Exhibit 4.01


 


 


 


 


	
  DEXCOM, INC.,

  
	
  as Issuer

  
	
   

  
	
  AND

  
	
   

  
	
  Wells Fargo
  Bank, National Association,

  
	
  as Trustee

  
	
   

  
	
  INDENTURE

  
	
  Dated as of
  March 9, 2007

  
	
   

  
	
  4.75%
  Convertible Senior Notes due 2027

  



 
















TABLE OF
CONTENTS


	
  

  	
  

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1. Definitions and Other Provisions of General Application

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Compliance Certificates and
  Opinions

  	
  11

  
	
  Section 1.03

  	
  Form of Documents Delivered to
  Trustee

  	
  11

  
	
  Section 1.04

  	
  Acts of Holders; Record Dates.

  	
  12

  
	
  Section 1.05

  	
  Notices, Etc., to Trustee and
  Company

  	
  13

  
	
  Section 1.06

  	
  Notice to Holders; Waiver

  	
  13

  
	
  Section 1.07

  	
  Conflict with Trust Indenture Act

  	
  13

  
	
  Section 1.08

  	
  Effect of Headings and Table of
  Contents

  	
  14

  
	
  Section 1.09

  	
  Successors and Assigns

  	
  14

  
	
  Section 1.10

  	
  Severability Clause

  	
  14

  
	
  Section 1.11

  	
  Benefits of Indenture

  	
  14

  
	
  Section 1.12

  	
  Governing Law

  	
  14

  
	
  Section 1.13

  	
  No Recourse Against Others

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2. Security Forms

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Forms Generally

  	
  14

  
	
  Section 2.02

  	
  Form of Face of Security

  	
  15

  
	
  Section 2.03

  	
  Form of Reverse of Security.

  	
  18

  
	
  Section 2.04

  	
  Form of Trustee’s Certificate of
  Authentication

  	
  26

  
	
  Section 2.05

  	
  Legend on Restricted Securities

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3. The Securities

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Title and Terms; Payments

  	
  27

  
	
  Section 3.02

  	
  Ranking

  	
  27

  
	
  Section 3.03

  	
  Denominations

  	
  27

  
	
  Section 3.04

  	
  Execution, Authentication,
  Delivery and Dating

  	
  28

  
	
  Section 3.05

  	
  Temporary Securities

  	
  28

  
	
  Section 3.06

  	
  Registration; Registration of
  Transfer and Exchange; Restrictions on Transfer.

  	
  29

  
	
  Section 3.07

  	
  Mutilated, Destroyed, Lost and
  Stolen Securities

  	
  30

  
	
  Section 3.08

  	
  Persons Deemed Owners

  	
  31

  
	
  Section 3.09

  	
  Book-Entry Provisions for Global
  Securities.

  	
  31

  
	
  Section 3.10

  	
  Cancellation and Transfer
  Provisions

  	
  33

  
	
  Section 3.11

  	
  CUSIP Numbers

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4. Particular Covenants of the Company 

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Principal and Interest

  	
  34

  
	
  Section 4.02

  	
  Maintenance of Office or Agency

  	
  34

  
	
  Section 4.03

  	
  Appointments to Fill Vacancies in
  Trustee’s Office

  	
  35

  



 



 i
 









 


	
  Section 4.04

  	
  Provisions as to Paying Agent.

  	
   

  	
  35

  
	
  Section 4.05

  	
  Existence

  	
   

  	
  36

  
	
  Section 4.06

  	
  Maintenance of Properties

  	
   

  	
  36

  
	
  Section 4.07

  	
  Payment of Taxes and Other Claims

  	
   

  	
  36

  
	
  Section 4.08

  	
  Rule 144A Information Requirement

  	
   

  	
  37

  
	
  Section 4.09

  	
  Resale of Certain Securities

  	
   

  	
  37

  
	
  Section 4.10

  	
  Commission Filings and Reports

  	
   

  	
  37

  
	
  Section 4.11

  	
  Book-Entry System

  	
   

  	
  38

  
	
  Section 4.12

  	
  Additional Interest under the
  Registration Rights Agreement and Special Interest under this Indenture

  	
   

  	
  38

  
	
  Section 4.13

  	
  Stay; Extension and Usury Laws

  	
   

  	
  38

  
	
  Section 4.14

  	
  Compliance Certificate

  	
   

  	
  38

  
	
  Section 4.15

  	
  Incurrence of Indebtedness.

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5. Redemption and Repurchase

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Selection of Securities to Be
  Redeemed.

  	
   

  	
  39

  
	
  Section 5.02

  	
  Notice of Redemption.

  	
   

  	
  40

  
	
  Section 5.03

  	
  Effect of Notice of Redemption.

  	
   

  	
  41

  
	
  Section 5.04

  	
  Deposit of Redemption Price.

  	
   

  	
  41

  
	
  Section 5.05

  	
  Optional Redemption.

  	
   

  	
  41

  
	
  Section 5.06

  	
  Mandatory Redemption.

  	
   

  	
  42

  
	
  Section 5.07

  	
  Repurchase at Option of Holders
  Upon a Fundamental Change.

  	
   

  	
  42

  
	
  Section 5.08

  	
  Effect of Fundamental Change
  Repurchase Notice

  	
   

  	
  44

  
	
  Section 5.09

  	
  Withdrawal of Fundamental Change
  Repurchase Notice.

  	
   

  	
  44

  
	
  Section 5.10

  	
  Deposit of Fundamental Change
  Repurchase Price

  	
   

  	
  45

  
	
  Section 5.11

  	
  Repurchase of Securities at the
  Option of the Holder on Specified Dates

  	
   

  	
  45

  
	
  Section 5.12

  	
  Securities Redeemed or Repurchased
  in Whole or in Part

  	
   

  	
  47

  
	
  Section 5.13

  	
  Covenant to Comply With Securities
  Laws Upon Repurchase of Securities

  	
   

  	
  48

  
	
  Section 5.14

  	
  Repayment to the Company

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6. Conversion

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Right to Convert.

  	
   

  	
  48

  
	
  Section 6.02

  	
  Automatic Conversion

  	
   

  	
  48

  
	
  Section 6.03

  	
  Conversion Procedure.

  	
   

  	
  49

  
	
  Section 6.04

  	
  Settlement Upon Conversion.

  	
   

  	
  51

  
	
  Section 6.05

  	
  Adjustment of Conversion Rate

  	
   

  	
  52

  
	
  Section 6.06

  	
  Effect of Reclassification,
  Consolidation, Merger or Sale

  	
   

  	
  58

  
	
  Section 6.07

  	
  Adjustments of Average Prices

  	
   

  	
  60

  
	
  Section 6.08

  	
  Adjustments Upon Certain
  Fundamental Changes.

  	
   

  	
  60

  
	
  Section 6.09

  	
  Taxes on Shares Issued

  	
   

  	
  61

  
	
  Section 6.10

  	
  Reservation of Shares; Shares to
  be Fully Paid; Compliance With Governmental Requirements; Listing of Common
  Stock

  	
   

  	
  61

  
	
  Section 6.11

  	
  Responsibility of Trustee

  	
   

  	
  61

  



 



 ii
 









 


	
  Section 6.12

  	
  Notice to Holders Prior to Certain
  Actions

  	
   

  	
  62

  
	
  Section 6.13

  	
  Stockholder Rights Plan

  	
   

  	
  63

  
	
  Section 6.14

  	
  Company Determination Final

  	
   

  	
  63

  
	
  Section 6.15

  	
  Exchange in Lieu of Conversion.

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7. Events of Default; Remedies

  	
   

  	
  64

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Events of Default

  	
   

  	
  64

  
	
  Section 7.02

  	
  Acceleration of Maturity;
  Rescission and Annulment.

  	
   

  	
  65

  
	
  Section 7.03

  	
  Collection of Indebtedness and
  Suits for Enforcement by Trustee

  	
   

  	
  66

  
	
  Section 7.04

  	
  Trustee May File Proofs of Claim

  	
   

  	
  67

  
	
  Section 7.05

  	
  Application of Money Collected

  	
   

  	
  67

  
	
  Section 7.06

  	
  Limitation on Suits

  	
   

  	
  68

  
	
  Section 7.07

  	
  Unconditional Right of Holders to
  Receive Payment

  	
   

  	
  68

  
	
  Section 7.08

  	
  Restoration of Rights and Remedies

  	
   

  	
  68

  
	
  Section 7.09

  	
  Rights and Remedies Cumulative

  	
   

  	
  69

  
	
  Section 7.10

  	
  Delay or Omission Not Waiver

  	
   

  	
  69

  
	
  Section 7.11

  	
  Control by Holders

  	
   

  	
  69

  
	
  Section 7.12

  	
  Waiver of Past Defaults

  	
   

  	
  69

  
	
  Section 7.13

  	
  Undertaking for Costs

  	
   

  	
  69

  
	
  Section 7.14

  	
  Waiver of Stay or Extension Laws

  	
   

  	
  70

  
	
  Section 7.15

  	
  Violations of Certain Covenants

  	
   

  	
  70

  
	
  Section 7.16

  	
  Notice of Default

  	
   

  	
  70

  
	
  Section 7.17

  	
  Default Interest

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8. Consolidation, Merger, Conveyance, Transfer or Lease

  	
   

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Company May Consolidate, etc.,
  Only on Certain Terms

  	
   

  	
  70

  
	
  Section 8.02

  	
  Successor Substituted

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9. The Trustee

  	
   

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Duties and Responsibilities of
  Trustee

  	
   

  	
  71

  
	
  Section 9.02

  	
  Notice of Defaults

  	
   

  	
  72

  
	
  Section 9.03

  	
  Reliance on Documents, Opinions,
  Etc

  	
   

  	
  72

  
	
  Section 9.04

  	
  No Responsibility for Recitals,
  Etc

  	
   

  	
  74

  
	
  Section 9.05

  	
  Trustee, Paying Agents, Conversion
  Agents or Registrar May Own Securities

  	
   

  	
  74

  
	
  Section 9.06

  	
  Monies to be Held in Trust

  	
   

  	
  74

  
	
  Section 9.07

  	
  Compensation and Expenses of
  Trustee

  	
   

  	
  74

  
	
  Section 9.08

  	
  Officers’ Certificate as Evidence

  	
   

  	
  75

  
	
  Section 9.09

  	
  Conflicting Interests of Trustee

  	
   

  	
  75

  
	
  Section 9.10

  	
  Eligibility of Trustee

  	
   

  	
  75

  
	
  Section 9.11

  	
  Resignation or Removal of Trustee.

  	
   

  	
  75

  
	
  Section 9.12

  	
  Acceptance by Successor Trustee

  	
   

  	
  76

  
	
  Section 9.13

  	
  Succession by Merger, Etc

  	
   

  	
  77

  
	
  Section 9.14

  	
  Preferential Collection of Claims

  	
   

  	
  77

  



 



 iii
 









 


	
  Section 9.15

  	
  Trustee’s Application for
  Instructions from the Company

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10. Holders’ Lists and Reports by Trustee

  	
   

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Company to Furnish Trustee Names
  and Addresses of Holders

  	
   

  	
  78

  
	
  Section 10.02

  	
  Preservation of Information;
  Communications to Holders.

  	
   

  	
  78

  
	
  Section 10.03

  	
  Reports By Trustee

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11. Satisfaction And Discharge

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Discharge of Indenture

  	
   

  	
  79

  
	
  Section 11.02

  	
  Deposited Monies to be Held in
  Trust by Trustee

  	
   

  	
  79

  
	
  Section 11.03

  	
  Paying Agent to Repay Monies Held

  	
   

  	
  80

  
	
  Section 11.04

  	
  Return of Unclaimed Monies

  	
   

  	
  80

  
	
  Section 11.05

  	
  Reinstatement

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12. Supplemental Indentures

  	
   

  	
  80

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Supplemental Indentures Without
  Consent of Holders

  	
   

  	
  80

  
	
  Section 12.02

  	
  Supplemental Indentures With
  Consent of Holders

  	
   

  	
  81

  
	
  Section 12.03

  	
  Execution of Supplemental
  Indentures

  	
   

  	
  82

  
	
  Section 12.04

  	
  Effect of Supplemental Indentures

  	
   

  	
  82

  
	
  Section 12.05

  	
  Conformity with Trust Indenture
  Act

  	
   

  	
  82

  
	
  Section 12.06

  	
  Reference in Securities to
  Supplemental Indentures

  	
   

  	
  82

  
	
  Section 12.07

  	
  Notice to Holders of Supplemental
  Indentures

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13. Miscellaneous

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust Indenture Act Controls

  	
   

  	
  83

  
	
  Section 13.02

  	
  Notices

  	
   

  	
  83

  
	
  Section 13.03

  	
  Communication by Holders with
  other Holders

  	
   

  	
  84

  
	
  Section 13.04

  	
  Certificate and Opinion as to
  Conditions Precedent

  	
   

  	
  84

  
	
  Section 13.05

  	
  Statements Required in
  Certificate or Opinion

  	
   

  	
  84

  
	
  Section 13.06

  	
  When Securities Are Disregarded

  	
   

  	
  84

  
	
  Section 13.07

  	
  Rules by Trustee, Paying Agent
  and Registrar

  	
   

  	
  85

  
	
  Section 13.08

  	
  Legal Holidays

  	
   

  	
  85

  
	
  Section 13.09

  	
  Governing Law

  	
   

  	
  85

  
	
  Section 13.10

  	
  No Recourse Against Others

  	
   

  	
  85

  
	
  Section 13.11

  	
  Successors

  	
   

  	
  85

  
	
  Section 13.12

  	
  Multiple Originals

  	
   

  	
  85

  
	
  Section 13.13

  	
  Qualification of Indenture

  	
   

  	
  85

  
	
  Section 13.14

  	
  Table of Contents; Headings

  	
   

  	
  85

  
	
  Section 13.15

  	
  Severability Clause

  	
   

  	
  86

  
	
  Section 13.16

  	
  Calculations

  	
   

  	
  86

  
	
  Section 13.17

  	
  Waiver of Jury Trial

  	
   

  	
  86

  
	
  Section 13.18

  	
  Force Majeure

  	
   

  	
  86

  



 



 iv















INDENTURE, dated as of 
March 9, 2007, between DexCom, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the “Company”),
having its principal office at 5555 Oberlin Drive, San Diego, California 92121
and Wells Fargo Bank, National Association, a national banking association, as
Trustee (the “Trustee”).


RECITALS OF THE COMPANY


WHEREAS, the Company has duly authorized the creation
of an issue of 4.75% Convertible Senior Notes due 2027 (each a “Security” and collectively, the “Securities”)
of the tenor and amount hereinafter set forth, and to provide therefor the
Company has duly authorized the execution and delivery of this Indenture; and


WHEREAS, all things necessary to make the Securities,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid and legally binding obligations of the
Company, and to make this Indenture a valid and legally binding agreement of
the Company, in accordance with the terms of the Securities and the Indenture,
have been done;


NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in
consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed, for the benefit of the Company and the
equal and proportionate benefit of all Holders of the Securities, as follows:


ARTICLE 1.

Definitions and Other Provisions of General Application


Section 1.01           Definitions.  For all
purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:


(i)            the terms defined in this Article 1
have the meanings assigned to them in this Article and include the plural as
well as the singular;


(ii)           all other terms used herein that are
defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;


(iii)          all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP; and


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


“Act,” when used
with respect to any Holder, has the meaning specified in Section 1.04.


“Additional Interest”
shall mean Additional Interest as defined in the Registration Rights Agreement.


“Additional Shares”
has the meaning specified in Section 6.08(a).













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


“Agent Members”
has the meaning specified in Section 3.09.


“Auto-Conversion Price” has the
meaning specified in Section 6.02(a).


“Automatic Conversion” has the
meaning specified in Section 6.02(a).


“Automatic Conversion Date” has
the meaning specified in Section 6.02(a).


“Automatic Conversion Notice” has
the meaning specified in Section 6.02(a).


“Bid Solicitation Agent”
means an independent nationally recognized securities dealer selected by the
Company to solicit market bid quotations for the Securities, which shall in no
event be an Affiliate of the Company.


“Board of Directors”
means, with respect to any Person, either the board of directors of such Person
or any duly authorized committee of that board.


“Board Resolution”
means, with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary of such Person 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.


‘‘Borrowing Base’’
has the meaning specified in Section 4.15.


“Business Day”
means any day other than a Saturday, a Sunday or a day on which the Federal
Reserve Bank in The City of New York is authorized or obligated by law,
executive order or governmental decree to be closed.


“Capital Stock”
means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock and, with respect to
partnerships, partnership interests (whether general or limited) and any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, such partnership.


“Code” means the
Internal Revenue Code of 1986, as amended.


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



 2
 









“Common Stock”
means the shares of common stock, par value $0.001 per share, of the Company as
they exist on the date of this Indenture or any other shares of Capital Stock
of the Company into which the Common Stock shall be reclassified or changed or,
in the event of a merger, consolidation or other similar transaction involving
the Company that is otherwise permitted hereunder in which the Company is not
the surviving corporation, the common stock, common equity interests, ordinary
shares or depositary shares or other certificates representing common equity
interests of such surviving corporation or its direct or indirect parent
corporation.


“Company” means
the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such
successor Person.


“Company Request”
or “Company Order” means a written request
or order signed in the name of the Company by its Chief Executive Officer, its
President or its Chief Financial Officer, and by its Treasurer or its
Secretary, and delivered to the Trustee.


“Conversion Agent”
means the Trustee or such other office or agency designated by the Company
where Securities may be presented for conversion.


“Conversion Date”
has the meaning specified in Section 6.03(b).


“Conversion Notice”
shall have the meaning specified in Section 6.03(b).


“Conversion Price”
means as of any date $1,000 divided by the Conversion Rate as of such date.


“Conversion Rate”
has the meaning specified in Section 2.03.


“Corporate Trust Office”
means the office of the Trustee at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated, located at 707
Wilshire Blvd., 17th Floor, Los Angeles, CA 90017, Attention:  Corporate Trust Services (DexCom, Inc.,  4.75% Convertible Senior Notes due 2027).


“Corporation”
means a corporation, association, company, joint-stock company or business
trust.


“Custodian”
means Wells Fargo Bank, National Association, as custodian with respect to the
Securities in global form, or any successor entity.


“Daily VWAP”
means, for each of the 20 consecutive Trading Days during the Observation
Period, the per share volume-weighted average price as displayed under the
heading “Bloomberg VWAP” on Bloomberg page “DXCM.UQ <equity> AQR” (or its
equivalent successor if such page is not available) 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 volume-weighted average price is unavailable, the market value of one
share of Common Stock on such Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment banking firm
retained for such purpose by the Company).



 3
 









“Default” means
any event that is or with the passage of time or the giving of notice or both
would become an Event of Default.


“Depositary”
means The Depository Trust Company until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean such successor Depositary.


“Effective Date”
has the meaning specified in Section 6.08(b).


“Event of Default”
has the meaning specified in Section 7.01(f).


“Ex Date” means,
with respect to any issuance, dividend or distribution on the Common Stock or
any other equity security, the first date on which shares of the Common Stock
or such other equity security trade on the applicable exchange or in the
applicable market, regular way, without the right to receive the issuance,
dividend or distribution in question.


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.


“Exchange Rate Contract”
means, with respect to any Person, any currency swap agreement, forward exchange
rate agreement, foreign currency future or option, exchange rate collar
agreement, exchange rate insurance or other agreement or arrangement, or
combination thereof, the principal purpose of which is to provide protection
against fluctuations in currency exchange rates.  An Exchange Rate Contract may also include an
Interest Rate Agreement.


“Fair Market Value”
means the amount that a willing buyer would pay a willing seller in an arm’s
length transaction.


“Fundamental Change”
means the occurrence of any of the following events at any time after the
Securities are originally issued:


(1)           a “person”
or “group” within the meaning of Section 13(d) of the Exchange Act other than
the Company, its Subsidiaries or its or their employee benefit plans becomes
the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the
Exchange Act, of the Company’s common equity representing more than 50% of the
voting power of the Company’s common equity;


(2)           consummation
of any share exchange, consolidation or merger of the Company pursuant to which
the Company’s common stock will be converted into cash, securities or other
property or any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to any person other than one of
the Company’s wholly-owned Subsidiaries; provided,
however, that a transaction where the holders of more than 50% of all classes
of the Company’s common equity immediately prior to such transaction own,
directly or indirectly, more than 50% of all classes of common equity of the
continuing or surviving corporation or transferee immediately after such event
shall not be a Fundamental Change;


(3)           the
Company’s stockholders approve any plan or proposal for the liquidation or
dissolution of the Company; or



 4
 









(4)           the
Common Stock, or other common stock or American Depository Receipts into which
the Securities are then convertible, ceases to be listed for trading on a United
States national securities exchange or quoted on an established
over-the-counter trading market in the U.S.


Notwithstanding the foregoing, a Fundamental Change as
a result of clause (2) above will not be deemed to have occurred if (i) 90% or
more of the consideration received or to be received by the holders of Common
Stock, excluding cash payments for fractional shares and cash payments in
respect of dissenters’ or appraisal rights, in the transaction or transactions
otherwise constituting the Fundamental Change consists of Publicly Traded
Securities and, as a result of such transaction or transactions, the Securities
become convertible into such Publicly Traded Securities, excluding cash
payments for fractional shares and cash payments in respect of dissenters’ or
appraisal rights.


“Fundamental Change Company
Notice” has the meaning specified in Section 5.07(b).


“Fundamental Change
Repurchase Date” has the meaning specified in Section 5.07(a).


“Fundamental Change
Repurchase Notice” has the meaning specified in Section 5.07(a).


“Fundamental Change
Repurchase Price” has the meaning specified in Section 5.07(a).


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, in each
case, as in effect in the United States on the date hereof.


“Global Security”
means a Security in global form registered in the Security Register in the name
of a Depositary or a nominee thereof.


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


“Indebtedness”
means (except with respect to Section 4.15 of this Indenture), with respect to
any Person, without duplication, (i) any indebtedness or obligation, whether
contingent or not, (1) evidenced by a credit or loan agreement, note, bond,
debenture or similar written obligation or instrument (whether or not the
recourse of the lender is to the whole of the assets of such Person or to only
a portion thereof) or (2) for money borrowed, (ii) all obligations (1) as
lessee under leases required to be capitalized on such Person’s balance sheet
under GAAP or (2) as lessee under other leases for facilities, capital
equipment or related assets, whether or not capitalized, entered into or leased
for financing purposes, (iii) all net obligations under Interest Rate
Agreements, Exchange Rate Contracts or similar agreements or arrangements, (iv)
all obligations and liabilities (contingent or otherwise) of such Person with
respect to letters of credit, bankers’ acceptances and similar facilities
(including reimbursement obligations with respect to the foregoing), (v) all
obligations and liabilities (contingent or otherwise) of such



 5
 









Person issued or assumed as the deferred purchase
price of any property or services (but excluding trade accounts payable and
accrued liabilities arising in the ordinary course of business), (vi)
obligations of the type described in clauses (i) through (v) above of any third
party and all dividends of any third party payment of which, in either case,
such Person has assumed or guaranteed, or for which the Person first referenced
above is responsible or liable, directly or indirectly, jointly or severally,
as obligor, guarantor or otherwise, or that are secured by a lien on such
Person’s property and (vii) any and all renewals, extensions, modifications,
replacements, restatements and refundings of, or any indebtedness or obligation
issued in exchange for, any indebtedness, obligation or liability of the kinds
described in clauses (i) through (vi). 
The amount of any Indebtedness outstanding as of any date shall be the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount.  The amount of any
Indebtedness outstanding as of any date with respect to any Exchange Rate
Contract or Interest Rate Agreement shall be the termination value
thereof.  Indebtedness shall not include
liabilities for taxes of any kind.  For
the purposes of Section 4.15 of this Indenture, “Indebtedness”
has the meaning specified therein.


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.


“Initial Purchaser”
means Piper Jaffray & Co.


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


“Interest Rate Agreement”
means, with respect to any Person, any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement
the principal purpose of which is to protect the party indicated therein
against fluctuations in interest rates.


“Issue Date”
means the date the Securities are originally issued as set forth on the face of
the Security under this Indenture.


“Last Reported Sale Price”
means, on any date, the closing sale price per share of the Common Stock (or,
if no closing 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 as reported in composite transactions for the
principal U.S. national or regional securities exchange on which the Common
Stock is listed for trading.  The “Last
Reported Sale Price” shall be determined without reference to after-hours or
extended market trading.  If the Common
Stock is not listed for trading on a U.S. national or regional securities
exchange, “Last Reported Sale Price” shall mean the last quoted bid price for
the Common Stock in the over-the-counter market on such date as reported by the
National Quotation Bureau Incorporated or any successor organization
thereto.  If the Common Stock is not so
quoted, “Last Reported Sale Price” shall mean the average of the mid-point of
the last bid and ask prices for the Common Stock on such date from each of at
least three nationally recognized independent investment banking firms selected
by the Company for such purpose.



 6
 









“Legal Holiday”
has the meaning specified in Section 13.08.


“Majority Owner”
means, with respect to an entity, another entity that has “beneficial ownership”
(as defined in Rule 13(d)(3) under the Exchange Act) of more than 50% of the
total voting power of all shares of the first entity’s Capital Stock that are
entitled to vote generally in the election of directors.


“Make-Whole Interest Payment”
has the meaning specified in Section 6.02(a).


“Market Disruption Event”
means, if the Common Stock is listed on a U.S. national or regional securities
exchange, the occurrence or existence during the one half hour period ending on
the scheduled close of trading on any Trading Day for the Common Stock of any
material suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by such exchange or otherwise) in the Common
Stock or in any options, contracts or future contracts relating to the Common
Stock.


“Maturity,” when
used with respect to any Security, means the date on which the principal or
Fundamental Change Repurchase Price of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or Fundamental
Change Repurchase Date, by declaration of acceleration or otherwise.


“Notice of Default”
has the meaning specified in Section 7.01.


“Observation Period”
with respect to any Security means the 20 consecutive Trading Day period
beginning on and including the second Trading Day after the related Conversion
Date, except that with respect to any conversion occurring during the period
beginning on December 15, 2011, and ending at 5:00 p.m., New York City time, on
the second Scheduled Trading Day prior to the Stated Maturity of the
Securities, Observation Period means the first 20 Trading Days beginning on and
including the 22nd Scheduled Trading Day prior to the Stated Maturity of the
Securities.


“Officers’ Certificate”
means a certificate signed by the Chief Executive Officer, the President or the
Chief Financial Officer, and by the Treasurer or the Secretary, of the Company,
and delivered to the Trustee.  One of the
officers signing an Officers’ Certificate given pursuant to Section 4.14 shall
be the principal executive, financial or accounting officer of the Company.


“Opinion of Counsel”
means a written opinion of counsel, who may be external or in-house counsel for
the Company.


“Outstanding,”
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:


(i)            Securities theretofore cancelled by
the Trustee or accepted by the Trustee for cancellation;


(ii)           Securities, or portions thereof, for
whose payment or repurchase money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the 



 7
 









Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that if such Securities are to be repurchased prior to the
maturity thereof, notice of such repurchase shall have been given to the
Holders as herein provided, or provision satisfactory to a Responsible Officer
of the Trustee shall have been made for giving such notice;


(iii)          Securities that have been paid or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture; and


(iv)          Securities converted into Common Stock
pursuant to Article 6;


provided, however, that, in
determining whether the Holders of the requisite Principal Amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. 
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.


“Paying Agent”
means any Person (including the Company) authorized by the Company to pay the
Principal Amount of, interest on, including Additional Interest and  Special Interest, or the Fundamental Change
Repurchase Price of, any Securities on behalf of the Company.  Wells Fargo Bank. National Association shall
initially be the Paying Agent.


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


“Physical Securities”
means permanent certificated Securities in registered form issued in
denominations of $1,000 Principal Amount and integral multiples thereof.


“Principal Amount”
of a Security means the Principal Amount as set forth on the face of the
Security.


“Publicly Traded Securities”
means shares of Capital Stock or American Depository Receipts that are traded
on a U.S. national securities exchange or quoted on an established automated
over-the-counter trading market in the U.S. or, with respect to a transaction
described in any of clauses (1) through (4) of the definition of “Fundamental
Change”, which will be so traded or quoted when issued or exchanged in
connection with such event.


“Purchase Agreement”
means the Purchase Agreement, dated 
February 28, 2007, entered into by the Company and the Initial Purchaser
in connection with the sale of the Securities, as amended by the Amendment to
the Purchase Agreement, dated March 5, 2007 between the Company and the Initial
Purchaser.



 8
 









“Qualified Institutional
Buyer” or “QIB” shall have
the meaning specified in Rule 144A.


“Record Date”
means, with respect to the payment of interest on the Securities, including
Additional Interest and  Special
Interest, if any, the March 1 (whether or not a Business Day) next preceding an
Interest Payment Date on March 15 and September 1 (whether or not a Business
Day) next preceding an Interest Payment Date on September 15.


“Redemption Date” has the
meaning specified in Section 5.05.


“Reference Property”
has the meaning specified in Section 6.06.


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of
March 9, 2007, between the Company and the Initial Purchaser, for the benefit
of itself and the Holders, as the same may be amended or modified from time to
time in accordance with the terms thereof.


“Repurchase Date” has the
meaning specified in Section 5.11(a).


“Repurchase Election Notice” has
the meaning specified in Section 5.11(b).


“Repurchase Notice” has the
meaning specified in Section 5.11(b).


“Repurchase Price” has the
meaning specified in Section 5.11(a).


“Resale Registration
Statement” means a registration statement under the Securities Act
registering the Securities for resale pursuant to the terms of the Registration
Rights Agreement.


“Responsible Officer”
means any officer of the Trustee within the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture and
also, with respect to a particular matter, any other officer of the Trustee to
whom such matter is referred because of such officer’s knowledge and
familiarity with the particular subject.


“Restricted Global Security”
means a Global Security representing Restricted Securities.


“Restricted Security”
or “Restricted Securities” has the meaning
specified in Section 2.05.


“Rule 144” means
Rule 144 under the Securities Act (including any successor rule thereto), as
the same may be amended from time to time.


“Rule 144A”
means Rule 144A under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.


“Rule 144A Information”
has the meaning specified in Section 2.03.



 9
 









“Scheduled Trading Day”
means a day that is scheduled to be a trading day on the principal U.S.
national or regional securities exchange or market on which the Common Stock is
listed or admitted for trading.


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


“Security” or “Securities” has the meaning specified in the first paragraph
of the Recitals of the Company.


“Security Register”
and “Security Registrar” have the respective
meanings specified in Section 3.06.


“Significant Subsidiary”
shall have the meaning given to such term in Rule 1-02(w) of Regulation S-X
under the Securities Act.


“Special Interest”
has the meaning specified in Section 7.02.


“Spin-Off” has
the meaning specified in Section 6.05(c).


“Stated Maturity,”
when used with respect to any Security, means the date specified in such
Security as the fixed date on which an amount equal to the Principal Amount of
such Security together with accrued and unpaid interest, if any, is due and payable.


“Stock Price”
has the meaning specified in Section 6.08(b).


“Stock Transfer Agent”
means American Stock Transfer & Trust Company Investor Services, L.L.C., or
such other Person as may be designated by the Company as the transfer agent for
the Common Stock.


“Stockholder Rights
Agreement” means the Rights Agreement, dated as of March 11, 2005,
between the Company and American Stock Transfer & Trust Company


 “Subsidiary” means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.  For the purposes of
this definition, “voting stock” means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.


“Successor Company”
has the meaning specified in Section 8.01.


“Trading Day”
means a day during which (i) trading in the Company’s Common Stock generally
occurs on the principal U.S. national or regional securities exchange or market
on which the Company’s Common Stock is listed or admitted to trading and (ii)
there is no Market Disruption Event.


“Transfer Restricted
Security” means a Security required to bear the restricted legend
set forth in the form of Security in Section 2.02.



 10
 









“Trigger Event”
has the meaning specified in Section 6.05(b).


“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in effect on the date as of which this
Indenture was executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.


“Trustee” means
the Person named as the “Trustee” in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.


“U.S.” means the
United States of America.


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


Section 1.02           Compliance Certificates and Opinions.  Upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act.  Each such certificate or opinion shall be
given in the form of an Officers’ Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:


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


(b)           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;


(c)           a
statement that, in the opinion of each such individual, such individual has
made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such covenant or
condition has been complied with; and


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


Section 1.03           Form of Documents Delivered to Trustee.  In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.



 11















Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. 
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


Section 1.04           Acts of Holders; Record Dates.


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


(b)           The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.  The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee reasonably deems
sufficient.


(c)           The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote
on any action, authorized or permitted to be given or taken by Holders.  If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 10.01) prior to
such first solicitation or vote, as the case may be.  With regard to any record date, only the
Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.



 12
 









(d)           The ownership of Securities shall be proved by the
Security Register.


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


Section 1.05           Notices, Etc., to Trustee and Company.  Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished to, or filed
with:


(i)            the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its applicable Corporate Trust Office; or


(ii)           the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: 
General Counsel, which notice shall be deemed given when actually
received by the Company. .


Section 1.06           Notice to Holders; Waiver.  Where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at such Holder’s address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice.  In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.  Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice.  Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.


Whenever under this Indenture the Trustee is required
to provide any notice by mail, in all cases the Trustee may alternatively
provide notice by overnight courier or by telefacsimile, with confirmation of
transmission.


Section 1.07           Conflict with Trust Indenture Act.  If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required
hereunder to be a part of and govern this Indenture, the latter provision shall
control.  If any provision of this
Indenture 



 13
 









modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.


Section 1.08           Effect of Headings and Table of Contents.  The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof, and all Article and Section references are to Articles and
Sections, respectively, of this Indenture unless otherwise expressly stated.


Section 1.09           Successors and Assigns. 
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.


Section 1.10           Severability Clause. 
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.


Section 1.11           Benefits of Indenture. 
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their respective
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.


Section 1.12           Governing Law.  This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York.


Section 1.13           No Recourse Against Others. 
No director, officer, employee, stockholder or Affiliate of the Company
from time to time shall have any liability for any obligations of the Company
under the Securities or this Indenture. 
Each Holder by accepting a Security waives and releases such liability.


ARTICLE 2.

Security Forms


Section 2.01           Forms Generally.  The
Securities and the Trustee’s certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor, the Code and regulations thereunder, or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof.


The Securities shall initially be issued in the form
of permanent Global Securities in registered form in substantially the form set
forth in this Article.  The aggregate
Principal Amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided.



 14
 









Section 2.02           Form of Face of Security. 
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY
— THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY,
THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE.  BY ITS ACQUISITION HEREOF, THE
HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) TWO YEARS AFTER THE
LATEST ISSUE DATE OF THIS SECURITY AND (Y) THREE MONTHS AFTER IT CEASES TO BE
AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE
ISSUER, OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT
(A) TO THE ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO
ANY TRANSFER OF THIS SECURITY WITHIN THE LATER OF (X) TWO YEARS AFTER THE
LATEST ISSUE DATE OF THIS SECURITY AND (Y) THREE MONTHS AFTER IT CEASES TO BE
AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT)
OF THE ISSUER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE INDENTURE 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.]


[INCLUDE IF SECURITY IS A
GLOBAL SECURITY — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. 
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION,
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 



 15
 









USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]



 16
 









4.75%
Convertible Senior Notes due 2027


	
  No. 1

  	
  CUSIP NO. 252131AC1

  	
  U.S. $60,000,000

  



 


DexCom, Inc., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the “Company”), which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received
hereby promises to pay to Cede & Co., or registered assigns, the principal
sum of Sixty Million United States Dollars ($60,000,000) (which amount may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depositary, in accordance with the rules and
procedures of the Depositary) on March 15, 2027.  Payment of the principal of this Security
shall be made by check mailed to the address of the Holder of this Security
specified in the register of Securities, or, at the option of the Company, by wire
transfer in immediately available funds, in such lawful money of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.


The issue date of this Security is March 9, 2007.


Reference is made to the further provisions of this
Security set forth on the reverse hereof, including, without limitation,
provisions giving the Holder the right to convert this Security into Common
Stock of the Company and to require the Company to repurchase this Security
upon certain events, in each case, on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the
Indenture.  Such further provisions shall
for all purposes have the same effect as though fully set forth at this
place.  Capitalized terms used but not
defined herein shall have such meanings as are ascribed to such terms in the
Indenture.


This Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.


This Security shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
manually signed by the Trustee or a duly authorized authenticating agent under
the Indenture.


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


	
  

  	
  DEXCOM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven J. Kemper

  
	
   

  	
   

  	
  Authorized Signatory

  



 


This is one of the Securities referred to in the within-mentioned Indenture.


	
  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:  March 9, 2007

  	
  Wells Fargo Bank, National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maddy Hall

  
	
   

  	
   

  	
  Authorized Signatory

  



 



 17
 









Section 2.03           Form of Reverse of Security.


DEXCOM, INC.

4.75%
Convertible Senior Notes Due 2027


This Security is one of a duly authorized issue of
Securities of the Company, designated as its 4.75% Convertible Senior Notes due
2027 (the “Securities”), all issued or to be issued under and pursuant to an
Indenture dated as of  March 9, 2007 (the
“Indenture”), between the Company and Wells Fargo Bank, National Association
(the “Trustee”), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities.


Interest.  The Securities will bear interest at a rate
of 4.75% per year.  Interest on the
Securities will accrue from  March 9,
2007.  Interest will be payable
semiannually in arrears on March 15 and September 15, beginning September 15,
2007, and at maturity.


Interest will be paid to the person in whose name a
Security is registered at the close of business on March 1 or September 1, as
the case may be, immediately preceding the relevant Interest Payment Date.  Interest on the Securities will be computed
on the basis of a 360-day year composed of twelve 30-day months.


Ranking.  The Securities rank equally in right of
payment with all the Company’s existing and future unsecured senior debt and
are senior in right of payment to all of the Company’s future subordinated
debt, if any.


Redemption at the Option of the Company.  Subject to the terms and conditions of the
Indenture, on or after March 20, 2010, the Company may redeem for cash all or
part of the Securities at any time for a price equal to 100% of the Principal
Amount of the Securities to be redeemed plus any accrued and unpaid interest,
including Additional Interest and Special Interest, if any, to, but excluding,
the redemption date.


Repurchase at the Option of the Holder.  Subject to the terms and conditions of the
Indenture, Holders have the right to require the Company to repurchase the
Securities for cash on March 15, 2012, March 15, 2017 and March 15, 2022. The
Repurchase Price will 100% of the Principal Amount plus accrued and unpaid
interest, including Additional Interest and Special Interest, if any, to, but
excluding, the Repurchase Date.


Repurchase by the Company at the Option of the Holder
Upon a Fundamental Change. 
Subject to the terms and conditions of the Indenture, the Company shall
become obligated, at the option of the Holder, to repurchase the Securities if
a Fundamental Change occurs at any time prior to the Stated Maturity at 100% of
the Principal Amount plus accrued and unpaid interest, including Additional
Interest and  Special Interest, if any,
to, but excluding, the Fundamental Change Repurchase Date, which amount will be
paid in cash.


Withdrawal of Fundamental Change Repurchase Notice.  Holders have the right to withdraw, in whole
or in part, any Fundamental Change Repurchase Notice, as the case may be, 



 18
 









by delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the Indenture.


Payment of Fundamental Change Repurchase Price.  If cash sufficient to pay the Fundamental
Change Repurchase Price of all Securities or portions thereof to be repurchased
on a Fundamental Change Repurchase Date is deposited with the Paying Agent on
the Fundamental Change Repurchase Date, such Securities will cease to be
outstanding and interest will cease to accrue on such Securities (or portions
thereof) immediately after such Fundamental Change Repurchase Date, and the
Holder thereof shall have no other rights as such (other than the right to
receive the Fundamental Change Repurchase Price upon surrender of such
Security).


Conversion at the Option of the Holder.  Subject to and in compliance with the
provisions of the Indenture, the Holder hereof has the right, at its option, to
convert the Principal Amount hereof or any portion of such principal which is
$1,000 or an integral multiple thereof, into shares of Common Stock at the
Conversion Rate.  The initial Conversion
Rate is 128.2051 shares of Common Stock per $1,000 Principal Amount of
Securities (equivalent to a conversion price of $7.80), subject to adjustment
in certain events described in the Indenture. 
No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Securities for conversion. 
Securities in respect of which a Holder is exercising its right to
require repurchase on a Fundamental Change Repurchase Date may be converted
only if such Holder withdraws its election to exercise such right in accordance
with the terms of the Indenture.


Automatic Conversion by the Company.  Subject to and in compliance with the
provisions of the Indenture  (including
without limitation the conditions of conversion of this Security set forth in
Article 6 of the Indenture), the Company may elect for Automatic Conversion
some or all the Securities if the closing price of the Common Stock has
exceeded 150% of the Conversion Price for at least 20 Trading Days during any
consecutive 30-Trading Day period ending within five Trading Days prior to the
date of the Automatic Conversion Notice; provided however, that, during the two
year period commencing on the date of the last delivery of the Securities under
the Indenture, the Company may only automatically convert the Securities if, in
accordance with the terms of the Registration Rights Agreement, a registration
statement registering the resale of the Securities and Common Stock issuable
upon conversion of the Securities is declared effective under the Securities
Act prior to the date of the Automatic Conversion Notice and such registration
statement remains effective on the date selected for Automatic Conversion. If
an Automatic Conversion occurs on or prior to March 15, 2010, the Company will
also pay to the Holder the Make-Whole Interest Payment in cash or, at the
Company’s option, in Common Stock..


In the event of a deposit or withdrawal of an interest
in this Security, including an exchange, transfer, repurchase or conversion of
this Security in part only, the Trustee, as custodian of the Depositary, shall
make an adjustment on its records to reflect such deposit or withdrawal in
accordance with the rules and procedures of the Depositary.


Subject to certain limitations in the Indenture, at
any time when the Company is not subject to Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, as amended, upon the request of a
Holder of a Restricted Security, the Company will promptly furnish or 



 19
 









cause to be furnished Rule 144A Information (as
defined below) to such Holder of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder, to the extent
required to permit compliance by any such Holder with Rule 144A under the
Securities Act.  “Rule 144A
Information” shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).


If an Event of Default shall occur and be continuing,
the Principal Amount and accrued and unpaid interest, including Additional
Interest and Special Interest, if any, through such date on all the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.


Amendment, Supplement and Waiver.  The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in aggregate Principal
Amount of the Outstanding Securities. 
The Indenture also contains provisions permitting the Holders of a
majority in aggregate Principal Amount of the Outstanding Securities, on behalf
of the Holders of all the Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences.  Any
such consent or waiver by the Holder of any provision of or applicable to this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.


As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities, the Holders of not less than 25% in
aggregate Principal Amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity
satisfactory to it, the Trustee shall not have received from the Holders of a
majority in Principal Amount of Outstanding Securities a direction inconsistent
with such request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity.  The foregoing shall not apply
to any suit instituted by a Holder of this Security for the enforcement of any
payment of the Principal Amount, Fundamental Change Repurchase Price or
Make-Whole Interest Payment hereof on or after the respective due dates
expressed herein.


No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the Principal Amount,
Fundamental Change Repurchase Price or Make-Whole Interest Payment of, and
interest, including Additional Interest and 
Special Interest, if any, on, this Security at the times, place and
rate, and in the coin or currency, herein prescribed.


Transfer, Exchange, Denominations.  As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, 



 20
 









upon surrender of this Security for registration of
transfer at the office or agency of the Company, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate Principal Amount, will
be issued to the designated transferee or transferees.


The Securities are issuable only in registered form in
denominations of $1,000 and any integral multiple of $1,000 above that amount,
as provided in the Indenture and subject to certain limitations therein set
forth.  Securities are exchangeable for a
like aggregate Principal Amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.


No service charge shall be made for any such
registration of transfer or exchange, but the Company and the Security
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.


Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and the Security Registrar
and any agent of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


This Security shall be governed by and construed
in accordance with the laws of the State of New York.


All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.


ASSIGNMENT FORM


If you want to assign this Security, fill in the form
below and have your signature guaranteed:


I or we assign and transfer this Security to:


(Print or type name, address and zip code and social
security or tax ID number of assignee)


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


 


	
  Date:

  	
   

  	
  Signed:

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
  Signature

  	
   

  	
   

  



 



 21
 









 


	
  Guarantee:

  	
   

  	
   

  



 


Note: 
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration statement
under the Securities Act, as amended (the “Securities Act”),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the second anniversary
of the Issue Date set forth on the face of this Security, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that this Security is being
transferred:


[Check One]


(1)                                  o            to the Company or a subsidiary
thereof; or


(2)                                  o            to a “Qualified Institutional Buyer”
pursuant to and in compliance with Rule 144A under the Securities Act; or


(3)                                  o            pursuant to the exemption from
registration provided by Rule 144 under the Securities Act.


Unless one of the above boxes is checked, the Trustee
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 that if box (3) is checked, the Company may require
(and shall deliver to the Trustee and the Security Registrar), prior to
registering any such transfer of the Securities, in its sole discretion, such
legal opinions, certifications and other information as the Company may
reasonably request 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.


If none of the foregoing boxes is checked, the Trustee
or Security 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 Section 3.10 of
the Indenture shall have been satisfied.


	
  Date:

  	
   

  	
  Signed:

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
  Signature
  Guarantee:

  	
   

  	
   

  



 


Note: 
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Security Registrar, which requirements include
membership or participation 



 22
 









in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


TO BE COMPLETED BY
PURCHASER IF (2) 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 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 or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.




	
  Date:

  	
  Signed:

  
	
   

  	
   

  
	
  NOTICE: To be
  executed by an executive officer.

  






 



 23















CONVERSION NOTICE


If you want to convert this Security into Common Stock
of the Company (or, if applicable, cash and Common Stock of the Company, if
any), check the box: o


To convert only part of this Security, state the
Principal Amount to be converted (which must be $1,000 or an integral multiple
of $1,000):


	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (Insert other
  person’s social security or tax ID no.)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
                Date:

  	
   

  	
  Signed:

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
				



 


Note: 
Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may
be determined by the Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.


EXHIBIT A-1


Form of Fundamental
Change Repurchase Notice


	
  

  	
   

  	
  ,

  	
   

  



 


Wells Fargo Bank,
National Association


[Address]


Fax:


	
  

  	
  Re:

  	
  DexCom, Inc.(the  “Company”)

  
	
   

  	
  4.75% Convertible Senior Notes due 2027

  	
   

  



 



 24
 









This is a Fundamental Change Repurchase Notice as
defined in Section 5.07(a) of the Indenture dated as of March 9, 2007 (the “Indenture”) between the Company and Wells Fargo Bank,
National Association, as Trustee.  Terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture.


	
  Certificate No(s). of Securities:

  	
   

  	
   

  
	
  (if certificated)

  	
   

  



 


I intend to deliver the following aggregate Principal
Amount of Securities for purchase by the Company pursuant to Section 5.07 of
the Indenture (in multiples of $1,000):


	
  $

  	
   

  	
   

  



 


I hereby agree that the Securities will be purchased
as of the Fundamental Change Repurchase Date pursuant to the terms and
conditions thereof and of the Indenture.


Signed:


EXHIBIT
A-2


Form of Repurchase
Election Notice


	
  

  	
   

  	
  ,

  	
   

  



 


Wells Fargo Bank, National
Association


[Address]


Fax:


	
  

  	
  Re:

  	
  DexCom, Inc.(the “Company”)

  
	
   

  	
  4.75% Convertible Senior Notes due 2027

  	
   

  



 


This is a Repurchase Election Notice as defined in
Section 5.11(b) of the Indenture dated as of March 9, 2007 (the “Indenture”) between the Company and Wells Fargo Bank,
National Association, as Trustee.  Terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture.


	
  Certificate No(s). of Securities:

  	
   

  	
   

  
	
  (if certificated)

  	
   

  



 


I intend to deliver the following aggregate Principal
Amount of Securities for purchase by the Company pursuant to Section 5.11 of
the Indenture (in multiples of $1,000):


	
  $

  	
   

  	
   

  



 


I hereby agree that the Securities will be purchased
as of the Repurchase Date pursuant to the terms and conditions thereof and of
the Indenture.


Signed:



 25
 









Section 2.04           Form of Trustee’s Certificate of Authentication.  This is one of the Securities referred to in
the within-mentioned Indenture.


	
  Dated:

  	
   

  	
   

  	
  Wells Fargo Bank, National Association, as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Authorized
  Signatory

  



 



 26
 









Section 2.05           Legend on Restricted Securities.  During the period beginning on the Issue Date
and ending on the date two years from such date, any Security, including any
Security issued in exchange therefor or in lieu thereof, shall be deemed a “Restricted Security” and shall be subject to the
restrictions on transfer provided in the legends set forth on the face of the
form of Security in Section 2.02; provided, however, that the term “Restricted Security”
shall not include any Securities as to which restrictions have been terminated
in accordance with Section 3.06.  All
Securities shall bear the applicable legends set forth on the face of the form
of Security in Section 2.02.  Except as
provided in Section 3.06 and Section 3.10, the Trustee shall not issue any
unlegended Security until it has received an Officers’ Certificate from the
Company directing it to do so.


ARTICLE 3.

The Securities


Section 3.01           Title and Terms; Payments. 
The aggregate Principal Amount of Securities that may be authenticated
and delivered under this Indenture $60,000,000, except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Sections 2.05, 3.05, 3.06,
3.07, 5.12 or 12.02.


The Securities shall be known and designated as the “4.75%
Convertible Senior Notes due 2027” of the Company.  The Principal Amount shall be payable at the
Stated Maturity.


The Principal Amount of and interest on Global
Securities registered in the name of Depositary or its nominee shall be paid by
wire transfer in immediately available funds to Depositary or its nominee, as
applicable.


The Principal Amount of Physical Securities shall be
payable at the Corporate Trust Office and at any other office or agency
maintained by the Company for such purpose. 
Interest on Physical Securities will be payable (i) to Holders having an
aggregate Principal Amount of $5,000,000 or less of Securities, by check mailed
to such Holders at the address set forth in the Security Register and (ii) to
Holders having an aggregate Principal Amount of more than $5,000,000 of
Securities, either by check mailed to such Holders or, upon application by a
Holder to the Security Registrar not later than two days prior to the relevant
Record Date for such interest payment, by wire transfer in immediately
available funds to such Holder’s account within the United States, which application
shall remain in effect until the Holder notifies the Security Registrar to the
contrary in writing.


Section 3.02           Ranking.  The
Securities constitute a senior unsecured general obligation of the Company,
ranking equally in right of payment all of the existing and future senior
unsecured and unsubordinated Indebtedness of the Company and ranking senior in
right of payment any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness.


Section 3.03           Denominations.  The
Securities shall be issuable only in registered form without coupons and in
denominations of $1,000 and any integral multiple of $1,000 above that amount.



 27
 









Section 3.04           Execution, Authentication, Delivery and Dating.  The Securities shall be executed on behalf of
the Company by its Chief Executive Officer, its President, its Chief Financial
Officer or its Treasurer.


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


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities.  The Company Order shall specify the amount of
Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical Securities.  The Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.


Each Security shall be dated the date of its
authentication.


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


Section 3.05           Temporary Securities. 
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities; provided, that
any such temporary Securities shall bear legends on the face of such Securities
as set forth in Section 2.02.


If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay.  After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive Securities
upon surrender of the temporary Securities at any office or agency of the
Company designated pursuant to Section 4.02, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
Physical Securities of authorized denominations.  Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
Physical Securities.



 28
 









Section 3.06           Registration;
Registration of Transfer and Exchange; Restrictions on Transfer.


(a)           The
Company shall cause to be kept at the applicable Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 4.02 being herein sometimes
collectively referred to as the “Security
Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities.  The Trustee
is hereby appointed “Security Registrar” (the “Security Registrar”) for the purpose of registering Securities
and transfers of Securities as herein provided.


Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated pursuant to Section
4.02 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denominations and of a like
aggregate Principal Amount and tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including Sections
2.02, 2.05 and 3.10).


At the option of the Holder and subject to the other
provisions of this Section 3.06 and to Section 3.10, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate Principal Amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.


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


Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.  As a condition to the
registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.


Except as provided in the following sentence and in
Section 3.10, all Securities originally issued hereunder and all Securities
issued upon registration of transfer or exchange or replacement thereof shall
be Restricted Securities and shall bear the legends required by Sections 2.02
and 2.05, unless the Company shall have delivered to the Trustee (and the
Security Registrar, if other than the Trustee) a Company Order stating that the
Security is not a Restricted Security and may be issued without such legend
thereon.  Securities that are issued upon
registration of transfer of, or in exchange for, Securities that are not
Restricted Securities shall not be Restricted Securities and shall not bear
such legend.


No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company and the Security
Registrar may require payment of a sum sufficient to cover 



 29
 









any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.05 not involving any
transfer.


Neither the Company nor the Security Registrar shall
be required to exchange or register a transfer of any Security (i) that has
been surrendered for conversion, (ii) during a period of 15 days next preceding
the selection of any Securities to be redeemed or (iii) as to which a
Fundamental Change Repurchase Notice or Repurchase Notice has been delivered
and not withdrawn, except that where such Fundamental Change Repurchase Notice
or Repurchase Notice provides that such Security is to be purchased only in
part, the Company and the Security Registrar shall be required to exchange or
register a transfer of the portion thereof not to be purchased.


(b)           Beneficial
ownership of every Restricted Security shall be subject to the restrictions on
transfer provided in the legends required to be set forth on the face of each
Restricted Security pursuant to Sections 2.02 and 2.05, unless such
restrictions on transfer shall be terminated in accordance with this Section
3.06(b) or Section 3.10.  The Holder of
each Restricted Security, by such Holder’s acceptance thereof, agrees to be
bound by such restrictions on transfer.


The restrictions imposed by this Section 3.06 and by
Sections 2.02, 2.05 and 3.10 upon the transferability of any particular
Restricted Security shall cease and terminate upon delivery by the Company to
the Trustee of an Officers’ Certificate stating that such Restricted Security
has been sold pursuant to an effective Resale Registration Statement under the
Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto). 
Any Restricted Security as to which the Company has delivered to the
Trustee an Officers’ Certificate stating that such restrictions on transfer
shall have expired in accordance with their terms or shall have terminated may,
upon surrender of such Restricted Security for exchange to the Security
Registrar in accordance with the provisions of this Section 3.06, be exchanged
for a new Security, of like tenor and aggregate Principal Amount, which shall
not bear the restrictive legends required by Sections 2.02 and 2.05.  The Company shall inform the Trustee in
writing of the effective date of any Resale Registration Statement registering
the Securities under the Securities Act. 
The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the aforementioned resale
registration statement.


As used in the preceding two paragraphs of this
Section 3.06, the term “transfer”
encompasses any sale, pledge, transfer or other disposition of any Restricted
Security.


(c)           Neither
the Trustee, the Security Registrar nor any of their respective agents shall
(i) have any duty to monitor compliance with or with respect to any federal or
state or other securities or tax laws or (ii) have any duty to obtain documentation
relating to any transfers or exchanges other than as specifically required
hereunder.


Section 3.07           Mutilated, Destroyed, Lost and Stolen Securities.  If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and Principal Amount
and bearing a number not contemporaneously outstanding.



 30
 









If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount and bearing a
number not contemporaneously outstanding.


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


Upon the issuance of any new Security under this
Section 3.07, the Company may require payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


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


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


Section 3.08           Persons Deemed Owners. 
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Security Registrar and any agent of the Company, the
Trustee or the Security Registrar may treat the Person in whose name such
Security is registered in the Security Registrar as the owner of such Security
for the purpose of receiving payment of the principal of such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee, the Security Registrar nor any agent of the
Company, the Trustee or the Security Registrar shall be affected by notice to
the contrary.


Section 3.09           Book-Entry
Provisions for Global Securities.


(a)           The
Global Securities initially shall (i) be registered in the name of the
Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee
as custodian for the Depositary and (iii) bear legends as set forth on the face
of the form of Security in Section 2.02.


Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by the Depositary, or
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 



 31
 









giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of any Holder.


(b)           Transfers
of the Global Securities shall be limited to transfers in whole, but not in
part, to the Depositary, its successors or their respective nominees.  Interests of beneficial owners in a Global
Security may be transferred or exchanged, in whole or in part, for Physical
Securities in accordance with the rules and procedures of the Depositary and
the provisions of Section 3.10.  In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Securities if (i) such Depositary
has notified the Company that the Depositary (A) is unwilling or unable to
continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered under the Exchange Act when the Depositary is
required to be so registered to act as such Depositary and, in either such
case, no successor Depositary shall have been appointed within 90 days of such
notification, (ii) there shall have occurred and be continuing an Event of
Default with respect to such Global Security and the Outstanding Securities
shall have become due and payable pursuant to Section 7.02 and the Trustee
requests that Physical Securities be issued or (iii) the Company, at its
option, notifies the Trustee that it elects to cause the issuance of Physical
Securities, subject to applicable procedures of the Depositary; provided that Holders of Physical Securities offered and
sold in reliance on Rule 144A shall have the right, subject to applicable law,
to request that such Securities be exchanged for interests in the applicable
Global Security.


(c)           In
connection with any transfer or exchange of a portion of the beneficial
interest in the Global Security to beneficial owners pursuant to paragraph (b)
above, the Security Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
Principal Amount of the Global Security in an amount equal to the Principal
Amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.


(d)           In
connection with the transfer of the entire Global Security to beneficial owners
pursuant to paragraph (b) above, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner identified
by the Depositary in exchange for its beneficial interest in the Global
Security, an equal aggregate Principal Amount of Physical Securities of
authorized denominations and the same tenor.


(e)           Any
Physical Security constituting a Restricted Security delivered in exchange for
an interest in the Global Security pursuant to paragraph (c) or (d) above
shall, except as otherwise provided by paragraph (c) of Section 3.10, bear the
legend regarding transfer restrictions applicable to the Physical Securities
set forth on the face of the form of Security in Section 2.02.


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



 32
 









Section 3.10           Cancellation and Transfer Provisions.  The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold.  The Trustee shall cancel and dispose of all
Securities surrendered for registration of transfer, exchange, payment, purchase,
repurchase, conversion (pursuant to Article 6 hereof) or cancellation in
accordance with its customary practices. 
If the Company shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the
Trustee for cancellation.  The Company
may not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.


(a)           Transfers to QIBs. 
The following provisions shall apply with respect to the registration of
any proposed transfer of a Security constituting a Restricted Security to a
QIB:


(i)            the Security Registrar shall
register the transfer if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Security Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that it is purchasing the 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 QIB within the meaning of Rule 144A, 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 it
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and


(ii)           if the proposed transferee is an
Agent Member, and the Securities to be transferred consist of Physical
Securities which after transfer are to be evidenced by an interest in the
Global Security, upon receipt by the Security Registrar of instructions given
in accordance with the Depositary’s and the Security Registrar’s procedures,
the Security Registrar shall reflect on its books and records the date and an
increase in the Principal Amount of the Global Security in an amount equal to
the Principal Amount of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred.


(b)           Private Placement Legend. 
Upon the registration of transfer, exchange or replacement of Securities
not bearing the legends required by Sections 2.02 and 2.05, the Security
Registrar shall deliver Securities that do not bear such legends.  Except in the case of a registration of
transfer, exchange or replacement contemplated by the Registration Rights
Agreement, upon the registration of transfer, exchange or replacement of
Securities bearing the legends required by Sections 2.02 and 2.05, the Security
Registrar shall deliver only Securities that bear such legends unless there is
delivered to the Security Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee 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.



 33
 









(c)           General.  By its
acceptance of any Security bearing the legends required by Sections 2.02 and
2.05, each Holder of such a Security acknowledges the restrictions on transfer
of such Security set forth in this Indenture and in such legends and agrees
that it will transfer such Security only as provided in this Indenture.


The Security Registrar shall retain, in accordance
with its customary procedures, copies of all letters, notices and other written
communications received pursuant to this Section 3.10.  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
Security Registrar.


Section 3.11           CUSIP Numbers.  In
issuing the Securities, the Company may use “CUSIP” numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.  The Company
will promptly notify the Trustee of any change in the “CUSIP” numbers.


ARTICLE 4.

Particular Covenants of the Company


Section 4.01           Payment of Principal and Interest.  The Company covenants and agrees that it
shall duly and punctually pay or cause to be paid the principal of and interest
(including Additional Interest and Special Interest, if any), on each of the
Securities and any Make-Whole Interest Payment at the places, at the respective
times and in the manner provided herein and in the Securities.


Section 4.02           Maintenance of Office or Agency.  The Company shall maintain an office or
agency, where the Securities may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served.  The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency not designated or appointed by the
Trustee.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


The Company may also from time to time designate
co-registrars and one or more 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.


The Company will give prompt written notice of any
such designation or rescission and of any change in the location of any such
other office or agency.



 34















The Company hereby initially designates the Trustee as
paying agent, Security Registrar, Custodian and conversion agent and the
Corporate Trust Office.


So long as the Trustee is the Security Registrar, the
Trustee agrees to mail, or cause to be mailed, the notices set forth in Section
9.11(a) and the third paragraph of Section 9.12.  If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Securities it can identify from its records.


Section 4.03           Appointments to Fill Vacancies in Trustee’s Office.  The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 9.12, a Trustee, so that there shall at all times be a Trustee
hereunder.


Section 4.04           Provisions
as to Paying Agent.


(a)           If
the Company shall appoint a Paying Agent other than the Trustee, or if the
Trustee shall appoint such a Paying Agent, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 4.04:


(i)            that it will hold all sums held by
it as such agent for the payment of the principal of or interest, including
Additional Interest and  Special
Interest, if any, or any Make-Whole Interest Payment on the Securities (whether
such sums have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the holders of the Securities;


(ii)           that it will give the Trustee notice
of any failure by the Company (or by any other obligor on the Securities) to
make any payment of the principal of or interest, including Additional Interest
and  Special Interest, if any, or any
Make-Whole Interest Payment on the Securities when the same shall be due and
payable; and


(iii)          that at any time during the
continuance of an Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.


The Company shall, on or before each due date of the
principal of or interest, including Additional Interest and  Special Interest, if any, on the Securities,
deposit with the paying agent a sum (in funds which are immediately available
on the due date for such payment) sufficient to pay such principal or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action; provided,
however, that if such deposit is made on
the due date, such deposit shall be received by the paying agent by 10:00 a.m.
New York City time, on such date.


(b)           If
the Company shall act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on the Securities, set aside, segregate
and hold in trust for the benefit of the holders of the Securities a sum
sufficient to pay such principal or interest, including Additional Interest
and  Special Interest, if any, or any
Make-Whole Interest Payment so becoming due and will promptly notify the
Trustee of any failure to take such action and of any failure by the Company
(or any other obligor under the Securities) to make any payment of



 35
 









the principal of or interest, including Additional Interest and  Special Interest, if any, on the Securities
when the same shall become due and payable.


(c)           Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Company or any paying agent hereunder as required by
this Section 4.04, such sums to be held by the Trustee upon the trusts herein
contained and upon such payment by the Company or any paying agent to the
Trustee, the Company or such paying agent shall be released from all further
liability with respect to such sums.


(d)           Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to hold
sums in trust as provided in this Section 4.04 is subject to Section 11.03 and
Section 11.04.


The Trustee shall not be responsible for the actions
of any other paying agents (including the Company if acting as its own paying
agent) and shall have no control of any funds held by such other paying agents.


Section 4.05           Existence.  Subject to
Article 8, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and rights (charter
and statutory); provided, however,
that the Company shall not be required to preserve any such right if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the holders of the Securities.


Section 4.06          Maintenance of Properties. 
The Company will cause all properties used or useful in the conduct of
its business or the business of any Significant Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any subsidiary.


Section 4.07           Payment of Taxes and Other Claims.  The Company will pay or discharge, or cause
to be paid or discharged, before the same may become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Significant Subsidiary or upon the income, profits or property of the Company
or any Significant Subsidiary, (ii) all claims for labor, materials and
supplies which, if unpaid, might by law become a lien or charge upon the
property of the Company or any Significant Subsidiary and (iii) all stamps and
other duties, if any, which may be imposed by the United States or any
political subdivision thereof or therein in connection with the issuance,
transfer, exchange or conversion of any Securities or with respect to this
Indenture; provided, however,
that, in the case of clauses (i) and (ii), the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (A) if the failure to do so will not, in the aggregate, have a



 36
 









material adverse impact on the Company, or (B) if the
amount, applicability or validity is being contested in good faith by
appropriate proceedings.


Section 4.08           Rule 144A Information Requirement.  Within the period prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision), the Company covenants and agrees
that it shall, during any period in which it is not subject to Section 13 or
15(d) under the Exchange Act, make available to any holder or beneficial holder
of Securities or any Common Stock issued upon conversion thereof which continue
to be Restricted Securities in connection with any sale thereof and any
prospective purchaser of Securities or such Common Stock designated by such
holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
holder of the Securities or such Common Stock and it will take such further
action as any holder or beneficial holder of such Securities or such Common
Stock may reasonably request, all to the extent required from time to time to
enable such holder or beneficial holder to sell its Securities or Common Stock
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such rule may be amended from time to
time.  Upon the request of any holder or
any beneficial holder of the Securities or such Common Stock, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.


Section 4.09           Resale of Certain Securities.  During the period beginning on the date of
issuance of the Securities and ending on the date that is two years thereafter,
the Company shall not, and shall use reasonable efforts to not permit any of
its “affiliates” (as defined under Rule 144
under the Securities Act or any successor provision thereto) to, resell any
Securities which constitute “restricted securities”
under Rule 144 that have been reacquired by any of them.  The Trustee shall have no responsibility in
respect of the Company’s performance of its agreement in the preceding
sentence.


Section 4.10           Commission Filings and Reports.  The Company covenants to comply with Section
314(a) of the Trust Indenture Act as it relates to reports, information and
documents that the Company may be required to file with the Trustee pursuant to
such Section 314(a) and with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act or otherwise by the Exchange Act, the Trust Indenture Act or
other rules and regulations of the Commission and to file such reports,
information and documents with the Trustee within 15 calendar days after the
same is filed with the Commission; provided that
in each case the delivery of materials to the Trustee by electronic means or
filing of documents pursuant to the Commission’s “EDGAR” system (or any
successor electronic filing system) shall be deemed to constitute “filing” with
the Trustee for purposes of this Section 4.10. 
In the event the Company is no longer a subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
continue to provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the Commission had the
Company continued to have been subject to such reporting requirements.  In such event, such reports will be provided
at the times the Company would have been required to provide reports had it
continued to have been subject to the reporting requirements. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein,



 37
 









including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates).


Section 4.11           Book-Entry System.  If
the Securities cease to trade in the Depositary’s book-entry settlement system,
the Company covenants and agrees that it shall use reasonable efforts to make
such other book entry arrangements that it determines are reasonable for the
Securities.


Section 4.12           Additional Interest under the Registration Rights Agreement and Special
Interest under this Indenture. 
If at any time Additional becomes payable by the Company pursuant to the
Registration Rights Agreement or Special Interest becomes payable pursuant to
Section 7.02 of this Indenture, the Company shall promptly deliver to the
Trustee a certificate to that effect and stating (i) the amount of such
Additional or Special Interest that is payable, as applicable and (ii) the date
on which such Additional or Special Interest, as applicable, is payable.  Unless and until a Responsible Officer of the
Trustee receives such a certificate, the Trustee may assume without inquiry
that no Additional or Special Interest, as applicable, is payable.  If the Company has paid Additional or Special
Interest directly to the Persons entitled to such Additional or Special
Interest, the Company shall deliver to the Trustee a certificate setting forth
the particulars of such payment.


Section 4.13           Stay; Extension and Usury Laws.  The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law which would prohibit or forgive the Company
from paying all or any portion of the principal of or interest, including
Additional Interest and  Special
Interest, if any, on the Securities as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.


Section 4.14           Compliance Certificate. 
The Company shall deliver to the Trustee, within one hundred twenty
(120) days after the end of each fiscal year of the Company, an Officer’s
Certificate, stating whether or not to the knowledge of the signer thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and the status thereof
of which the signer may have knowledge.


The Company shall deliver to the Trustee, as soon as
possible and in any event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers’ Certificate
setting forth the details of such Event of Default or Default, its status and
the action which the Company proposes to take with respect thereto.


Any notice required to be given under this Section
4.14 shall be delivered to a Responsible Officer of the Trustee at its
Corporate Trust Office.



 38
 









Section 4.15           Incurrence
of Indebtedness.


Unless and until the aggregate Principal Amount of
Securities outstanding is less than $10.0 million, the Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guaranty or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, ‘‘incur’’) any Indebtedness that is senior to or pari passu with the Securities without the prior consent of
Holders of not less than a majority in aggregate Principal Amount of the
Securities then outstanding. However, the foregoing limitation shall not limit
(i) the incurrence by the Company of Indebtedness represented by mortgage
financings or purchase money obligations, in each case incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property used in the business of the Company and related fees
and expenses, (ii) Indebtedness incurred to finance accounts receivable or
inventory not to exceed the greater of (a) $5.0 million and (b) the Borrowing
Base (as defined below), in each case at any one time outstanding, (iii) the
incurrence by the Company of Indebtedness represented by the Securities or (iv)
the incurrence by the Company of additional Indebtedness in an aggregate
Principal Amount (or accreted value, as applicable) not to exceed $15.0 million
at any one time outstanding.


Notwithstanding any other provision of this Indenture,
solely for the purposes of this Section 4.15, the term ‘‘Indebtedness’’
shall mean any indebtedness of the Company or its Subsidiaries in respect of
borrowed money, whether or not evidenced by bonds, notes, debentures or similar
instruments.


‘‘Borrowing Base’’
means, as of any date, an amount equal to:


(1) 85% of the face amount of all accounts receivable
owned by the Company as of the end of the most recent fiscal quarter preceding
such date that were not more than 90 days past due; plus


(2) 50% of the book value of all inventory, net of
reserves, owned by the Company as of the end of the most recent fiscal quarter
preceding such date.


Solely for the purpose of this Section 4.15,
Indebtedness of Subsidiaries will be deemed to be “senior”
unless it is specifically by its terms made subordinated to the Securities.


ARTICLE 5.

Redemption and Repurchase


Section 5.01           Selection
of Securities to Be Redeemed.


If less than all of the Securities are to be redeemed
at any time, the Trustee will select Securities for redemption by lot, or on a pro rata by another basis the Trustee considers fair and appropriate, subject to
applicable procedures of the Depositary.


 In the event of partial
redemption by lot, the particular Securities to be redeemed will be selected,
unless otherwise provided herein, not less than 20 nor more than 60 days prior
to the redemption date by the Trustee from the outstanding Securities not
previously called for redemption, repurchased or converted.



 39
 









The Trustee will promptly notify the Company in
writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the Principal Amount thereof to be
redeemed.  Securities and portions of
Securities selected will be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Securities of a Holder are to be redeemed, the entire
outstanding amount of Securities held by such Holder, even if not a multiple of
$1,000, shall be redeemed.  Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.


Section 5.02           Notice
of Redemption.


At least 20 days but not more than 60 days before a
redemption date, the Company will mail or cause to be mailed, by first class
mail, a notice of redemption to the Trustee, the Paying Agent and each Holder
whose Securities are to be redeemed at its registered address.


The notice will identify the Securities to be redeemed
and will state:


(i)            the
Redemption Date;


(ii)           the
redemption price;


(iii)          the
then current Conversion Rate;


(iv)          if
any Security is being redeemed in part, the portion of the Principal Amount of
such Security to be redeemed and that, after the redemption date upon surrender
of such Security, a new Security or Securities in Principal Amount equal to the
unredeemed portion will be issued upon cancellation of the original Security;


(v)           the
name and address of the Paying Agent and Conversion Agent;


(vi)          that
Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;


(vii)         that
Holders who wish to covert Securities must surrender such Securities for
conversion no later than the close of business on the Business Day immediately
preceding the Redemption Date and must satisfy the other requirements in
Article 6 of this Indenture;


(viii)        that,
unless the Company defaults in making such redemption payment, interest on
Securities called for redemption ceases to accrue on and after the redemption
date;


(ix)           the
Section of this Indenture pursuant to which the Securities called for
redemption are being redeemed; and


(x)            that
no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities.



 40
 









At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the
Trustee, at least 45 days prior to the redemption date, an Officers’
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.


Section 5.03           Effect of Notice of Redemption.


Once notice of redemption is mailed in accordance with
Section 4.03 hereof, Securities called for redemption become irrevocably due
and payable on the redemption date at the redemption price.  A notice of redemption may not be
conditional.


Section 5.04           Deposit of Redemption Price.


Prior to 10:00 a.m. (local time in The City of New
York) on the Redemption Date (as defined below), the Company shall deposit with
the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided herein) money sufficient to pay the redemption price
of and accrued interest and Additional Interest and Special Interest, if any,
on all Securities to be redeemed on that date. 
The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess
of the amounts necessary to pay the redemption price of, and accrued interest
Additional Interest and Special Interest, if any, on, all Securities to be
redeemed.


If the Company complies with the provisions of the
preceding paragraph, on and after the redemption, interest will cease to accrue
on the Securities or the portions of Securities called for redemption.  If a Security is redeemed on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Security was registered at the close of business on such record date.  If any Security called for redemption is not
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case
at the rate provided in the Securities and in Section 4.01 hereof.


Section 5.05           Optional Redemption.


(a)           Prior to March 20, 2007, the Securities will not be
redeemable.


(b)           On or after March 20, 2007, the Company may, at its
option, redeem all or from time to time any part of the Securities at any time
upon not less than 20 nor more than 60 days’ notice, for a price equal to 100%
of the Principal Amount of the Securities to be redeemed plus any accrued and
unpaid interest, including Additional Interest and Special Interest, if any, to
but excluding the redemption date (the “Redemption
Date”), subject to the rights of Holders on the relevant record date
to receive interest on the relevant interest payment date.



 41
 









(c)             Unless the Company defaults in the payment
of the redemption price, interest will cease to accrue on the Securities or
portions thereof called for redemption on the applicable redemption date.


(d)           Any redemption pursuant to this Section 5.05 shall be made
pursuant to the provisions of Sections 5.01 through 5.04 and 5.12 hereof.


Section 5.06           Mandatory Redemption.


The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Securities.


Section 5.07           Repurchase at Option of Holders Upon
a Fundamental Change.


(a)           Generally.  If a Fundamental Change occurs at any time
prior to the Maturity of the Securities, then each Securityholder shall have
the right, at such Holder’s option, to require the Company to repurchase any or
all of such Holder’s Securities, or any portion thereof, that is equal to
$1,000 or an integral  multiple of $1,000
Principal Amount.  The Fundamental Change
Repurchase Date (as defined below) will be a Business Day specified by the
Company that is not less than 20 nor more than 35 calendar days following the
date of the Fundamental Change Company Notice (as defined below), subject to
extension to comply with applicable law (the “Fundamental
Change Repurchase Date”), at a repurchase price equal to 100% of the
Principal Amount thereof, together with accrued and unpaid interest, including
Additional Interest and  Special
Interest, if any, to, but excluding, the Fundamental Change Repurchase Date
(the “Fundamental Change Repurchase Price”);
provided, however,
that if Securities are repurchased pursuant to this Section 5.07 on any
Interest Payment Date, the interest, including Additional Interest and  Special Interest, if any, payable in respect
of such Interest Payment Date shall be payable to the Holders of record as of
the corresponding Record Date.


Repurchases of Securities under this Section 5.07
shall be made, at the option of the Holder thereof, upon:


(i)            delivery
to the Trustee (or other Paying Agent appointed by the Company) by a Holder,
prior to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, subject to extension to comply with
applicable law, of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth
on Exhibit A-1 of the Securities or otherwise specifying:


(A)          if
certificated, the certificate numbers of Securities to be delivered for
repurchase;


(B)           the
portion of the Principal Amount of Securities to be repurchased, which must be
$1,000 or an integral multiple thereof; and


(C)           that
the Securities are to be repurchased by the Company pursuant to the applicable
provisions of the Securities and the Indenture; and



 42
 









(ii)           delivery
or book-entry transfer of the Securities to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Fundamental Change
Repurchase Notice (together with all necessary endorsements) at the applicable
Corporate Trust Office of the Trustee (or other Paying Agent appointed by the
Company), such delivery being a condition to receipt by the Holder of the
Fundamental Change Repurchase Price therefor; provided
that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 5.07 only if the Securities so delivered to the Trustee (or other
Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice.


Any purchase by the Company contemplated pursuant to
the provisions of this Section 5.07 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Fundamental Change Repurchase Date and the time of the book-entry transfer or
delivery of the Securities.


Notwithstanding anything herein to the contrary, any
Holder delivering to the Trustee (or other Paying Agent appointed by the
Company) the Fundamental Change Repurchase Notice contemplated by this Section
5.07 shall have the right to withdraw such Fundamental Change Repurchase Notice
at any time prior to the close of business on the Fundamental Change Repurchase
Date by delivery of a written notice of withdrawal to the Trustee (or other
Paying Agent appointed by the Company) in accordance with Section 5.09 below.


The Trustee (or other Paying Agent appointed by the
Company) shall promptly notify the Company of the receipt by it of any Fundamental
Change Repurchase Notice or written notice of withdrawal thereof.


(b)           Fundamental Change Company
Notice.  On or before the 20th day after the occurrence of a Fundamental
Change, the Company shall provide to all Holders of record of the Securities and
the Trustee and Paying Agent a notice (the “Fundamental
Change Company Notice”) of the occurrence of such Fundamental Change
and of the repurchase right at the option of the Holders arising as a result
thereof.  Such mailing shall be by first
class mail.  Simultaneously with
providing such Fundamental Change Company Notice, the Company shall publish a
notice containing the information included therein once in a newspaper of
general circulation in The City of New York or publish such information on the
Company’s website or through such other public medium as the Company may use at
such time.


Each Fundamental Change Company Notice shall specify:


(i)            the
events causing the Fundamental Change;


(ii)           the
date of the Fundamental Change;


(iii)          the
last date on which a Holder may exercise the repurchase right;


(iv)          the
Fundamental Change Repurchase Price;


(v)           the
Fundamental Change Repurchase Date;



 43
 









(vi)          the
name and address of the Paying Agent and the Conversion Agent, if applicable;


(vii)         if
applicable, the applicable Conversion Rate and any adjustments to the
applicable Conversion Rate;


(viii)        if
applicable, that the Securities with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted only if the
Holder withdraws the Fundamental Change Repurchase Notice in accordance with
Section 5.09; and


(ix)           the
procedures that Holders must follow to require the Company to repurchase their
Securities.


No failure of the Company to give the foregoing
notices and no defect therein shall limit any Holder’s repurchase rights or
affect the validity of the proceedings for the repurchase of the Securities
pursuant to this Section 5.07.


(c)           No Payment During Events
of Default.  There shall be no
repurchase of any Securities pursuant to this Section 5.07 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Fundamental Change Repurchase Notice) and
is continuing an Event of Default (other than a default that is cured by the
payment of the Fundamental Change Repurchase Price with respect to such
Securities).  The Paying Agent will
promptly return to the respective Holders thereof any Securities (i) with
respect to which a Fundamental Change Repurchase Notice has been withdrawn in
compliance with this Indenture, or (ii) held by it during the continuance of an
Event of Default (other than a default that is cured by the payment of the
Fundamental Change Repurchase Price with respect to such Securities) in which
case, upon such return, the Fundamental Change Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.


(d)           Payment of Fundamental
Change Repurchase Price.  The
Securities to be repurchased pursuant to this Section 5.07 shall be paid for in
cash.


Section 5.08           Effect of Fundamental Change Repurchase Notice.  Upon receipt by the Paying Agent of the
Fundamental Change Repurchase Notice specified in Section 5.07(a), the Holder
of the Security in respect of which such Fundamental Change Repurchase Notice
was given shall (unless such Fundamental Change Repurchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Fundamental Change Repurchase Price with respect to such Security.  Such Fundamental Change Repurchase Price
shall be paid to such Holder, subject to receipt of funds by the Paying Agent,
promptly following the later of (x) the Fundamental Change Repurchase Date with
respect to such Security (provided the
conditions in Section 5.07(a) have been satisfied) and (y) the time of delivery
of such Security to the Paying Agent by the Holder thereof in the manner
required by Section 5.07(b).


Section 5.09           Withdrawal of Fundamental Change
Repurchase Notice.


(a)           A Fundamental Change Repurchase Notice may be withdrawn by
means of a written notice of withdrawal delivered to the Paying Agent in
accordance with the Fundamental



 44
 









Change Company Notice at any time prior to
the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date, specifying:


(i)            the
Principal Amount of the Securities with respect to which such notice of
withdrawal is being submitted;


(ii)           if
Physical Securities have been issued, the certificate numbers of the withdrawn
Securities; and


(iii)          the
Principal Amount of such Securities that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in Principal
Amounts of $1,000 or an integral multiple of $1,000;


provided, however,
that if the Securities are not in certificated form, the notice must comply
with appropriate procedures of the Depositary.


Section 5.10           Deposit of Fundamental Change Repurchase Price.  Prior to 10:00 a.m. (local time in The City
of New York) on the Fundamental Change Repurchase Date, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided herein) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to
pay the Fundamental Change Repurchase Price, of all the Securities or portions
thereof that are to be repurchased as of the Fundamental Change Repurchase
Date.  The Company shall promptly notify
the Trustee in writing of the amount of any deposits of cash made pursuant to
this Section 5.10.  If the Paying Agent
holds cash sufficient to pay the Fundamental Change Repurchase Price of any
Security for which a Fundamental Change Repurchase Notice has been tendered and
not withdrawn in accordance with this Indenture as of the close of business on
the Fundamental Change Repurchase Date, then immediately following the
Fundamental Change Repurchase Date, (a) such Security will cease to be
outstanding and interest will cease to accrue thereon and (b) all other rights
of the Holder in respect thereof will terminate (other than the right to
receive the Fundamental Change Repurchase Price and previously accrued and
unpaid interest, including Additional Interest and  Special Interest, if any, upon delivery or
transfer of such Security).


Section 5.11           Repurchase of Securities at the
Option of the Holder on Specified Dates


(a)           The Holders may require the Company to repurchase the
outstanding Securities for cash on March 15, 2012, March 15, 2017, and March
15, 2022 (each a “Repurchase Date”)
at a purchase price per Security equal to 100% of the aggregate Principal
Amount of the Security, together with any accrued and unpaid interest,
including Additional or Special Interest, if any, to but not including the
applicable Repurchase Date (the “Repurchase
Price”); provided that if such Repurchase Date is an interest
payment date, interest on the Securities will be payable to the Holders in
whose names the Securities are registered at the close of business on the
relevant Record Date.


(b)           The Company shall be required to repurchase any
outstanding Security for which a Holder delivers a written repurchase notice to
the Paying Agent (the “Repurchase Notice”).  This notice must be delivered during the
period beginning at any time from the opening of



 45
 









business on the date that is 20 business days
prior to the repurchase date until the close of business on the repurchase
date.   To exercise the repurchase right,
each Holder must deliver, on or before the business day immediately preceding
the repurchase date, subject to extension to comply with applicable law, the
Securities to be repurchased, duly endorsed for transfer, together with a
written Repurchase Notice.  Each
Repurchase Notice shall include a repurchase election notice, in substantially
the form set forth as Exhibit A-2 of the Securities (a “Repurchase Election Notice”) to be
completed by a Holder.


(c)           Repurchases of Securities by the Company pursuant to this
Section 5.11 shall be made, at the option of the Holder thereof, upon:


(i)            delivery
to the Paying Agent by the Holder of the Repurchase Election Notice at any time
from the opening of business on the date that is 20 Business Days prior to the
applicable Repurchase Date until the close of business on the Business Day
immediately preceding such Repurchase Date stating:


(A)          if
certificated Securities have been issued, the certificate number of the
Security which the Holder will deliver to be purchased (or, if a Holder’s
Securities are not certificated, the Repurchase Election Notice must comply
with applicable procedures of the Depositary),


(B)           the
portion (which may be 100%) of the Principal Amount of the Securities which the
Holder will deliver to be repurchased, which portion must be in a Principal
Amount of $1,000 or an integral multiple thereof, and


(C)           that
such Securities shall be repurchased as of the applicable Repurchase Date
pursuant to the terms and conditions specified in this Section 5.11 of this
Indenture.


(ii)           delivery
of such Security to the Paying Agent at any time after delivery of the
Repurchase Notice (together with all necessary endorsements) at the offices of
the Paying Agent. Delivery of such Security shall be a condition to receipt by
the Holder of the Repurchase Price therefor. The Repurchase Price shall be paid
pursuant to this Section 5.11 only if the Security delivered to the Paying
Agent shall conform in all respects to the description thereof in the related
Repurchase Election Notice, as determined by the Company.


(d)           Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Repurchase Election Notice
contemplated by this Section 5.11 shall have the right to withdraw such
Repurchase Election Notice at any time prior to the close of business on the
Business Day immediately preceding the Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent specifying:


(i)            if
certificated Securities have been issued, the certificate number of the
Security in respect of which such notice of withdrawal is being submitted (or,
if a Holder’s Securities are not certificated, the withdrawal notice must
comply with the applicable procedures of the Depositary),



 46
 









(ii)           the
aggregate Principal Amount of the Security with respect to which such notice of
withdrawal is being submitted, and


(iii)          the
aggregate Principal Amount, if any, of such Security which remains subject to
the original Repurchase Election Notice and which has been or will be delivered
for purchase by the Company.


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


(e)           On or before 10:00 a.m. (local time in The City of
New York) on the applicable Repurchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or if the Company or an Affiliate of the
Company is acting as the Paying Agent, shall segregate and hold in trust) an
amount of money (in immediately available funds if deposited on such Repurchase
Date) sufficient to pay the aggregate Repurchase Price of all the Securities or
portions thereof which are to be purchased as of the applicable Repurchase
Date. The manner in which the deposit required by this Section 5.11(e) is
made by the Company shall be at the option of the Company; provided that
such deposit shall be made in a manner such that the Trustee or a Paying Agent
shall have immediately available funds on the applicable Repurchase Date.


(f)                 If a Paying Agent holds, in
accordance with the terms hereof, money sufficient to pay the Repurchase Price
of any Security for which a Repurchase Election Notice has been tendered and
not withdrawn on the applicable Repurchase Date, then, on the applicable
Repurchase Date, such Security will cease to be outstanding, whether or not the
Security is delivered to the Paying Agent, and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Repurchase
Price as aforesaid) and interest will cease to accrue on such Security.


(g)                The Repurchase Price shall
be paid promptly to such Holder with respect to Securities for which a
Repurchase Election Notice has been tendered and not withdrawn, subject to
receipt of funds by the Paying Agent, promptly following the later of
(x) the Repurchase Date with respect to such Security (provided the
conditions in Section 5.11(c) have been satisfied) and (y) the time
of delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 5.11(c). Securities in respect of which a
Repurchase Election Notice has been given by the Holder thereof may not be
converted pursuant to Article 6 hereof on or after the date of the
delivery of such Repurchase Election Notice, unless the Securities are otherwise
then convertible in accordance with Article 6 and such Repurchase Election
Notice has first been validly withdrawn as specified in Section 5.11(d).


Section 5.12           Securities Redeemed or Repurchased in Whole or in Part.  Any Security that is to be repurchased,
whether in whole or in part, shall be surrendered at the office of the Paying
Agent (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 such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so
surrendered which is not repurchased.


 



 47















Section 5.13           Covenant to Comply With Securities Laws Upon Repurchase of Securities.  In connection with any offer to repurchase
Securities under Section 5.07 or Section 5.11 (provided that such offer or
repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4
(which term, as used herein, includes any successor provision thereto) under
the Exchange Act at the time of such offer or repurchase), the Company shall
(i) comply with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply with all Federal and state securities
laws so as to permit the rights and obligations under Section 5.01 or Section
5.11, as applicable, to be exercised in the time and in the manner specified in
therein.


Section 5.14           Repayment to the Company. 
The Trustee and the Paying Agent shall return to the Company any cash
that remains unclaimed, together with interest, including Additional Interest
and  Special Interest, if any, or
dividends, if any, thereon, held by them for the payment of the Fundamental
Change Repurchase Price or Repurchase Price, as applicable; provided that to the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 5.10 or Section 5.11(d), as
applicable, exceeds the aggregate Fundamental Change Repurchase Price, or
Repurchase Price, as applicable, of the Securities or portions thereof which
the Company is obligated to repurchase as of the Fundamental Change Repurchase
Date or Repurchase Date, as applicable, then as soon as practicable following
the Fundamental Change Repurchase Date or Repurchase Date, as applicable, the
Trustee or the Paying Agent, as the case may be, shall return any such excess to
the Company.


ARTICLE 6.

Conversion


Section 6.01           Right
to Convert.


(a)           Subject
to and upon compliance with the provisions of this Indenture, each Holder shall
have the right, at such Holder’s option, at any time following the Issue Date
of the Securities hereunder through the close of business on the first
Scheduled Trading Day immediately prior to the Stated Maturity to convert the
Principal Amount of any such Securities, or any portion of such Principal
Amount which is $1,000 or an integral multiple thereof at the Conversion Rate
then in effect.


(b)           Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Fundamental Change Repurchase Notice or a Repurchase Notice exercising such
Holder’s option to require the Company to repurchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with
Article 5 hereof prior to the close of business on the Fundamental Change
Repurchase Date or Repurchase Date, as applicable.


Section 6.02           Automatic
Conversion


(a)           The
Company may elect to automatically convert some or all of the Securities (an “Automatic Conversion”) at any time on or
prior to Stated Maturity if the closing price of the Common Stock has exceeded
150% of the Conversion Price (referred to as the ‘‘Auto-Conversion Price’’) for at least 20 Trading Days during
any consecutive 30-day Trading Day period ending within five Trading Days prior
to the date of the Automatic Conversion Notice (as defined below); provided
however, that until March 8, 2009, the Company may elect Automatic



 48
 









Conversion of the Securities only if, in accordance with the
Registration Rights Agreement, a registration statement with respect to the
resale of the Common Stock issuable upon conversion has been declared effective
under the Securities Act prior to the date of the Notice of such Automatic
Conversion and such registration statement remains effective on the date of
Automatic Conversion (the “Automatic
Conversion Date”).  Upon the
Automatic Conversion Date, and without any requirement of further action by the
Company or the Holders, the Securities subject to such Automatic Conversion
shall be converted into Common Stock in accordance with Sections 6.03 and
6.04.  If an Automatic Conversion occurs
on or prior to March 15, 2010, the Company will pay additional interest in an
amount equal to three full years of interest on the Securities, less any
interest actually paid or provided for on the Securities prior to such
Automatic Conversion (the “Make-Whole
Interest Payment”).  The Company
may, at its option, pay the Make-Whole Interest Payment in cash or in Common
Stock. In the event that the Company elects to pay the Make-Whole Interest
Payment in Common Stock, the shares of Common Stock will be valued at the
Auto-Conversion Price.


(b)           The
Company or, at the request of the Company, the Trustee, shall give to all
Holders a notice (the “Automatic Conversion
Notice”) not more than 30 and not less than 20 days prior to the
Automatic Conversion Date.  The Company
shall also deliver a copy of the Automatic Conversion Notice to the Trustee.


(c)           Each
Automatic Conversion Notice shall state: (1) the Automatic Conversion Date, (2)
whether the Make-Whole Interest Payment, if any, shall be paid by the Company
and, if so, if it shall be paid in cash or by delivery of shares of Common
Stock, (3) the place or places where such Securities are to be surrendered for
conversion and accrued and unpaid Make-Whole Interest Payment, if any, and (4)
the Conversion Price then in effect.


(d)           If
the Company elects Automatic Conversion of some, but not all, of the
Securities, the Trustee will select the Securities to be automatically
converted in Principal Amount of $1,000 or in whole multiples thereof, by lot
or on a pro rata basis or by another method that the Trustee considers fair and
appropriate. If any Securities are to be automatically converted in part only,
the Company will issue a security or securities with a Principal Amount equal
to the unconverted principal portion thereof.


(e)           If
a portion of a Holders Securities are selected for partial Automatic Conversion
and such Holders voluntarily converts a portion of such Securities, the
voluntarily converted portion will be deemed to be taken from the portion
selected for Automatic Conversion.


Section 6.03           Conversion
Procedure.


(a)           Each
Security shall be convertible at the office of the Conversion Agent.


(b)           In
the case of a conversion pursuant to Section 6.01, in order to exercise the
conversion right with respect to any interest in Global Securities, the Holder
must complete the appropriate instruction form for conversion pursuant to the
Depositary’s book-entry conversion program, furnish appropriate endorsements
and transfer documents if required by the Company or the Trustee or Conversion
Agent, and pay the funds, if any, required by this Section 6.03 and any
transfer taxes if required pursuant to Section 6.08.  In order to exercise the conversion right 



 49
 









with respect to any Securities in certificated form, the Holder of any
such Securities to be converted, in whole or in part, shall:


(i)            complete and manually sign the
conversion notice provided on the back of the Security (the “Conversion Notice”) or facsimile of the
conversion notice and deliver such notice to a Conversion Agent;


(ii)           deliver the conversion notice, which
is irrevocable, and the Security to a Conversion Agent;


(iii)          if required, furnish appropriate
endorsements and transfer documents,


(iv)          make any payment required under
Section 6.04(d); and


(v)           if required, pay any transfer or
similar tax.


The date on which the Holder satisfies all of the
applicable requirements set forth above is the “Conversion
Date.”


(c)           Each
Conversion Notice shall state the name or names (with address or addresses) in
which any certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. 
All such Securities surrendered for conversion shall, unless the shares
issuable on conversion are to be issued in the same name as the registration of
such Securities, be duly endorsed by, or be accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the Holder or
his duly authorized attorney.


(d)           On
the third Business Day immediately following the Conversion Date, in the case
of any conversion pursuant to Section 6.01 or Section 6.02, subject to
compliance with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Holder (as if such transfer
were a transfer of the Securities (or portion thereof) so converted), the
Company shall issue and shall deliver to such Holder at the office of the
Conversion Agent, a certificate or certificates for the number of full shares
of Common Stock issuable and a check or cash for any cash amounts payable in respect
of such conversion in accordance with the provisions of this Article 6.  In case any Securities of a denomination
greater than $1,000 shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
the Securities so surrendered, without charge to him, new Securities in
authorized denominations in an aggregate Principal Amount equal to the
unconverted portion of the surrendered Securities.


Each conversion shall be deemed to have been effected
as to any such Securities (or portion thereof) on the date on which the
requirements set forth above in this Section 6.03 have been satisfied as to
such Securities (or portion thereof), and the person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the Holder of
record of the shares represented thereby; provided, however, that in case of any such surrender on any date when
the stock transfer books of the Company shall be closed, the person or persons
in whose name the certificate or certificates for such shares are to be issued
shall be deemed to have become the record Holder thereof for all purposes on
the next day on which such stock transfer books are



 50
 









open, but such conversion shall be at the Conversion
Rate in effect on the date upon which such Securities shall be surrendered.


(e)           Upon
the conversion of an interest in Global Securities, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such Global
Securities as to the reduction in the Principal Amount represented
thereby.  The Company shall notify the
Trustee in writing of any conversions of Securities effected through any
Conversion Agent other than the Trustee.


(f)            Each
stock certificate representing Common Stock issued upon conversion of the
Securities that are Restricted Securities shall bear the legend in
substantially the form of Exhibit A hereto.


Section 6.04           Settlement
Upon Conversion.


(a)           Upon
the conversion of Securities, the Company shall, subject to the provisions of
this Article 6, deliver to converting Holders, in respect of each $1,000
Principal Amount of Securities being converted, a number of shares of Common
Stock equal to the applicable Conversion Rate.


(b)           Upon
conversion, Holders shall not receive any separate cash payment for accrued and
unpaid interest, including Additional Interest and  Special Interest, if any, unless such
conversion occurs between a Record Date and the Interest Payment Date to which
it relates.


(c)           If
Securities are converted after 5:00 p.m., New York City time, on a Record Date
for the payment of interest, Holders of such Securities at 5:00 p.m., New York
City time, on such Record Date will receive the interest and Additional
Interest and  Special Interest, if any,
payable on such Securities on the corresponding Interest Payment Date
notwithstanding the conversion. 
Securities surrendered for conversion pursuant to Section 6.01 during
the period from 5:00 p.m., New York City time, on any Record Date to 9:00 a.m.,
New York City time, on the immediately following Interest Payment Date, must be
accompanied by funds equal to the amount of interest and Additional Interest
and  Special Interest, if any, payable on
the Securities so converted; provided that
no such payment need be made (i) if the Company has specified a Fundamental
Change Repurchase Date that is after a Record Date and on or prior to the
corresponding Interest Payment Date; (ii) in respect of any conversion which
occurs after the Record Date for the interest payment due on March 15, 2012 and
on or prior to the corresponding Interest Payment Date or (iii) to the extent
of any overdue interest, if any overdue interest exists at the time of
conversion with respect to such Security.


(d)           The
Company shall not issue fractional shares of Common Stock upon conversion of
Securities.  If multiple Securities shall
be surrendered for conversion at one time by the same Holder, the number of
full shares which shall be issuable upon conversion shall be computed on the
basis of the aggregate Principal Amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered.  If any fractional share of stock would be
issuable upon the conversion of any Securities, the Company shall make payment
therefor to the Holder of such Securities in cash equal to the fraction of a
share of Common Stock otherwise issuable multiplied by the Daily VWAP for the
Conversion Date, in the case of any conversion settled



 51
 









pursuant to Section 6.03(a), or for the last day of the Observation
Period, in the case of any conversion settled pursuant to Section 6.03(b).


Section 6.05           Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that
the Company will not make any adjustment if holders of Securities may
participate in any of the transaction below as a result of holding the
Securities, without having to convert their Securities, along with the holders
of Common Stock, as if such holders of Securities held a number of Common Stock
equal to the applicable Conversion Rate, multiplied by the Principle Amount
(expressed in thousands) of Securities held by such Holder.


(a)           If
the Company, at any time or from time to time while any of the Securities are
outstanding, issues shares of its Common Stock as a dividend or distribution on
shares of Common Stock, or if the Company effects a share split or share
combination, the Conversion Rate will be adjusted based on the following
formula:





where


CR0                           =              the Conversion Rate in effect immediately prior to the
Ex Date of such dividend or distribution, or the effective date of such share
split or combination, as applicable;


CR’                            =              the Conversion Rate in effect
immediately after such Ex Date or effective date;


OS0                           =              the number of shares of Common Stock outstanding
immediately prior to such Ex Date or effective date; and


OS’                            =              the number of shares of Common
Stock outstanding immediately after such Ex Date or effective date.


Such adjustment shall become effective immediately
after the opening of business on the day following the record date for such
dividend or distribution, or the date fixed for determination for such share
split or share combination.  If any
dividend or distribution of the type described in this Section 6.04(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.


(b)           If
the Company, at any time or from time to time while any of the Securities are
outstanding, issues to all or substantially all holders of its outstanding
shares of Common Stock any rights or warrants entitling them for a period of
not more than 60 calendar days to subscribe for or purchase shares of Common
Stock (or securities convertible into or exchangeable or exercisable for Common
Stock) at a price per share (or having a conversion, exchange or exercise price
per share) less than the average of the Last Reported Sale Prices of Common
Stock for the 10 consecutive Trading Day period ending on the Business Day
immediately preceding



 52
 









the date of announcement of such issuance, the Conversion Rate shall be
adjusted based on the following formula:





where


CR0                           =              the Conversion Rate in effect immediately prior to the
Ex Date for such issuance;


CR’                            =              the Conversion Rate in effect
immediately after the Ex Date for such issuance;


OS0                           =              the number of shares of Common Stock outstanding
immediately after the Ex Date for such issuance;


X                                       =              the total number of shares of
Common Stock issuable pursuant to such rights; and


Y                                        =              the number of shares of Common
Stock equal to the aggregate price payable to exercise such rights divided by
the average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading Day period ending on the Business Day immediately preceding
the date of announcement of the issuance of such rights.


To the extent that shares of Common Stock (or
securities convertible into or exchangeable or exercisable for shares of Common
Stock) are not delivered pursuant to such rights or warrants, upon the
expiration or termination of such rights or warrants, the Conversion Rate shall
be readjusted to the Conversion Rate which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of the delivery of only the number of shares of Common Stock (or
securities convertible into or exchangeable or exercisable for shares of Common
Stock) actually delivered.  In the event
that such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate which would then be in effect if the date
fixed for the determination of stockholders entitled to receive such rights or
warrants had not been fixed.  In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at less than the average of the Last Reported
Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on
the Business Day immediately preceding the date of announcement of such
issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received for
such rights or warrants and the value of such consideration, if other than
cash, to be determined in good faith by the Board of Directors of the Company.


For the purposes of this Section 6.05(b), rights or
warrants distributed by the Company to all holders of its Common Stock
entitling them to subscribe for or purchase shares of the Company’s capital
stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (a “Trigger Event”):  (1)
are 



 53
 









deemed to be transferred with such shares of Common
Stock; (2) are not exercisable; and (3) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 6.05(b), (and no adjustment to the Conversion Rate
under this Section 6.05(b) will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and 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 6.05(b).  If any such right or warrant, including any
such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights 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 record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof).  In addition, in the
event of any distribution (or deemed distribution) of rights 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 6.05(b) was made, (1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by any Holders
thereof, the Conversion Rate shall be readjusted upon such final 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 of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all applicable holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or warrants which
shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights and warrants had not
been issued.


(c)           If
the Company, at any time or from time to time while the Securities are
outstanding, distributes shares of any class of Capital Stock of the Company,
evidences of its Indebtedness or other assets or property of the Company to all
or substantially all holders of its Common Stock, excluding:


(i)            dividends or distributions referred
to in Section 6.05(a);


(ii)           rights or warrants referred to in
Section 6.05(b); and


(iii)          dividends or distributions referred to
in Section 6.05(d);


then the conversion rate will be adjusted based on the
following formula:





where


CR0                           =              the Conversion Rate in effect immediately prior to the
Ex Date for such distribution;



 54
 









CR’                            =              the Conversion Rate in effect
immediately after the Ex Date for such distribution;


SP0                             =              the average of the Last Reported Sale Prices of the
Common Stock over the 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 Company) of the shares of Capital
Stock, evidences of Indebtedness, assets or property distributed with respect
to each outstanding share of the Common Stock on the Ex Date for such distribution.


Such adjustment shall become effective immediately
prior to the opening of business on the day following the record date for such
distribution.  If the Board of Directors
of the Company determines the Fair Market Value of any distribution for purposes
of this Section 6.05(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 average of the Last Reported
Sale Prices of the Common Stock.


With respect to an adjustment pursuant to this Section
6.05(c) where there has been a payment of a dividend or other distribution on
the Common Stock or shares of Capital Stock of any class or series, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before
5:00 p.m., New York City time, on the effective date of such Spin-Off shall be
increased based on the following formula:





where


CR0                           =              the Conversion Rate in effect immediately prior to the
effective date of the adjustment;


CR’                            =              the Conversion Rate in effect
immediately after the effective date of the adjustment;


FMV0                =              the
average of the Last Reported Sale Prices of the Capital Stock or similar equity
interest distributed to holders of Common Stock applicable to one share of
Common Stock over the first ten consecutive Trading Day period after the
effective date of the Spin-Off; and


MP0                        =              the average of the Last Reported Sale Prices of Common
Stock over the first ten consecutive Trading Day period after the effective
date of the Spin-Off.


The adjustment to the Conversion Rate under the
preceding paragraph will occur on the tenth Trading Day from, and including,
the effective date of the Spin-Off.



 55
 









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





where


CR0                           =              the Conversion Rate in effect immediately prior to the
Ex Date for such distribution;


CR’                            =              the Conversion Rate in effect
immediately after the Ex Date for such distribution;


SP0                             =              the Last Reported Sale Price of a share of Common Stock
on the Trading Day immediately preceding the Ex Date for such distribution; and


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


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





where


CR0                           =              the Conversion Rate in effect immediately prior to the
effective date of the adjustment;


CR’                            =              the Conversion Rate in effect
immediately after the effective date of the adjustment;


AC                              =              the Fair Market Value (as
determined by the Board of Directors) of the aggregate consideration paid or
payable for shares 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;


OS’                            =              the number of shares of Common
Stock outstanding immediately after the date such tender or exchange offer
expires; and



 56
 









SP’                              =              the average of the Last Reported
Sale Prices of Common Stock over the 10 consecutive Trading Day period
commencing on the Trading Day next succeeding the date such tender or exchange
offer expires.


The adjustment to the Conversion Rate under this
Section 6.05(e) shall occur on the tenth Trading Day from, and including the
Trading Day next succeeding the date such tender or exchange offer expires.


If the Company is obligated to repurchase shares
pursuant to any such tender or exchange offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such tender or exchange had not
been made.


(f)            For
purposes of this Section 6.05, “record date”
shall mean, with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of stockholders
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).


(g)           If
application of the formulas provided in Sections 6.05(a), 6.05(b), 6.05(c),
6.05(d) or 6.05(e) would result in a decrease in the Conversion Rate, no
adjustment to the Conversion Rate shall be made except in the case of a
subdivision or split of the Company’s Common Stock.


(h)           To
the extent permitted by applicable law and subject to subsection (i) below, the
Company from time to time may increase the Conversion Rate by any amount for
any period of time if the period is at least 20 days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. 
Whenever the Conversion Rate is increased pursuant to this Section
6.05(g), the Company shall mail to Holders of record of the Securities a notice
of the increase at least 15 days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.


(i)            The
Company may make such increases in the Conversion Rate, in addition to any
adjustments required by Section 6.05(a), 6.05(b), 6.05(c), 6.05(d), 6.05(e) or
6.05(f), as the Board of Directors considers to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common
Stock resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.


(j)            All
calculations under this Article 6 shall be made by the Company and shall be
made to the nearest cent or to the nearest one-ten-thousandth of a share, as
the case may be.


(k)           Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent an Officers’ Certificate setting
forth the Conversion Rate after such adjustment and setting forth a brief
statement of the facts 



 57
 









requiring such adjustment. 
Unless and until a Responsible Officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume without
inquiry that the last Conversion Rate of which it has knowledge is still in
effect.  Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to each Securityholder at such Holder’s last
address appearing on the list of Securityholders provided for in Section 3.06,
within 20 days after execution thereof. 
Failure to deliver such notice shall not affect the legality or validity
of any such adjustment.


(l)            In
any case in which this Section 6.05 provides that an adjustment shall become
effective immediately after a record date for an event, the Company may defer
until the occurrence of such event (i) issuing to the Holder of any Securities
converted after such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such Holder any amount in cash in lieu of any fraction pursuant to Section
6.04.


(m)          For
purposes of this Section 6.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so
long as the Company does not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock.


(n)           In
no event will the total number of shares of Common Stock issuable upon
conversion exceed 153.8 shares of Common Stock per $1,000 Principal Amount of
Securities, whether as a result of an increase in the Conversion Rate in
connection with a Fundamental Change or otherwise, subject in each case to
adjustments in the same manner as the Conversion Rate as set forth in
subsections (a), (b) and (c) of this Section 6.05 (the “Conversion Rate Cap”).  The Company shall not take any action
described in subsections (d) or (e) of this Section 6.05 if, as a result of
such action, the adjustment to the Conversion Rate that would otherwise be made
pursuant to the provisions of subsections (d) or (e) of this Section 6.05 would
be limited by the Conversion Rate Cap, unless such action would not result in a
violation of NASD Rule 4350 as such rule or successor to such rule may be then
in effect and interpreted by the NASD (or any similar rule of any other stock
exchange which is the primary exchange upon which the Common Stock is listed).
If such action would not result in a violation of NASD Rule 4350, or any
successor rule or similar rule of any other stock exchange which is the primary
exchange upon which the Common Stock is then listed, then the Conversion Rate
Cap shall not apply to such action taken by the Company.


Section 6.06           Effect of Reclassification, Consolidation, Merger or Sale.  If any of the following events occur:


(i)            any recapitalization,
reclassification or change of shares of Common Stock issuable upon conversion
of the Securities (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision
or 



 58
 









combination, or
any other change for which an adjustment is provided in Section 6.05(c));


(ii)           any consolidation, merger or
combination to which the Company is a party other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than in par value, or from par value to
no par value, or from no par value to par value, or as a result of a
subdivision or combination) in outstanding shares of Common Stock; or


(iii)          any sale, lease or other transfer of
all or substantially all of the properties and assets of the Company and its
Subsidiaries to any other Person, or any statutory share exchange, in each case
as a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash or any
combination of the foregoing) with respect to or in exchange for such Common
Stock, then the Company or the successor or purchasing person, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing that the Securities shall be convertible into
the kind and amount of shares of stock, securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance by a holder of a number of shares of
Common Stock issuable upon conversion of such Securities (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
convert all such Securities) immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance (the “Reference Property”).  If the transaction causes Common Stock to be
converted into the right to receive more than a single type of consideration
(determined based in part upon any from of stockholder election), 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 election.  Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 6. 
If, in the case of any such reclassification, change, consolidation,
merger, combination, sale or conveyance, the Reference Property receivable
thereupon by a holder of Common Stock includes shares of stock, securities or
other property or assets (including cash) of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.


The Company shall cause notice of the execution of
such supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the register of the Securities maintained by the
Registrar, within 20 days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.  The above provisions of this Section shall
similarly apply to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances. 
If this Section 6.06 applies to any event or occurrence, Section 6.05
shall not apply.



 59















Section 6.07           Adjustments
of Average Prices.  Whenever a
provision of the Indenture requires the calculation of an average of Last
Reported Sale Prices or Daily VWAP over a span of multiple days, the Company
will make appropriate adjustments to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an 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, at any
time during the period from which the average is to be calculated.


Section 6.08           Adjustments
Upon Certain Fundamental Changes.


(a)           If
a Holder elects to convert Securities in connection with a Fundamental Change
that is consummated on or before March 15, 2010, the Conversion Rate for such
Securities shall be increased by an additional number of shares of Common Stock
(the “Additional Shares”) as
described below.


(b)           The
number of Additional Shares shall be determined by reference to the table
attached as Schedule A hereto, based on the date on which the
Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock Price”) paid per share of Common
Stock in the Fundamental Change.  If the
Fundamental Change is a transaction described in clause (2) of the definition
thereof, and holders of Common Stock receive only cash in such Fundamental
Change, the Stock Price shall be the cash amount paid per share.  In all other cases, the Stock Price shall be
the average of the Last Reported Sale Prices of Common Stock over the five
Trading Day period ending on the Trading Day preceding the Effective Date of
the Fundamental Change.


(c)           The
Stock Prices set forth in the first row of the table in Schedule A
hereto shall be adjusted as of any date on which the Conversion Rate of the
Securities is otherwise adjusted.  The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior
to such adjustment, multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to such adjustment and the denominator of
which is the Conversion Rate as so adjusted. 
The number of Additional Shares set forth in such table shall be
adjusted in the same manner as the Conversion Rate as set forth in Section
6.05.


(d)           In
the event that the exact Stock Prices and Effective Dates relating to a
Fundamental Change are not set forth in the table in Schedule A, then:


(i)            If the Stock Price is between two
Stock Price amounts in the table or the Effective Date is between two Effective
Dates in the table, the number of Additional Shares shall be determined by a
straight-line interpolation between the number of Additional Shares set forth
for the higher and lower Stock Price amounts and the two dates, as applicable,
based on a 365-day year.


(ii)           If the Stock Price is greater than
$50.00 per share (subject to adjustment in the same manner as the Conversion
Rate as set forth in Section 6.05), no Additional Shares will be issued upon
conversion.



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(iii)          If the Stock Price is less than $6.50
per share (subject to adjustment in the same manner as the Conversion Rate as
set forth in Section 6.05), no Additional Shares will be issued upon
conversion.


Section 6.09           Taxes
on Shares Issued.  Any issue
of stock certificates on conversions of Securities shall be made without charge
to the converting Holder for any documentary, transfer, stamp or any similar
tax in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto.  The Company
shall not, however, be required to pay any such tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name
other than that of the Holder of any Securities converted, and the Company
shall not be required to issue or deliver any such stock certificate unless and
until the person or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.


Section 6.10           Reservation of Shares; Shares to be Fully Paid; Compliance With
Governmental Requirements; Listing of Common Stock.  The Company shall provide, free from
preemptive rights, out of its authorized but unissued shares or shares held in
treasury, sufficient shares of Common Stock to provide for the conversion of
the Securities from time to time as such Securities are presented for conversion
(assuming that, at the time of the computation of such number of shares or
securities, all such Securities would be held by a single Holder).


Before taking any action that would cause an
adjustment increasing the Conversion Rate to an amount that would cause the
Conversion Price to be reduced below the then par value, if any, of the shares
of Common Stock issuable upon conversion of the Securities, the Company will
take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of
such Common Stock at such adjusted Conversion Price.


The Company covenants that all shares of Common Stock
that may be issued upon conversion of Securities shall be newly issued shares
or treasury shares, shall be duly authorized, validly issued, fully paid and
non-assessable and shall be free from preemptive rights and free from any lien
or adverse claim.


The Company shall use its reasonable efforts to list
or cause to have quoted any shares of Common Stock to be issued upon conversion
of Securities on each national securities exchange or over-the-counter or other
domestic market on which the Common Stock is then listed or quoted.


Section 6.11           Responsibility of Trustee. 
The Trustee and any other Conversion Agent shall not at any time be
under any duty or responsibility to any Securityholder to determine the
Conversion Rate or whether any facts exist which may require any adjustment of
the Conversion Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same.  The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered 



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upon the conversion of any Securities; and the Trustee
and any other Conversion Agent make no representations with respect
thereto.  Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Securities for the
purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article 6.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 6.06 relating either to
the kind or amount of shares of stock or securities or property (including
cash) receivable by Holders upon the conversion of their Securities after any
event referred to in such Section 6.06 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 9.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers’ Certificate (which the Company shall
be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.


Section 6.12           Notice to Holders Prior to Certain Actions.  In case:


(a)           the
Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to
Section 6.05; or


(b)           the
Company shall authorize the granting to the holders of all or substantially all
of its Common Stock of rights or warrants to subscribe for or purchase any
share of any class or any other rights or warrants; or


(c)           of
any reclassification or reorganization of the Common Stock of the Company
(other than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or of
the sale, lease or transfer of all or substantially all of the assets of the
Company or any of its Significant Subsidiaries; or


(d)           of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company or any of its Significant Subsidiaries; then, in each case, the Company
shall cause to be filed with the Trustee and the Conversion Agent and to be
mailed to each Securityholder at such Holder’s address appearing on the list of
Securityholders provided for in Section 3.06 of this Indenture, as promptly as
practicable but in any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or,
if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, sale, lease, transfer, dissolution, liquidation or winding up is
expected to become effective or occur, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.



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Section 6.13           Stockholder Rights Plan. 
Each share of Common Stock issued upon conversion of Securities pursuant
to this Article 6 shall be entitled to receive the appropriate number of
rights, if any, and the certificates representing the Common Stock issued upon
such conversion shall bear such legends, if any, in each case as may be provided
by the terms of the Stockholder Rights Plan and any subsequent stockholder
rights agreement adopted by the Company, as any such agreement may be amended
from time to time.  If at the time of
conversion, however, the rights have separated from the shares of Common Stock
in accordance with the provisions of the applicable stockholder rights
agreement so that the Holders of the Securities would not be entitled to
receive any rights in respect of Common Stock issuable upon conversion of the
Securities, the Conversion Rate will be adjusted at the time of separation as
if the Company has distributed to all holders of Common Stock, shares of
Capital Stock of the Company, evidence of indebtedness or assets as provided in
Section 6.05(c), subject to readjustment in the event of the expiration,
termination or redemption of such rights.


Section 6.14           Company Determination Final. 
Any determination that the Company or its Board of Directors must make
pursuant to this Article 6 shall be conclusive if made in good faith and in
accordance with the provisions of this Article 6, absent manifest error, and
set forth in a Board Resolution.


Section 6.15           Exchange
in Lieu of Conversion.


(a)           If
at any time when a Holder surrenders Securities for conversion prior to the
Stated Maturity of the Securities, the Company:


(i)            has entered into an agreement with a
Financial Institution designated by the Company (a “Designated Institution”) under which the Designated
Institution may accept such Securities in exchange for shares of Common Stock
and cash, as applicable, equal to the consideration due upon conversion as
provided in Section 6.04; and


(ii)           notifies the Holder surrendering such
Securities for conversion by the close of business on the Business Day
immediately following the Conversion Date that it has directed the Designated
Institution to make an exchange in lieu of conversion, then, notwithstanding
anything in this Indenture to the contrary, the Company may direct the
Conversion Agent to surrender such Securities to the Designated Institution for
exchange in lieu of conversion.


(b)           If
the Designated Institution accepts Securities surrendered for exchange, it
shall deliver the number of shares of Common Stock and the amount of cash, as
applicable, specified in Section 6.04 to the Conversion Agent and the
Conversion Agent shall deliver such shares of Common Stock and cash, as
applicable, to the Holder, within the time periods specified in Section
6.03(d), which delivery shall be deemed to satisfy the Company’s conversion
obligations under this Article 6 with respect to the surrendered
Securities.  Any Securities so exchanged
by such Designated Institution shall remain Outstanding for all purposes under
this Indenture.


(c)           If
the Designated Institution agrees to accept any Securities for exchange but
does not timely deliver the related consideration to the Conversion Agent, or
if the Designated Institution does not accept such Securities for exchange, the
Company shall, as promptly as 



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practicable thereafter, convert such Securities into shares of Common
Stock and cash, as applicable, in accordance with the provisions of Section
6.03 and Section 6.04.


(d)           For
the avoidance of doubt, in no event will the Company’s designation of a
Financial Institution pursuant to this Section 6.15 require such Financial
Institution to accept any Securities for exchange.


ARTICLE 7.

Events of Default; Remedies


Section 7.01           Events
of Default.  “Event of
Default,” wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


(a)           default in the payment of interest, including Additional
Interest and  Special Interest, on any
Securities when due and payable and such default continues for a period of 30
days;


(b)           default in the payment of the Principal Amount or
Fundamental Change Repurchase Price on any Security at Maturity or when such
amount otherwise becomes due and payable;


(c)           default in the Company’s obligation to convert the
Securities into shares of Common Stock upon exercise of a Holder’s conversion
rights in accordance with Article 6 hereof and such default continues for a
period of five days;


(d)           failure by the Company to provide the Fundamental Change
Company Notice to Holders when due;


(e)           failure by the Company to comply with its obligations
under Article 8;


(f)            default in the observance or performance of any covenant
of the Company in this Indenture, and such default continues for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate Principal Amount of the Outstanding Securities a written
notice specifying such default and requiring it to be remedied and stating that
such notice is a “Notice of Default”
hereunder;


(g)           default by the Company or any Significant Subsidiary of
the Company in the payment of the principal or interest by the end of the
applicable grace period, if any, on any mortgage, agreement or other instrument
under which there may be outstanding, or by which there may be secured or
evidenced any Indebtedness for money borrowed in excess of $10,000,000 in the
aggregate of the Company and/or any such Significant Subsidiary, whether such
Indebtedness now exists or is hereafter created, resulting in such Indebtedness
in excess of $10,000,000 in the aggregate becoming or being declared due and
payable prior to the scheduled maturity thereof, or not being paid by the
Company when due at the scheduled maturity thereof;



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(h)           the rendering against the Company or any of its
Subsidiaries of a final judgment for the payment of $10,000,000 or more,
excluding any amounts covered by insurance, which judgment remains undischarged
and unstayed within 60 days after (i) the date on which the right to appeal
such judgment has expired if no such appeal has commenced or (ii) the date of
which all rights to appeal such judgment have been extinguished;


(i)            the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company of a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, (ii) a decree or order
adjudging the Company or a Significant Subsidiary of the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable federal or state law or (iii) appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of a Significant Subsidiary of the Company of any substantial part
of its property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or


(j)            the commencement by the Company or by a Significant
Subsidiary of the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company or of a Significant Subsidiary of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of a Significant Subsidiary of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by
the Company or by a Significant Subsidiary of the Company in furtherance of any
such action.


Section 7.02           Acceleration of Maturity; Rescission and Annulment.


(a)           If an Event of Default (other than those specified in Section
7.01(i) and 7.01(j)) occurs and is continuing, then and in every such case the
Trustee by notice to the Company, or the Holders of not less than 25% in
aggregate Principal Amount of the Outstanding Securities by notice to the
Company and the Trustee may, and the Trustee at the request of such Holders
shall, declare the Principal Amount plus accrued and unpaid interest, including
Additional Interest and  Special
Interest, if any, on all the Outstanding Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such Principal Amount plus accrued
and unpaid interest, including Additional Interest and  Special Interest, if any, shall become
immediately due and payable.


Notwithstanding the foregoing, in the case of an Event
of Default specified in Section 7.01(i)or Section 7.01(j), the Principal Amount
plus accrued and unpaid interest, including 



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Additional Interest and  Special Interest, if any, on all Outstanding
Securities will ipso facto become due and payable
without any declaration or other act on the part of the Trustee or any Holder.


Notwithstanding the foregoing or anything to the
contrary set forth in this Indenture, to the extent elected by the Company, the
sole remedy for an Event of Default relating to the failure to comply with the
reporting obligations set forth in Section 4.10 herein and for any failure to
comply with the requirements of Section 314(a)(1) of the Trust Indenture Act,
will for the first 180 days after the occurrence of such an Event of Default
consist exclusively of the right to receive special interest on the Securities
at an annual rate equal to 0.25% of the Principal Amount of the Securities (“Special Interest”). The Special Interest will accrue on all
outstanding Securities from and including the date on which an Event of Default
relating to a failure to comply with the reporting obligations set forth in
Section 4.10 herein first occurs to but not including the 180th day thereafter
(or such earlier date on which the Event of Default shall have been cured or
waived). On such 180th day (or earlier, if the Event of Default relating to the
reporting obligations is cured or waived prior to such 180th day), such Special
Interest will cease to accrue and, if the Event of Default relating to
reporting obligations has not been cured or waived prior to such 180th day, the
Securities will be subject to acceleration as provided in the first paragraph
of Section 7.02(a). In the event the Company does not elect to pay Special
Interest upon an Event of Default in accordance with this paragraph, the
Securities will be subject to acceleration as provided above. If the Company
elects to pay Special Interest as the sole remedy an Event of Default relating
to the failure to comply with reporting obligations in Section 4.10 or for any
failure to comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act in,  the Company will
notify all Holders, the Trustee and Paying Agent of such election on or before
the close of business on the date on which such Event of Default first occurs.


(b)           At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article 7 provided, the Holders
of a majority in aggregate Principal Amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:


(i)            such
rescission and annulment will not conflict with any judgment or decree of a
court of competent jurisdiction; and


(ii)           all
Events of Default, other than the non-payment of the Principal Amount plus
accrued and unpaid interest, including Additional Interest and  Special Interest, or any payment of the
Repurchase Price or Fundamental Change Repurchase Price or any provision which
may not be modified or amended without the consent of the Holder of each
outstanding Security affected, that have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 7.12.


No such rescission shall affect any subsequent default
or impair any right consequent thereon.


Section 7.03           Collection of Indebtedness and Suits for Enforcement by Trustee.  The Company covenants that if a Default is
made in the payment of the Principal Amount plus 



 66
 









accrued and unpaid interest, including Additional
Interest and  Special Interest, if any,
at the Maturity thereof or in the payment of the Fundamental Change Repurchase
Price or Repurchase Price in respect of any Security, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.


If an Event of Default occurs and is continuing, the
Trustee may, but shall not be obligated to, pursue any available remedy to
collect the payment of the Principal Amount plus accrued but unpaid interest,
including Additional Interest and Special Interest, if any, on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.  The Trustee may maintain a
proceeding even if the Trustee does not possess any of the Securities or does
not produce any of the Securities in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of, or acquiescence
in, the Event of Default.  No remedy is
exclusive of any other remedy.  All
available remedies are cumulative.


Section 7.04           Trustee May File Proofs of Claim.  In case of any judicial proceeding relative
to the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding.  In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
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 9.07.


No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


Section 7.05           Application of Money Collected.  Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money to Holders,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:


FIRST:  To the
payment of all amounts due the Trustee under Section 9.07;


SECOND:  To the
payment of the amounts then due and unpaid on the Securities for the Principal
Amount, Fundamental Change Repurchase Price, Repurchase Price, Make-Whole
Interest Payment or interest, including Additional Interest and  Special Interest, as the case may be, in
respect of which or for the benefit of which such money has been collected,
ratably, 



 67
 









without preference or priority of any kind, according
to the amounts due and payable on such Securities; and


THIRD:  To the
payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.


Section 7.06           Limitation on Suits No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder (other than in the case of an Event of Default specified in
Section 7.01(a) or Section 7.01(b)), unless:


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


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


(iii)          such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance
with such request;


(iv)          the
Trustee for 60 days after its receipt of such notice, request and offer of
security or indemnity has failed to institute any such proceeding; and


(v)           no
direction, in the opinion of the Trustee, inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate Principal Amount of the Outstanding Securities;


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


Section 7.07           Unconditional Right of Holders to Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of the Principal Amount,
Fundamental Change Repurchase Price or interest in respect of the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities or any Fundamental Change Repurchase Date, as applicable, and to
convert the Securities in accordance with Article 6, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
such Holder.


Section 7.08           Restoration of Rights and Remedies.  If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any 



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determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.


Section 7.09           Rights and Remedies Cumulative.  Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.07, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or
remedy hereunder shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.


Section 7.10           Delay or Omission Not Waiver.  No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.  Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.


Section 7.11           Control by Holders. 
The Holders of a majority in Principal Amount of the Outstanding
Securities shall have the right to 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 the Trustee, provided that:


(i)            such
direction shall not be in conflict with any rule of law or with this Indenture;
and


(ii)           the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.


Section 7.12           Waiver of Past Defaults. 
The Holders of not less than a majority in Principal Amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past Default hereunder and its consequences, except a Default:


(i)            Described
in Section 7.01(a) or Section 7.01(b); or


(ii)           in
respect of a covenant or provision hereof which under Article 12 cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.


Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.


Section 7.13           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




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it as Trustee, in either case in respect of the
Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney’s fees and expenses, against any party
litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant; but the provisions of this
Section 7.13 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in Principal Amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Principal Amount on any Security on or after
Maturity of such Security or the Fundamental Change Repurchase Price.


Section 7.14           Waiver of Stay or Extension Laws.  The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay, or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(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 hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


Section 7.15           Violations of Certain Covenants.  A violation of Section 4.10 or any other
covenant or agreement in this Indenture that expressly provides that a
violation of such covenant or agreement shall not constitute an Event of
Default may only be enforced by the Trustee by instituting a legal proceeding
against the Company for enforcement of such covenant or agreement.


Section 7.16           Notice of Default. 
The Trustee may withhold notice to the Holders of the Securities of any
Event of Default, except defaults in payment of Principal Amount or interest,
including Additional Interest and 
Special Interest, if any, on the Securities, if and so long as a
committee of the trust officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of the
Securities.


Section 7.17           Default Interest. 
Payments of the Fundamental Change Repurchase Price, principal or
interest, including Additional Interest and 
Special Interest, if any, that are not made when due will accrue
interest at the annual rate of 1% per annum above the then-applicable interest
rate from the required payment date.


ARTICLE 8.

Consolidation, Merger, Conveyance, Transfer or Lease


Section 8.01           Company May Consolidate, etc., Only on Certain Terms.  The Company shall not consolidate with or
merge into any other Person or convey, transfer or lease all or substantially
all of its properties and assets to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or convey,
transfer or lease all or substantially all of its properties and assets to the
Company, unless:


(a)           the resulting, surviving or transferee Person (the “Successor Company”) is a corporation
organized and validly existing under the laws of the United States of America,
any 



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State thereof or the District of Columbia or
is a corporation, limited liability company, partnership or trust organized and
existing under the laws of a jurisdiction outside the United States;


(b)           the Successor Company (if not the Company itself)
expressly assumes, by a supplemental indenture, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all of the obligations
of the Company under the Securities, and this Indenture; and


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


Section 8.02           Successor Substituted. 
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter.


ARTICLE 9.

The Trustee


Section 9.01           Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence of an
Event of Default and after the curing of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. 
In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.


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


(a)           prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred:


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


(ii)           in
the absence of bad faith and willful misconduct on the part of the Trustee, the
Trustee may conclusively rely as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or opinions which by any
provisions hereof are specifically required 



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to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein);


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


(c)           the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the written
direction of the holders of not less than a majority in Principal Amount of the
Securities at the time outstanding determined as provided in Section 1.04
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture;


(d)           whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section;


(e)           the Trustee shall not be liable in respect of any payment
(as to the correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any paying agent or
any records maintained by any co-registrar with respect to the Securities; and


(f)            if any party fails to deliver a notice relating to an
event the fact of which, pursuant to this Indenture, requires notice to be sent
to the Trustee, the Trustee may conclusively rely on its failure to receive
such notice as reason to act as if no such event occurred.


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


Section 9.02           Notice of Defaults. 
The Trustee shall give the Holders notice of any Default hereunder
within 60 days after the occurrence thereof; provided, that (except in the case
of any Default in the payment of Principal Amount or Interest on any of the
Securities or Fundamental Change Repurchase Price), the Trustee shall be
protected in withholding such notice if and so long as a committee of officers
of the Trustee in good faith determines that the withholding of such notice is
in the interest of the holders of Securities.


Section 9.03           Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section 9.01:


(a)           the Trustee may rely and shall be protected in acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) 



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believed by it in good faith to be genuine
and to have been signed or presented by the proper party or parties;


(b)           any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;


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


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


(e)           the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney (at the reasonable expense
of the Company and shall incur no liability of any kind by reason of such
inquiry or investigation);


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


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


(h)           in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;


(i)            the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and the Indenture; and



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(j)            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.


Section 9.04           No Responsibility for Recitals, Etc.  The recitals contained herein and in the
Securities (except in the Trustee’s certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. 
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. 
The Trustee shall not be accountable for the use or application by the Company
of any Securities or the proceeds of any Securities authenticated and delivered
by the Trustee in conformity with the provisions of this Indenture.


Section 9.05           Trustee, Paying Agents, Conversion Agents or Registrar May Own
Securities.  The Trustee, any
paying agent, any conversion agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent, conversion agent or
Security Registrar.


Section 9.06           Monies to be Held in Trust. 
Subject to the provisions of Section 11.04, all monies and properties
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received.  Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by
law.  The Trustee shall be under no
liability for interest on any money received by it hereunder except as may be
agreed in writing from time to time by the Company and the Trustee.


Section 9.07           Compensation and Expenses of Trustee.  The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder in any capacity (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) as mutually agreed to from time to time in writing
between the Company and the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence, willful misconduct or bad faith.  The Company also covenants to indemnify the
Trustee (or any officer, director or employee of the Trustee), in any capacity
under this Indenture and its agents and any authenticating agent for, and to
hold them harmless against, any and all loss, liability, claim or expense
incurred without negligence, willful misconduct or bad faith on the part of the
Trustee or such officers, directors, employees and agent or authenticating
agent, as the case may be, and arising out of or in connection with the
acceptance or administration of this trust or in any other capacity hereunder,
including the costs and expenses of defending themselves against any claim of
liability in the premises.  The
obligations of the Company under this Section 9.07 to compensate or indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities.  The obligation of the Company under this
Section shall survive the satisfaction and discharge of this Indenture.



 74















When the Trustee and its agents and any authenticating
agent incur expenses or render services after an Event of Default specified in
Section 7.01(j) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.


Section 9.08           Officers’ Certificate as Evidence.  Except as otherwise provided in Section 9.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate
delivered to the Trustee.


Section 9.09           Conflicting Interests of Trustee.  If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


Section 9.10           Eligibility of Trustee. 
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 (or if such Person is a
member of a bank holding company system, its bank holding company shall have a
combined capital and surplus of at least $50,000,000).  If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.10, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.


Section 9.11           Resignation or Removal of Trustee.


(a)           The Trustee may at any time resign by giving written
notice of such resignation to the Company and to the holders of
Securities.  Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee.  If no
successor trustee shall have been so appointed and have accepted appointment
sixty (60) days after the mailing of such notice of resignation to the
Securityholders, the resigning Trustee may, upon ten (10) business days’ notice
to the Company and the Securityholders, appoint a successor identified in such
notice or may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor trustee, or, if any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six (6) months may, subject to the provisions of Section 7.13, on
behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. 
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.


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



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(i)            the
Trustee shall fail to comply with Section 9.09 after written request therefor
by the Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six (6) months; or


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


(iii)          the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation; then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.13, any Securityholder who has been a
bona fide holder of a Security or Securities for at least six (6) months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee; provided, however, that if no successor Trustee shall have been
appointed and have accepted appointment sixty (60) days after either the
Company or the Securityholders has removed the Trustee, the Trustee so removed
may petition at its own expense any court of competent jurisdiction for an
appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


(c)           The holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless, within ten (10) days after notice to the Company of such
nomination, the Company objects thereto, in which case the Trustee so removed
or any Securityholder, or if such Trustee so removed or any Securityholder fails
to act, the Company, upon the terms and conditions and otherwise as in Section
9.11(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor trustee.


(d)           Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 7.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 9.12.


Section 9.12           Acceptance by Successor Trustee.  Any successor trustee appointed as provided
in Section 9.11 shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become effective
and such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any amount
then due it pursuant to the provisions of Section 9.07, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act.  Upon
request of any



 76
 









such successor trustee, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Securities, to secure any amounts then due it pursuant to the
provisions of Section 9.07.


No successor trustee shall accept appointment as
provided in this Section 7.11 unless, at the time of such acceptance, such
successor trustee shall be qualified under the provisions of Section 9.09 and
be eligible under the provisions of Section 9.10.


Upon acceptance of appointment by a successor trustee
as provided in this Section 7.11, the Company (or the former trustee, at the
written direction of the Company) shall mail or cause to be mailed notice of
the succession of such trustee hereunder to the holders of Securities at their
addresses as they shall appear on the Security Register.  If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the Company.


Section 9.13           Succession by Merger, Etc. 
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including any trust created by this Indenture), shall
be the successor to the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 9.09 and
eligible under the provisions of Section 9.10.


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


Section 9.14           Preferential Collection of Claims.  If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of the claims against the Company (or any such other obligor).


Section 9.15           Trustee’s Application for Instructions from the Company.  Any application by the Trustee for written
instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the
holders of



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the Securities under this Indenture) may, at the
option of the Trustee, set forth in writing any action proposed to be taken or
omitted by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective.  The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three (3) Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the Trustee
shall have received written instructions in response to such application
specifying the action to be taken or omitted.


ARTICLE 10.

Holders’ Lists and Reports by Trustee


Section 10.01         Company to Furnish Trustee Names and Addresses of Holders.  The Company will furnish or cause to be
furnished to the Trustee:


(i)            semi-annually,
not more than 15 days after each Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of
such Record Date; and


(ii)           at
such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;


excluding from any such list
names and addresses received by the Trustee in its capacity as Security
Registrar; provided, however,
that no such list need be furnished so long as the Trustee is acting as
Security Registrar.


Section 10.02         Preservation of Information; Communications
to Holders.


(a)           The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 10.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar.  The Trustee may
destroy any list furnished to it as provided in Section 10.01 upon receipt of a
new list so furnished.


(b)           The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.


(c)           Every Securityholder, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.


Section 10.03         Reports By Trustee. 
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the



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Trust Indenture Act at the times and in the manner
provided pursuant thereto.  Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than July 15 of each calendar year, commencing on July
15, 2007.  Each such report shall be
dated as of a date not more than 60 days prior to the date of transmission.


(a)           A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company.  The Company will notify the
Trustee when the Securities are listed on any stock exchange or of any
delisting thereof.


ARTICLE 11.

Satisfaction And Discharge


Section 11.01         Discharge of Indenture. 
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities that have been
destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
canceled, or (b) all the Securities not theretofore canceled or delivered to
the Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption of
all of the Securities (other than any Securities that shall have been mutilated,
destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
interest, including Additional Interest and 
Special Interest, if any, due or to become due to such date of maturity
or redemption date, as the case may be, accompanied by a verification report,
as to the sufficiency of the deposited amount, from an independent certified
accountant or other financial professional satisfactory to the Trustee, and if
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect (except
as to (i) remaining rights of registration of transfer, substitution and
exchange and conversion of Securities, (ii) rights hereunder of Securityholders
to receive payments of principal of and interest, including Additional Interest
and  Special Interest, if any, on, the
Securities and the other rights, duties and obligations of Securityholders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on written demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel as required by Section 1.02 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.


Section 11.02         Deposited Monies to be Held in Trust by Trustee.  Subject to Section 11.04, all monies
deposited with the Trustee pursuant to Section 11.01 shall be held in trust for
the sole benefit of the Securityholders, and such monies shall be applied by
the Trustee to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to the holders of
the particular Securities for the payment or redemption of which



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such monies have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, including
Additional Interest and  Special
Interest, if any.


Section 11.03         Paying Agent to Repay Monies Held.  Upon the satisfaction and discharge of this
Indenture, all monies then held by any paying agent of the Securities (other
than the Trustee) shall, upon written request of the Company, be repaid to it
or paid to the Trustee, and thereupon such paying agent shall be released from
all further liability with respect to such monies.


Section 11.04         Return of Unclaimed Monies. 
Subject to the requirements of applicable law, any monies deposited with
or paid to the Trustee for payment of the principal of or interest, including Additional
Interest and  Special Interest, if any,
on Securities and not applied but remaining unclaimed by the holders of
Securities for two years after the date upon which the principal of or
interest, including Additional Interest and 
Special Interest, if any, on such Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee on
demand and all liability of the Trustee shall thereupon cease with respect to
such monies; and the holder of any of the Securities shall thereafter look only
to the Company for any payment that such holder may be entitled to collect
unless an applicable abandoned property law designates another Person.


Section 11.05         Reinstatement.  If the
Trustee or the paying agent is unable to apply any money in accordance with
Section 11.02 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 11.01
until such time as the Trustee or the paying agent is permitted to apply all
such money in accordance with Section 11.02; provided,
however, that if the Company makes any
payment of interest on or principal of any Security following the reinstatement
of its obligations, 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.


ARTICLE 12.

Supplemental Indentures


Section 12.01         Supplemental Indentures Without Consent of Holders.  Without the consent of any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:


(i)            to
cure any ambiguity or correct any omission, defect or inconsistency contained
herein, so long as such action will not adversely affect the interest of the
Holders;


(ii)           to
provide for the assumption by a successor corporation, partnership, trust or
limited liability company of the obligations of the Company contained herein;


(iii)          to
provide for uncertificated Securities in addition to or in place of
certificated Securities; provided that
the Company receives an opinion of nationally



 80
 









recognized tax counsel that such uncertificated Securities are issued
in registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Securities are described in Section 163(f)(2)(B)
of the Code;


(iv)          to
add guarantees with respect to the Securities;


(v)           to
secure the Securities;


(vi)          to
add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein conferred upon the Company;


(vii)         to
add or modify any other provision herein with respect to matters or questions
arising hereunder which the Company and the Trustee may deem necessary or
desirable and which does not materially and adversely affect the rights of any
Holder;


(viii)        to
modify, eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to effect the qualifications of this Indenture under the
Trust Indenture Act, or under any similar federal statute hereafter enacted; or


(x)            to conform the provisions of this
Indenture to the description thereof contained in the final offering memorandum
dated March 6, 2007.


Section 12.02         Supplemental Indentures With Consent of Holders.  With the consent of the Holders of not less
than a majority in Principal Amount of the Outstanding Securities, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,


(i)            reduce
the rate or extend the time of payment of any Interest, including any
Additional Interest and  Special Interest,
on any Security;


(ii)           reduce
the Principal Amount of, or extend the Stated Maturity of, any Security;


(iii)          make
any change that impairs or adversely affects the conversion rights or
Conversion Rate of any Securities;


(iv)          reduce
the Repurchase Price, Fundamental Change Repurchase Price or redemption price
of any Security or amend or modify in any manner adverse to the Holders of
Securities the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;


(v)           make
any Security payable in currency other than that stated in such Security;



 81
 









(vi)          change
the ranking of the Securities in any manner that adversely affects the rights
of Holders of Securities under this Indenture;


(vii)         impair
the right of a Securityholder to institute a suit for the enforcement of any
payment on or with respect to such Securityholder’s Securities;


(viii)        make
any change that impairs or adversely affects (a) the rights of a Securityholder
to convert a Security or (b) the Conversion Rate of any Securities;


(ix)           modify
any of the provisions of this Section 12.02 or Section 7.12, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.


It shall not be necessary for any Act of Holders under
this Section 12.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.


Section 12.03         Execution of Supplemental Indentures.  In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article 12 or
the modifications thereby of the trusts created by this Indenture, the Trustee
shall be provided with, and (subject to Section 9.01) shall be fully protected
in relying upon, in addition to the documents required by Section 1.02, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. 
Subject to the preceding sentence, the Trustee shall sign such
supplemental indenture if the same does not adversely affect the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that adversely affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


Section 12.04         Effect of Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article 12, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Securityholder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.


Section 12.05         Conformity with Trust Indenture Act.  Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act.


Section 12.06         Reference in Securities to Supplemental Indentures.  Securities authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article 12 shall
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture.  If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.



 82
 









Section 12.07         Notice to Holders of Supplemental Indentures.  The Company shall cause notice of the
execution of any supplemental indenture to be mailed to each Securityholder, at
his address appearing on the Security Register provided for in this Indenture,
within 20 days after execution thereof. 
Failure to deliver such notice shall not affect the legality or validity
of such supplemental indenture.


ARTICLE 13.

Miscellaneous


Section 13.01         Trust Indenture Act Controls.  If any provision of this Indenture limits,
qualifies or conflicts with another provision which is required to be included
in this Indenture by the Trust Indenture Act, the provision required by the
Trust Indenture Act shall control.


Section 13.02         Notices.  Any notice
or communication shall be in writing (including telecopy promptly confirmed in
writing) and delivered in person or mailed by first-class mail addressed as
follows:


if to the Company


DexCom, Inc.


555 Oberlin Drive


San Diego,
California 92121


Attention: General
Counsel


Fax:


if to the Trustee:


Wells Fargo Bank,
National Association


707 Wilshire Blvd.
17th Floor


Los Angeles, CA
90017


Attention:
Corporate Trust Services


(DexCom 4.75%
Convertible Senior Notes due 2027)


Fax: 213-614-3355


 


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


Any notice or communication mailed to a registered
Holder shall be mailed to the Holder at the Holder’s address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.


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, except that notices to the Trustee shall be effective
only upon receipt.


The Trustee agrees to accept and act upon facsimile
transmission of written instructions and/or directions pursuant to this
Indenture given by the Company, provided, however, that (i)



 83
 









the Company, subsequent to such facsimile transmission
of written instructions and/or directions, shall provide the originally
executed instructions and/or directions to the Trustee in a timely manner and
(ii) such originally executed instructions and/or directions shall be signed by
an authorized officer of the Company.


Section 13.03         Communication by Holders with other Holders.  Holders may communicate pursuant to § 312(b)
of the Trust Indenture Act 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 § 312(c) of the Trust Indenture Act.


Section 13.04         Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:


(a)           an Officers’ Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and


(b)           an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.


Section 13.05         Statements Required in Certificate or Opinion.  Each certificate or opinion with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:


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


(b)           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;


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


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


In giving such Opinion of Counsel, counsel may rely as
to factual matters on an Officers’ Certificate or on certificates of public
officials.


Section 13.06         When Securities Are Disregarded.  In determining whether the Holders of the
required Principal Amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities



 84
 









which a Trust Officer of the Trustee actually knows
are so owned shall be so disregarded. 
Also, subject to the foregoing, only Securities outstanding at the time
shall be considered in any such determination.


Section 13.07         Rules by Trustee, Paying Agent and Registrar.  The Trustee may make reasonable rules for
action by, or a meeting of, Holders.  The
Registrar and the Paying Agent may make reasonable rules for their functions.


Section 13.08         Legal Holidays.  A “Legal Holiday” is a Saturday, a Sunday or other day on which
commercial banking institutions are authorized or required to be closed in New
York, New York.  If an Interest Payment
Date is a Legal Holiday, payment shall be made on the next succeeding day that
is not a Legal Holiday, and no interest or Additional or Special Interest, if
any, shall accrue for the intervening period. 
If a Record Date is a Legal Holiday, the Record Date shall not be
affected.  In any case where the Stated
Maturity of any Security is a Legal Holiday, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal need not
be made on such date, but may be made on the next succeeding the next
succeeding day that is not a Legal Holiday, with the same force and effect as
if made on at the Stated Maturity.


Section 13.09         Governing Law.  THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.


Section 13.10         No Recourse Against Others. 
An incorporator, director, officer, employee, Affiliate or stockholder
of the Company, solely by reason of this status, shall not have any liability
for any obligations of the Company under the Securities, this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation.  By accepting a Security, each
Holder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Securities.


Section 13.11         Successors.  All
agreements of the Company in this Indenture and the Securities shall bind their
respective successors.  All agreements of
the Trustee in this Indenture shall bind its successors.


Section 13.12         Multiple 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.  One signed copy is enough to prove this
Indenture.


Section 13.13         Qualification of Indenture. 
The Company shall qualify this Indenture under the Trust Indenture Act
in accordance with the terms and conditions of the Registration Rights
Agreement and shall pay all reasonable costs and expenses (including attorneys’
fees and expenses for the Company, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Securities and the printing of this
Indenture and the Securities.


Section 13.14         Table of Contents; Headings. 
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of



 85
 









reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.


Section 13.15         Severability Clause. 
In case any provision in this Indenture 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 such
provision shall be ineffective only to the extent of such invalidity,
illegality or unenforceability.


Section 13.16         Calculations.  Except
as otherwise provided herein, the Company will be responsible for making all
calculations called for under the Indenture and the Securities.  The Company will make all such calculations
in good faith and, absent manifest error, its calculations will be final and
binding on Holders.  The Company upon
request will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and Conversion Agent is entitled
to rely conclusively upon the accuracy of the Company’s calculations without
independent verification.  The Trustee
will deliver a copy of such schedule to any Holder upon the request of such
Holder.


Section 13.17         Waiver of Jury Trial. 
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
SECURITIES OR THE TRANSACTION CONTEMPLATED THEREBY.


Section 13.18         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 or 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.


[Remainder of
the page intentionally left blank]



 86
 









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


	
  

  	
  DexCom Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew P. Rasdal

  	
   

  
	
   

  	
   

  	
  Andrew P. Rasdal

  	
   

  



 


[Trustee
Signature Follows]



 87
 









 


	
  

  	
  WELLS FARGO BANK,

  
	
   

  	
  NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maddy Hall

  	
   

  
	
   

  	
   

  	
  Madeliena J.
  Hall

  	
   

  



 



 88














SCHEDULE
A


The following table sets forth the number of
Additional Shares to be received per $1,000 Principal Amount of Securities
pursuant to Section 6.08 of this Indenture:


	
  Stock Price
  on

  Effective Date

  	
   

  	
  March 9, 2007

  	
   

  	
  March 15, 2008

  	
   

  	
  March 15, 2009

  	
   

  	
  March 15, 2010

  
	
  $6.50

  	
  25.6

  	
   

  	
  25.6

  	
   

  	
  25.6

  	
   

  	
  25.6

  
	
  $8.50

  	
  19.3

  	
   

  	
  15.7

  	
   

  	
  10.6

  	
   

  	
  0.0

  
	
  $10.50

  	
  13.5

  	
   

  	
  9.3

  	
   

  	
  4.9

  	
   

  	
  0.0

  
	
  $12.50

  	
  11.3

  	
   

  	
  7.6

  	
   

  	
  3.8

  	
   

  	
  0.0

  
	
  $14.50

  	
  9.7

  	
   

  	
  6.6

  	
   

  	
  3.3

  	
   

  	
  0.0

  
	
  $16.50

  	
  8.5

  	
   

  	
  5.8

  	
   

  	
  2.9

  	
   

  	
  0.0

  
	
  $18.50

  	
  7.6

  	
   

  	
  5.1

  	
   

  	
  2.6

  	
   

  	
  0.0

  
	
  $20.50

  	
  6.9

  	
   

  	
  4.6

  	
   

  	
  2.3

  	
   

  	
  0.0

  
	
  $30.00

  	
  4.7

  	
   

  	
  3.2

  	
   

  	
  1.6

  	
   

  	
  0.0

  
	
  $40.00

  	
  3.5

  	
   

  	
  2.4

  	
   

  	
  1.2

  	
   

  	
  0.0

  
	
  $50.00

  	
  2.8

  	
   

  	
  1.9

  	
   

  	
  1.0

  	
   

  	
  0.0

  



 
















EXHIBIT A


THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, THIS SECURITY MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER AGREES
(1) THAT IT WILL NOT WITHIN THE LATER OF (X) TWO YEARS AFTER THE LATEST ISSUE
DATE OF THE NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED AND (Y)
THREE MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE ISSUER, OFFER, RESELL, PLEDGE OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR
(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT; AND (2) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS
SECURITY WITHIN THE LATER OF (X) TWO YEARS AFTER THE LATEST ISSUE DATE OF THE
NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED AND (Y) THREE
MONTHS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144
ADOPTED UNDER THE SECURITIES ACT) OF THE ISSUER, FURNISH TO THE TRANSFER AGENT
AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY
BE REQUIRED 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.



  
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