

       

      


       


      
        
           


        

        
          B-2-1

          
            

          

        

        
           


        

      


      EXHIBIT
C

       

      Form of Notice of Transfer
Pursuant to Registration Statement

       

      James
River Coal Company

      901 E.
Byrd Street, Suite 1600

      Richmond,
Virginia 23219

      Attention:
Chief Accounting Officer

      


      U.S. Bank
National Association

      100 Wall
Street, Suite 1600

      New York,
NY 10005

      Attention:
Corporate Trust Services

      Facsimile:  (212)
809-4993

      


       

      
        	
                 
      

              	
                Re:

              	
                James
      River Coal Company (the “Company”) 4.50%
      Convertible Senior Notes due 2015 (the “Securities”)

              


      

       

      Ladies
and Gentlemen:

       

      Please be
advised that _____________ has transferred $___________ aggregate principal
amount of the Securities and ________ shares of Common Stock, par value $0.01
per share, of the Company issued on conversion of the Securities (“Common Stock”) pursuant to an
effective Shelf Registration Statement on Form S-3 (File No.
333-________).

       

      We hereby
certify that the prospectus delivery requirements, if any, of the Securities Act
of 1933 as amended, have been satisfied with respect to the transfer described
above and that the above-named beneficial owner of the Securities or Common
Stock is named as a “Selling Security Holder” in the Prospectus dated _________,
or in amendments or supplements thereto (the “Prospectus”), and that the
aggregate principal amount of the Securities and the number of shares of Common
Stock transferred are [a portion of] the Securities and Common Stock listed in
such Prospectus, as amended or supplemented, opposite such owner’s
name.

       

      
      

       

      
        	 	Very truly yours,
      

                 

                


                 

                
                  _________________________

                

                                 
          (Name)

              


      

       

       

       

       

      


       


      
        
           


        

        
          C-1