EX-4.2






Exhibit 4.2




Execution Version




 




 




FIRST SUPPLEMENTAL INDENTURE

by and between

FERRO CORPORATION,

and

U. S. BANK NATIONAL ASSOCIATION

as Trustee

Dated as of August 19, 2008

Supplemental to Indenture

Dated as of March 5, 2008

6.50% Convertible Senior Notes due 2013




 









 








Table of Contents




ARTICLE 1

Definition




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 1.01

	 	Scope of Supplemental Indenture
	 	 	1	 
	Section 1.02

	 	Definitions
	 	 	2	 






ARTICLE 2

Issue, Description, Execution, Registration

and Exchange of Notes




	 	 	 	 	 	 	 
	Section 2.01

	 	Designation and Amount; Ranking
	 	 	9	 
	Section 2.02

	 	Form of Notes
	 	 	9	 
	Section 2.03

	 	Date and Denomination of Notes; Payments of Interest
	 	 	10	 
	Section 2.04

	 	Payments of Additional Interest
	 	 	10	 
	Section 2.05

	 	Exchange and Registration of Transfer of Notes; Depositary
	 	 	10	 
	Section 2.06

	 	CUSIP Numbers
	 	 	12	 
	Section 2.07

	 	Additional Notes; Repurchases
	 	 	12	 






ARTICLE 3

Particular Covenants of the Company




	 	 	 	 	 	 	 
	Section 3.01

	 	Payment of Principal, Premium and Interest
	 	 	12	 
	Section 3.02

	 	Maintenance of Office or Agency
	 	 	13	 
	Section 3.03

	 	Additional Interest
	 	 	13	 
	Section 3.04

	 	Further Instruments and Acts
	 	 	13	 
	Section 3.05

	 	Reporting Obligations
	 	 	13	 






ARTICLE 4

Defaults and Remedies




	 	 	 	 	 	 	 
	Section 4.01

	 	Events of Default
	 	 	14	 
	Section 4.02

	 	Sole Remedy for Failure to Report
	 	 	15	 
	Section 4.03

	 	Acceleration.
	 	 	16	 
	Section 4.04

	 	Other Remedies.
	 	 	16	 
	Section 4.05

	 	Waiver of Past Defaults.
	 	 	17	 
	Section 4.06

	 	Control by Majority
	 	 	17	 
	Section 4.07

	 	Limitation on Suits.
	 	 	17	 
	Section 4.08

	 	Rights of Holders of Notes to Receive Payment.
	 	 	18	 
	Section 4.09

	 	Collection Suit by Trustee.
	 	 	18	 
	Section 4.10

	 	Trustee May File Proofs of Claim.
	 	 	18	 
	Section 4.11

	 	Priorities.
	 	 	19	 
	Section 4.12

	 	Undertaking for Costs.
	 	 	19	 






ARTICLE 5

Modifications and Amendments




	 	 	 	 	 	 	 
	Section 5.01

	 	Modifications and Amendments Without Consent of Noteholders
	 	 	19	 
	Section 5.02

	 	Modifications and Amendments With Consent of Holders of Notes
	 	 	20	 










 









 





Table of Contents

(continued)




ARTICLE 6

Consolidation, Merger, Sale, Conveyance and Lease




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 6.01

	 	Company May Consolidate, Etc. on Certain Terms
	 	 	21	 






ARTICLE 7

Conversion of Notes




	 	 	 	 	 	 	 
	Section 7.01

	 	Right to Convert
	 	 	21	 
	Section 7.02

	 	Conversion Procedure; Payment Upon Conversion
	 	 	24	 
	Section 7.03

	 	Increase of Conversion Rate Upon Conversion Upon
	 	 	26	 
	Section 7.04

	 	Make-Whole Fundamental Changes
Adjustment of Base Conversion Rate
	 	 	28	 
	Section 7.05

	 	[RESERVED]
	 	 	35	 
	Section 7.06

	 	Effect of Reclassification, Consolidation, Merger
or Sale; Treatment of Reference Property
	 	 	35	 
	Section 7.07

	 	Certain Covenants
	 	 	36	 
	Section 7.08

	 	Responsibility of Trustee
	 	 	37	 
	Section 7.09

	 	Notice to Holders Prior to Certain Actions
	 	 	37	 
	Section 7.10

	 	Shareholder Rights Plans
	 	 	38	 






ARTICLE 8

Repurchase of Notes at Option of Holders




	 	 	 	 	 	 	 
	Section 8.01

	 	Repurchase at Option of Holders upon a Fundamental Change
	 	 	39	 
	Section 8.02

	 	Withdrawal of a Fundamental Change Repurchase Notice
	 	 	41	 
	Section 8.03

	 	Deposit of Fundamental Change Repurchase Price
	 	 	42	 






ARTICLE 9

Subsidiary Guarantees




	 	 	 	 	 	 	 
	Section 9.01

	 	Future Subsidiary Guarantors
	 	 	42	 
	Section 9.02

	 	Mergers, Etc:
	 	 	42	 
	Section 9.03

	 	Release
	 	 	43	 






ARTICLE 10

Defeasance and Discharge Section




	 	 	 	 	 	 	 
	Section 10.01

	 	No Defeasance
	 	 	43	 
	Section 10.02

	 	Discharge of the Indenture.
	 	 	43	 






ARTICLE 11

No Personal Liability of Directors, Officers, Employees and Stockholders




	 	 	 	 	 	 	 
	Section 11.01

	 	No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	43	 






ARTICLE 12

Sinking Funds




	 	 	 	 	 	 	 
	Section 12.01

	 	No Sinking Funds.
	 	 	44	 






ii




 









 





Table of Contents

(continued)




ARTICLE 13

Miscellaneous Provisions




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	Section 13.01

	 	Ratification and Incorporation of Base Indenture
	 	 	44	 
	Section 13.02

	 	Governing Law
	 	 	44	 
	Section 13.03

	 	No Security Interest Created
	 	 	44	 
	Section 13.04

	 	Trust Indenture Act
	 	 	44	 
	Section 13.05

	 	Benefits of Indenture
	 	 	44	 
	Section 13.06

	 	Calculations
	 	 	44	 
	Section 13.07

	 	Table of Contents, Headings, Etc.
	 	 	45	 
	Section 13.08

	 	Execution in Counterparts
	 	 	45	 
	Section 13.09

	 	Severability
	 	 	45	 






EXHIBITS




	 	 	 	 	 
	EXHIBIT A

	 	Form of Note
	 	A-1
	EXHIBIT B

	 	Form of Notice of Conversion
	 	B-1
	EXHIBIT C

	 	Form of Fundamental Change Repurchase Notice
	 	C-1
	EXHIBIT D

	 	Form of Assignment and Transfer
	 	D-1
	EXHIBIT E

	 	Form of Subsidiary Guarantee
	 	E-1






iii





 












 





FIRST SUPPLEMENTAL INDENTURE




     THIS FIRST SUPPLEMENTAL INDENTURE dated as of August 19, 2008 (this “Supplemental Indenture”),
is entered into by and between Ferro Corporation, an Ohio corporation (the “Company”), and U.S.
Bank National Association, a national banking association organized under the laws of the United
States of America, as trustee (the “Trustee”).



RECITALS




     A. The Company and the Trustee entered into that certain Indenture, dated as of March 5, 2008
(the “Base Indenture”), pursuant to which the Company may from time to time issue its Securities.



     B. Section 901(6) of the Base Indenture provides that the Company, when authorized by a
resolution of the Board of Directors of the Company, and the Trustee may, without the consent of
the holders of the Securities, enter into a supplemental indenture to establish the form or terms
of Securities of any series as permitted by Sections 201 and 301 of the Base Indenture.



     C. The Company has duly authorized the issue of 6.50% Convertible Senior Notes due 2013 (as
they may be issued from time to time under this Supplemental Indenture, including any additional
Notes, the “Notes”), and in connection therewith, the Company has duly determined to make, execute
and deliver this Supplemental Indenture to set forth the terms and provisions of the Notes as
required by the Base Indenture.



     D. The Company has determined that this Supplemental Indenture is authorized or permitted by
Section 901 of the Base Indenture and has delivered to the Trustee an Opinion of Counsel to the
effect that all conditions precedent provided for in the Base Indenture to the execution and
delivery of this Supplemental Indenture have been complied with.



     E. The Form of Note, the Trustee’s Certificate of Authentication to be borne by each Note, the
Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of
Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided for.



     F. All things necessary to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee or a duly authorized Authenticating Agent, as provided in the Base
Indenture, the valid and legally binding obligations of the Company have been done.



     G. All things necessary to make this Supplemental Indenture a valid and legally binding
indenture and agreement according to its terms, and a valid and legally binding amendment of, and
supplement to, the Base Indenture have been done.



     NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, the
parties hereto agree, subject to the terms and conditions hereinafter set forth, as follows for the
benefit of the Trustee and the Noteholders:



ARTICLE 1

Definitions




     Section 1.01 Scope of Supplemental Indenture. The changes, modifications and supplements to
the Base Indenture affected by this Supplemental Indenture shall be applicable only with respect
to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and shall
not apply to any other



 









 







Securities that may be issued under the Base Indenture unless a supplemental
indenture with respect to such other Securities specifically incorporates such changes,
modifications and supplements. The provisions of this Supplemental Indenture shall supersede any
corresponding or inconsistent provisions in the Base Indenture.



     Section 1.02 Definitions. The terms defined in this Section 1.02 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Supplemental
Indenture and for purposes of the Base Indenture as it relates to the Notes shall have the
respective meanings specified in this Section 1.02. Except as otherwise provided in this
Supplemental Indenture, all words, terms and phrases defined in the Base Indenture (but not
otherwise defined herein) shall have the same meaning herein as in the Base Indenture. All other
terms used in this Supplemental Indenture that are defined in the Trust Indenture Act or that are
by reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of
similar import refer to this Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article include the plural as well as the
singular.



     “Additional Interest” shall have the meaning specified in Section 4.02.



     “Additional Shares” shall have the meaning specified in Section 7.03(a).



     “Applicable Conversion Rate” means, with respect to any Note being converted, the sum of the
Daily Conversion Rate Fractions for each Trading Day during the 20 Trading Days in the relevant
Cash Settlement Averaging Period for such Note.



     “Applicable Daily Conversion Rate” on any day will be (a) if the Last Reported Sale Price of
the Common Stock on the Trading Day immediately preceding such day is less than or equal to the
Base Conversion Price, the Base Conversion Rate and (b) if such Last Reported Sale Price of the
Common Stock is greater than the Base Conversion Price, the Base Conversion Rate plus a number of
shares of Common Stock equal to the product of (i) the Incremental Share Factor and (ii) (A) the
difference between such Last Reported Sale Price and the Base Conversion Price divided by (B) such
Last Reported Sale Price.



     “Applicable Stock Price” per share of Common Stock on any Trading Day means the per share
volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg (or any
successor service) page FOE.N <Equity> AQR (or any equivalent successor page) in respect of
the period from the scheduled open of trading on the principal U.S. national or regional securities
exchange or quotation system on which the Common Stock is traded on such Trading Day, or, if such
volume-weighted average price is not available, the Applicable Stock Price means the
volume-weighted average price per share of Common Stock on such day as determined by a nationally
recognized investment banking firm retained for this purpose by the Company. The Applicable Stock
Price of other securities that constitute Reference Property and that are traded on a National
Securities Exchange shall be determined in a manner substantially equivalent to the foregoing as
determined in good faith by the Company.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Base Conversion Price” is a dollar amount (initially $32.336) equal to $1,000 divided by the
Base Conversion Rate.



2









 





     “Base Conversion Rate” is initially 30.9253 shares of Common Stock, subject to adjustment as
set forth herein.



     “Base Dividend Amount” means $0.145 in the aggregate in any single quarterly period per share
of Common Stock outstanding, subject to adjustment. The Base Dividend Amount is subject to
adjustment under the same circumstances under which the Base Conversion rate is subject to
adjustment; provided, however, that no adjustment will be made to the Base Dividend Amount for any
adjustment made to the Base Conversion Rate pursuant to 7.04(d).



     “Base Indenture” shall have the meaning set forth in Recital A.



     “Bid Solicitation Agent” means the agent of the Company appointed to obtain quotations for the
Notes as set forth under the definition of Trading Price, which agent shall at no time be an
Affiliate of the Company. The Company may, from time to time, change the Bid Solicitation Agent.



     “Cash Settlement Averaging Period” with respect to any Note being converted means the 20
consecutive Trading Day period beginning on and including the second Trading Day after the
Conversion Date, except that with respect to any Conversion Date that is on or after the 24th
Scheduled Trading Day immediately preceding the Maturity Date, the Cash Settlement Averaging period
means the 20 consecutive Trading Days beginning on and including the 22nd Scheduled Trading Day
prior to the Maturity Date.



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



     “Common Stock” means the common stock, par value $0.01 per share, of the Company, which stock
is listed on the New York Stock Exchange at the date of this Supplemental Indenture, or shares of
any class or classes resulting from any reclassification or reclassifications thereof and that have
no preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that are not subject to
redemption by the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in the proportion that
the total number of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such reclassifications.



     “Company” means Ferro Corporation, an Ohio corporation, and subject to the provisions of
Article 6 hereof and Article V of the Base Indenture, shall include its successors and assigns.



     “Conversion Agent” shall have the meaning specified in Section 3.02.



     “Conversion Date” shall have the meaning specified in Section 7.02(d).



     “Conversion Obligation” shall have the meaning specified in Section 7.01(a).



     “Credit Agreement” means the Amended and Restated Credit Agreement, dated June 8, 2007, among
the Company, certain of its subsidiaries, Credit Suisse Securities (USA) LLC, as term loan
administrative agent, National City Bank, as revolving loan administrative agent and collateral
agent, KeyBank National Association, as documentation agent, Citigroup Global Markets, Inc., as
syndication agent, and various financial institutions as lenders, providing for up to $665 million
of revolving credit and term loan borrowings, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.



3









 





     “Custodian” means U. S. Bank National Association, as custodian for the Depositary, with
respect to the Notes in global form, or any successor entity thereto.



     The “Daily Conversion Rate Fraction” for each Trading Day during the relevant Cash Settlement
Averaging Period shall be determined as follows:



     (a) if the Applicable Stock Price of the Common Stock on such Trading Day is less than or
equal to the Base Conversion Price, the Daily Conversion Rate Fraction for such Trading Day shall
be equal to 1/20th of the Base Conversion Rate; and



     (b) if the Applicable Stock Price of the Common Stock on such Trading Day is greater than the
Base Conversion Price, the Daily Conversion Rate Fraction for such Trading Day shall be equal to
1/20th of the following:



	 	 	 	 	 
	 
 
 

Base Conversion Rate +
	 	Applicable Stock Price

of Common Stock on such

Trading Day

— Base Conversion Price
	 	 
 
 

x Incremental Share Factor
	 
	 	 	 	 
	 
	 	Applicable Stock Price

of Common Stock on such

Trading Day	 	 






     Notwithstanding the foregoing, if the Daily Conversion Rate Fraction for any Trading Day in
the relevant Cash Settlement Averaging Period would otherwise be greater than the Daily Share Cap,
the Daily Conversion Rate Fraction for such Trading Day shall be equal to the Daily Share Cap.



     “Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the Cash
Settlement Averaging Period, the product of (a) the Daily Conversion Rate Fraction for such day and
(b) the Applicable Stock Price of the Common Stock on such day. For purposes of the foregoing, the
Daily Conversion Value of Reference Property will be determined by reference to (a) in the case of
Reference Property or part of Reference Property that is traded on a National Securities Exchange,
the Applicable Stock Price of such security or common stock, (b) in the case of any other property
other than cash, the value thereof as determined by two independent nationally recognized
investment banks as of the effective date of the transaction and (c) in the case of cash, 100% of
the amount thereof.



     “Daily Settlement Amount” means for each of the 20 consecutive Trading Days during the Cash
Settlement Averaging Period (1) cash equal to $50 or, if less, the Daily Conversion Value; and (2)
to the extent the Daily Conversion Value exceeds $50, the Daily Share Amount.



     “Daily Share Amount” means a number of shares of Common Stock equal to (A) the difference
between the Daily Conversion Value and $50, divided by (B) the Applicable Stock Price of the Common
Stock for such day.



     “Daily Share Cap” means, in respect of each $1,000 principal amount of Notes, 1/20th of
49.4805 shares of Common Stock, subject to adjustment in the same manner as the Base Conversion
Rate as set forth herein.



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.05 hereof, substantially in the form of Exhibit A hereto,
except that such Note shall not bear the Global Note Legend and shall not have the Schedule of
Exchanges of Interests in the Global Note attached hereto.



4









 





     “Designated Institution” shall have the meaning specified in Section 7.02(l).



     “Distributed Property” shall have the meaning specified in Section 7.04(c).



     “Effective Date” means, with respect to a Make-Whole Fundamental Change, a Merger Event, a
consolidation, merger, share exchange, sale of all or substantially all of the Company’s assets or
other similar transaction, the date on which such event or transaction becomes effective.



     “Ex-Dividend Date” means, with respect to any issuance, dividend or distribution in which the
holders of Common Stock (or other security) have the right to receive any cash, securities or other
property, the first date on which the shares of the Common Stock (or other 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.



     “Fundamental Change” means the occurrence after the original issuance of the Notes of any of
the following events:



     (a) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act becomes
the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of
shares of the Common Stock representing more than 50% of the voting power of the Common Stock
entitled to vote generally in the election of directors and (i) files a Schedule 13D or Schedule TO
or any other schedule, form or report under the Exchange Act disclosing such beneficial ownership
or (ii) the Company otherwise becomes aware of any such person or group; provided that this clause
(a) shall not apply to a transaction covered in clause (d) below, including any exception thereto;
or



     (b) the Common Stock or shares of common stock, depositary receipts or other certificates
representing common equity interests into which the Notes are then convertible cease to be listed
for trading on a National Securities Exchange for a period of 20 consecutive Trading Days; or



     (c) the first day on which a majority of the members of the board of directors of the Company
does not consist of continuing directors; or



     (d) a consolidation, merger or binding share exchange to which the Company is a party, or any
conveyance, transfer, sale, lease or other disposition in a single transaction or a series of
related transactions of all or substantially all of the Company’s properties and assets other than
(i) any transaction that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Company’s capital stock and pursuant to which holders of
the Company’s capital stock immediately prior to the transaction have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all shares of capital stock
entitled to vote generally in elections of directors of the continuing or surviving or successor
Person (or any parent thereof) immediately after giving effect to such transaction or (ii) which is
effected solely to change the Company’s jurisdiction of incorporation and results in a
reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares
of common stock of the surviving Person; or



     (e) the Company’s shareholders approve any plan or proposal for the Company’s liquidation or
dissolution.



     For purposes of this Fundamental Change definition: (a) “board of directors” means the board
of directors or other governing body charged with the ultimate management of any person; (b)
“continuing director” means a director who either was a member of the board of directors of the
Company on the date hereof, or who becomes a member of the board of directors subsequent to that
date



5









 







and whose initial election, appointment or nomination for election by the Company’s
shareholders is duly approved by a majority of the continuing directors on the board of directors
of the Company at the time of such approval, either by a specific vote or by approval of the proxy
statement issued by the Company on behalf of the board of directors of the Company in which such
individual is named as a nominee for director; and (c) “person” includes any syndicate or group
that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.



     Notwithstanding the foregoing, a Fundamental Change will be deemed not to have occurred if 90%
or more of the consideration in the transaction or transactions (other than cash payments for
fractional shares and cash payments made in respect of dissenters’ appraisal rights) which
otherwise would constitute a Fundamental Change under clause (d) above consists of shares of common
stock, depositary receipts or other certificates representing common equity interests traded or to
be traded immediately following such transaction on a National Securities Exchange and, as a result
of the transaction or transactions, the Notes become convertible, upon satisfaction of the
conditions to conversion, into such common stock, depositary receipts or other certificates
representing common equity interests (and any rights attached thereto) and other applicable
consideration.



     “Fundamental Change Company Notice” shall have the meaning specified in Section 8.01(b).



     “Fundamental Change Expiration Time” shall have the meaning specified in Section 8.01(b).



     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 8.01(a).



     “Fundamental Change Repurchase Notice” shall have the meaning specified in Section 8.01(a).



     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 8.01(a).



     “Global Note” shall have the meaning specified in Section 2.05(b).



     “Incremental Share Factor” means initially 18.5552 shares of Common Stock, subject to the same
proportional adjustment as the Base Conversion Rate as set forth herein.



     “Indenture” means the Base Indenture, as amended and supplemented by this Supplemental
Indenture and, if further amended or supplemented as herein provided, as so amended or
supplemented.



     “interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes, including (unless context otherwise requires) Defaulted Interest, if any, and
Additional Interest, if any.



     “Interest Payment Date” means each February 15 and August 15 of each year, beginning on
February 15, 2009.



     “Interest Record Date,” with respect to any Interest Payment Date, shall mean the February 1
or August 1 (whether or not such day is a Business Day) immediately preceding the applicable
February 15 or August 15 Interest Payment Date, respectively.



     “Last Reported Sale Price” of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and the average ask prices) on that date as
reported in composite transactions for the principal U.S. national or regional securities exchange
on which the



6









 







Common Stock is listed for trading. If the Common Stock is not listed for trading on
a U.S. national or regional securities exchange on the relevant date, then the “Last Reported Sale
Price” will be the last quoted bid price for the Common Stock in the over-the-counter market on the
relevant date as reported by the National Quotation Bureau or similar organization. If the Common
Stock is not so quoted, the “Last Reported Sale Price” will be the average of the mid-point of the
last bid and ask prices for the Common Stock on the relevant date from each of at least three
nationally recognized independent investment banking firms selected by the Company for this
purpose.



     “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change as described in clause (a) or clause (d) of the definition of Fundamental Change.



     “Market Disruption Event” means (a) failure by the principal U.S. national or regional
securities exchange or quotation system on which the Common Stock trades or is quoted to open for
trading during its regular trading session or (b) the occurrence or existence on any Trading Day
for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any
options, contracts or future contracts relating to the Common Stock for an aggregate period in
excess of one half hour.



     “Maturity Date” means August 15, 2013.



     “Merger Event” shall have the meaning specified in Section 7.06.



     “National Securities Exchange” means a U.S. national securities exchange or quotation system,
including the New York Stock Exchange, the NASDAQ Global Select Market and the NASDAQ Global
Market.



     “Noteholder” or “Holder,” as applied to any Note, or other similar terms (but excluding the
term “beneficial holder”), shall mean any person in whose name at the time a particular Note is
registered on the Note Register.



     “Note Register” shall have the meaning specified in Section 2.05(a).



     “Note Registrar” shall have the meaning specified in Section 2.05(a).



     “Notes” shall have the meaning specified in Recital C.



     “Notice of Conversion” shall have the meaning specified in Section 7.02(b).



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



     “Paying Agent” shall have the meaning specified in Section 3.02.



     “Record Date” shall have the meaning specified in Section 7.04(f).



     “Reference Property” shall have the meaning specified in Section 7.06(a).



     “Rights” shall have the meaning specified in Section 7.10.



     “Scheduled Trading Day” means any day that is scheduled to be a Trading Day.



7









 





     “Senior Credit Facilities” means, one or more debt facilities (including, without limitation,
the Credit Agreement) or commercial paper facilities, in each case, with banks or other
institutional lenders providing for up to $765 million of revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables) or letters of credit,
in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.



     “Settlement Amount” shall have the meaning specified in Section 7.02(a).



     “Shareholder Rights Plan” shall have the meaning specified in Section 7.10(a).



     “Significant Subsidiary” shall have the meaning specified in Regulation S-X under the
Securities Act.



     “Spin-Off” shall have the meaning specified in Section 7.04(c).



     “Stock Price” means (a) in the case of a Make-Whole Fundamental Change in which holders of
Common Stock receive solely cash consideration in connection with such Make-Whole Fundamental
Change, the amount of cash paid per share of the Common Stock and (b) in the case of all other
Make-Whole Fundamental Changes, the average of the Last Reported Sale Prices per share of Common
Stock over the period of five consecutive Trading Days ending on the Trading Day immediately
preceding the Effective Date of such Make-Whole Fundamental Change. The Board of Directors will
make appropriate adjustments, in its good faith determination, to account for any adjustment to the
Base Conversion Rate that becomes effective, or any event requiring an adjustment to the Base
Conversion Rate where the Ex-Dividend Date of the event occurs, during such five consecutive
Trading Days.



     “Subsidiary Guarantors” means any other Subsidiary of the Company that provides a Guarantee of
the Notes in accordance with Section 9.01 hereof and their successors.



     “Trading Day” means a day during which trading in the Common Stock generally occurs on the
principal U.S. national or regional securities exchange on which the Common Stock is listed for
trading and during which there is no Market Disruption Event; provided that if the Common Stock is
not listed for trading on a U.S. national or regional securities exchange or quotation system,
“Trading Day” will mean a Business Day.



     “Trading Price” with respect to the Notes, on any date of determination means the average of
the secondary market bid quotations obtained by the Bid Solicitation Agent for $5.0 million
aggregate principal amount of the Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities dealers selected by the
Company, which may include any of the Underwriters; provided that if three such bids cannot
reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably be obtained by the
Bid Solicitation Agent, that one bid shall be used.



     “Trigger Event” shall have the meaning specified in Section 7.10.



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Supplemental Indenture, except as provided in Section 7.06; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the
term “Trust Indenture Act” shall mean, to the extent required by such amendment, the Trust
Indenture Act of 1939, as so amended.



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     “Trustee” means the Person named as the “Trustee” in the first paragraph of this Supplemental
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Supplemental Indenture, and thereafter “Trustee” shall mean or include each Person who is then
a Trustee hereunder.



     “Underwriters” means Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., J.P.
Morgan Securities Inc., Fifth Third Securities, Inc., KeyBanc Capital Markets Inc., Morgan Stanley
& Co. Incorporated, NatCity Investments, Inc., Piper Jaffray & Co. and Greenwich Capital Markets,
Inc.



ARTICLE 2

Issue, Description, Execution, Registration

and Exchange of Notes




     Section 2.01 Designation and Amount; Ranking. The Notes shall be designated as the “6.50%
Convertible Senior Notes due 2013” and shall constitute a series of Securities under the Base
Indenture. The aggregate principal amount of Notes that may be authenticated and delivered under
this Supplemental Indenture is initially limited to $172,500,000 aggregate principal amount
(including up to $22,500,000 of Notes that may be issued upon exercise of the option to purchase
additional Notes granted to the Underwriters with respect to the initial sale of the Notes),
subject to Section 2.07 and except for Notes authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of other Notes pursuant to this Supplemental Indenture
or the Base Indenture.



     Section 2.02 Form of Notes. The Notes and the Trustee’s Certificate of Authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which
are incorporated in and made a part of this Supplemental Indenture.



     Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Supplemental Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any U.S. national or regional
securities exchange or automated quotation system on which the Notes may be listed or designated
for issuance, or to conform to usage or to indicate any special limitations or restrictions to
which any particular Notes are subject.



     The Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global
Note to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the holder of such Notes in accordance with this
Supplemental Indenture. Payment of principal, accrued and unpaid interest and premium, if any
(including any Fundamental Change Repurchase Price, Repurchase Price), on the Global Note shall be
made to the holder of such Note on the date of payment, unless a record date or other means of
determining holders eligible to receive payment is provided for herein.



     Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples



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thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.



     The Person in whose name any Note (or its predecessor security) is registered on the Note
Register at the close of business on any Interest Record Date with respect to any Interest Payment
Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest
shall be payable at the office or agency of the Company maintained by the Company for such purposes
in the United States, which shall initially be the office of the Trustee at 1350 Euclid Avenue,
Cleveland, Ohio 44115 and its agency in New York, New York. The Company shall pay interest (a) on
any Notes in certificated form by check mailed to the address of the Person entitled thereto as it
appears in the Note Register (or upon written application by such Person to the Trustee and Paying
Agent (if different from the Trustee) not later than the relevant Interest Record Date, by wire
transfer in immediately available funds to such Person’s account within the United States, if such
Person is entitled to interest on an aggregate principal amount of Notes in excess of $1,000,000,
which application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent
to the contrary) or (b) on any Global Note by wire transfer of immediately available funds to the
account of the Depositary or its nominee.



     Section 2.04 Payments of Additional Interest. If required by Section 4.02, each Note shall
bear Additional Interest in the manner set forth herein. Whenever in this Supplemental Indenture
there is mentioned, in any context, the payment of the principal of, premium, if any, or interest
on, or in respect of, any Note, such mention shall be deemed to include mention of the payment of
“Additional Interest” provided for in Section 4.02 to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof and express mention of the payment of
Additional Interest (if applicable) in any provisions hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is not made.



     Section 2.05 Exchange and Registration of Transfer of Notes; Depositary.



     (a) The Company shall cause to be kept at the corporate trust office a register (the register
maintained in such office or in any other office or agency of the Company designated pursuant to
Section 3.02 being herein sometimes collectively referred to as the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and transfers of Notes. Such register shall be in written form or in any
form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby appointed “Note Registrar” and shall constitute a Security Registrar for the purpose of
registering Notes and transfers of Notes as herein provided. The Company may appoint one or more
co-registrars in accordance with Section 3.02.



     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 3.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that
the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.



     None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article 8 hereof.



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



     (b) The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to the Global
Notes. Except as provided below and except as otherwise required by law, all Notes shall be
represented by one or more Notes in the form of Global Securities (each, a “Global Note”)
registered in the name of the Depositary or the nominee of the Depositary. Initially, the Global
Notes shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of
the Depositary, and deposited with the Trustee as Custodian for the Depositary. The transfer and
exchange of beneficial interests in a Global Note that does not involve the issuance of a
Definitive Note, shall be effected through the Depositary in accordance with this Supplemental
Indenture and the procedures of the Depositary therefor.



     Notwithstanding any other provisions of the Indenture (other than the provisions set forth in
this Section 2.05(b)), a Global Note may not be transferred as a whole or in part except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.



     If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within 90 calendar days, (ii) the Depositary ceases to be registered as a clearing agency under the
Exchange Act and a successor depositary is not appointed within 90 calendar days or (iii) an Event
of Default in respect of the Notes has occurred and is continuing, and any Noteholder has requested
that the Notes be issued in definitive form in exchange for a Global Note, the Company will
execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the
authentication and delivery of Notes, will authenticate and deliver Notes in definitive form to
each person that the Depositary identifies as a beneficial owner of the related Notes (or a portion
thereof) in an aggregate principal amount equal to the principal amount of such Global Note, in
exchange for such Global Note, and upon delivery of the Global Note to the Trustee such Global Note
shall be canceled.



     Definitive Notes issued in exchange for all or a part of a Global Note pursuant to this
Section 2.05(b) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Definitive
Notes to the Persons in whose names such Definitive Notes are so registered.



     At such time as all interests in a Global Note have been converted, canceled, redeemed,
repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in a Global Note is
exchanged for Definitive Notes, converted, canceled, repurchased or transferred to a transferee who
receives Definitive Notes therefor or any Definitive Note is exchanged or transferred for part of
such Global Note, the principal amount of such Global Note shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Custodian, be appropriately
reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by
the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or
increase.



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     None of the Company, the Trustee, nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



     Section 2.06 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to
Noteholders as a convenience to holders of the Notes; provided, that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Notes or
on such notice and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



     Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, reopen this Supplemental Indenture and issue
additional Notes hereunder with the same terms and with the same CUSIP number as the Notes
initially issued hereunder in an unlimited aggregate principal amount, which will form the same
series with the Notes initially issued hereunder; provided that no such additional Notes will be
treated as part of the same series as the Notes unless such additional Notes will be part of the
same issue as the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to
the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company
Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion
of Counsel to cover such matters required by Section 102 of the Base Indenture. The Company may
also from time to time repurchase the Notes in open market purchases or negotiated transactions
without prior notice to Noteholders.



ARTICLE 3

Particular Covenants of the Company




     Section 3.01 Payment of Principal, Premium and Interest. The Company covenants and agrees
that it will cause to be paid the principal of and premium, if any (including the Fundamental
Change Repurchase Price), and accrued and unpaid interest on each of the Notes at the places, at
the respective times and in the manner provided herein and in the Notes.



     Section 3.02 Maintenance of Office or Agency. The Company will maintain in the United States,
an office or agency of any Person authorized by the Company to pay the principal of or premium and
interest on the Notes on behalf of the Company, where the Notes may be surrendered for registration
of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for
conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of
the Notes and the Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or agency within five (5)
calendar days of such change. 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 or the office
or agency of the Trustee.



     The Company may also from time to time designate as co-registrars one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the United
States, for such purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or
agencies, as applicable.



12









 





     The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian, Bid Solicitation Agent and Conversion Agent and the corporate trust office and the
office or agency of the Trustee each shall be considered as one such office or agency of the
Company for each of the aforesaid purposes; provided that the Trustee may appoint an agent,
reasonably acceptable to the Company, to perform the duties of the Bid Solicitation Agent and
Conversion Agent.



     Section 3.03 Additional Interest. If Additional Interest is payable by the Company, the
Company shall deliver to the Trustee, on or before the Interest Record Date preceding the date that
such Additional Interest is payable, an Officers’ Certificate to that effect stating (a) the amount
of such Additional Interest that is payable and (b) the date on which such interest is payable.
Unless and until the Trustee has received at the corporate trust office such a certificate, the
Trustee may assume without inquiry that no such Additional Interest is payable.



     Section 3.04 Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Supplemental Indenture.



     Section 3.05 Reporting Obligations. Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with
the Commission (unless the Commission will not accept such a filing) within the time periods
specified in the Exchange Act and, within 15 days of filing, or attempting to file, the same with
the Commission, furnish to the Trustee and the holders of the outstanding Notes:



     (a) all quarterly and annual financial and other information with respect to the Company and
its subsidiaries that would be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Company were required to file such forms, including a “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and, with respect to the annual
information only, a report thereon by the Company’s certified independent accountants; and



     (b) all current reports that would be required to be filed with the Commission on Form 8-K if
the Company were required to file such reports.



     So long as the Company is required to file periodic reports under Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, the Company’s obligation to deliver the
information referred to above shall be deemed satisfied upon the filing of such information in the
EDGAR system and the giving of notice to the Trustee as to the public availability of such
information from such source.



ARTICLE 4

Defaults and Remedies




     With respect to the Notes, Article Five of the Base Indenture shall be replaced in its
entirety with the following:



     Section 4.01 Events of Default.



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     Each of the following is an “Event of Default”:



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



     (b) default by the Company in the payment of any interest under the Notes, which default
continues for 30 days;



     (c) failure by the Company to issue a Fundamental Change Company Notice when such notice
becomes due in accordance with Section 8.01(b);



     (d) failure by the Company to deliver when due of all cash and any shares of Common Stock or
other consideration payable upon conversion with respect to the Notes, which failure continues for
10 days;



     (e) failure by the Company to comply with Section 6.01 hereof upon the Company’s receipt of
written notice of such default from the Trustee or from Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, and the failure to cure (or obtain a waiver of)
such default within 30 days after receipt of such notice;



     (f) failure by the Company to comply with or to perform any of its other agreements in the
Notes or the Indenture upon receipt of notice of such default from the Trustee or from Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding, and the failure to
cure (or obtain a waiver of) such default within 60 days after receipt of such notice;



     (g) a default under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed by the Company or
any of its Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Subsidiaries), which default is caused by a failure to pay principal of or premium or interest on
such indebtedness prior to the expiration of any grace period provided in such indebtedness,
including any extension thereof (a “payment default”), or results in the acceleration of such
indebtedness prior to its stated maturity and, in each case, the principal amount of any such
indebtedness, together with the principal amount of any other such indebtedness under which there
has been a payment default or the maturity of which has been so accelerated, aggregates in excess
of $25.0 million and provided, that if any such default is cured or waived or any such acceleration
rescinded, or such indebtedness is repaid, within a period of 10 days from the continuation of such
default beyond the applicable grace period or the occurrence of such acceleration, as the case may
be, such Event of Default and any consequential acceleration of the Notes shall be automatically
rescinded, so long as such rescission does not conflict with any judgment or decree;



     (h) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
Bankruptcy Law:




     (i) commences a voluntary case,




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




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




     (iv) makes a general assignment for the benefit of its creditors, or



14









 





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




     (i) is for relief against the Company or any of its Significant Subsidiaries;




     (ii) appoints a custodian of the Company or any of its Significant Subsidiaries or for
all or substantially all of the property of the Company or any of its Significant
Subsidiaries; or




     (iii) orders the liquidation of the Company or any of its Significant Subsidiaries;



and the order or decree remains unstayed and in effect for 60 consecutive days.



     The Company is required to notify the Trustee in writing within five business days upon
becoming aware of the occurrence of any Event of Default under this Supplemental Indenture known to
the Company. The Trustee shall not be deemed to have notice or be charged with knowledge of any
Event of Default unless written notice of such Event of Default from the Company or any Holder is
received by the Trustee at its corporate trust office, and such notice references the Notes and
this Supplemental Indenture. 



     Section 4.02 Sole Remedy for Failure to Report. Notwithstanding any other provision of the
Indenture, if the Company so elects, the sole remedy for an Event of Default relating to the
failure to comply with the reporting obligations under Section 3.05 will, for the period beginning
on the 91st calendar day after the written notice of the occurrence of such failure to report from
the Trustee or Holders of 25% of the outstanding principal amount of the Notes, consist exclusively
of the right to receive additional interest on the Notes at a rate equal to 0.25% per annum of the
principal amount of the Notes (the “Additional Interest”). This Additional Interest will be
payable in the same manner and on the same dates as the stated interest payable on the Notes. If
the Company so elects, this Additional Interest will accrue on all outstanding Notes from and
including the 91st day following the date of such written notice of the failure to comply with
Section 3.05 to but not including the date on which the Event of Default relating to the reporting
obligations as set forth in Section 3.05 shall have been cured or waived. On the 180th calendar
day after the commencement of such Additional Interest (if such violation is not cured or waived
prior to such 180th calendar day), the Notes will be subject to acceleration upon written notice
from the Trustee or holders of 25% of the outstanding principal amount of the Notes.



     In order to exercise the extension right and elect to pay the Additional Interest as the sole
remedy following the occurrence of any Event of Default relating to the failure to comply with
Section 3.06 in accordance with the preceding paragraph, the Company must notify all Noteholders
and the Trustee and Paying Agent of such election prior to the close of business on the 91st
calendar day after the written notice to the Company of such failure to report (or, if such date is
not a Business Day, on the first Business Day thereafter). Upon the Company’s failure to timely
give such notice, the Notes will be subject to acceleration as provided above.



     Notwithstanding the preceding paragraph, if an Event of Default occurs under any other series
of the Company’s debt securities issued subsequent to the issuance of the Notes resulting from its
failure to comply with such reporting obligations and such Event of Default is not subject to
extension on terms similar to the above and results in the principal amount of such debt securities
becoming due and payable, then the extension right will no longer apply and the Notes will be
subject to acceleration as provided above.



     For the avoidance of doubt, the provisions of this Section 4.02 will not affect the rights of
Noteholders in the event of the occurrence of any other Event of Default.



15









 





Section 4.03 Acceleration.




     In the case of an Event of Default specified in clause (h) or (i) of Section 4.01 hereof, with
respect to the Company or any Significant Subsidiary, the principal amount of all outstanding Notes
and any accrued interest thereon through the date of such event will become due and payable
immediately without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all outstanding Notes and any accrued interest thereon through the
date of such declaration to be due and payable immediately.



     Upon any such declaration, the Notes shall become due and payable immediately.



     The holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of all of the Noteholders, rescind an acceleration or
waive any existing default or Event of Default and its consequences under this Indenture except a
continuing default or Event of Default in the payment of interest or premium, if any, on, or the
principal of, the Notes.



Section 4.04 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.



     The Trustee may commence and maintain a suit or other proceeding to collect any indebtedness or
enforce its rights or the rights of the Holders even if it does not possess any of the Notes or
does not produce any of them in the proceeding, but will be under no obligation to exercise any of
the rights or powers under the Indenture at the request or direction of any of the Holders of Notes
unless such Holders have offered to the Trustee reasonable indemnity or security against any loss,
liability or expense. A delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the
extent permitted by law.



Section 4.05 Waiver of Past Defaults.




     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the holders of all of the Notes waive an existing
default or Event of Default and its consequences hereunder, except



     (a) a continuing default or Event of Default in the payment of the principal of, premium, if
any, or interest on, the Notes (including in connection with an offer to purchase); or



     (b) a continuing default or Event of Default in the delivery of cash, Common Stock or other
consideration due upon conversion of any Note.



     Section 4.06 Control by Majority.



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



16









 





Section 4.07 Limitation on Suits.




     Except to enforce the right to receive payment of principal, premium, if any, or interest when
due, no Holder of a Note may institute any suit, action, or proceeding for the enforcement of the
Supplemental Indenture and applicable provisions of the Base Indenture for execution of any trust
under this Supplemental Indenture, and may not pursue any remedy against the Trustee with respect
to this Supplemental Indenture or the Notes unless:




     (i) such Holder has previously given the Trustee written notice that an Event of
Default is continuing;




     (ii) Holders of at least 25% in aggregate principal amount of the then outstanding
Notes have requested in writing the Trustee to pursue the remedy;




     (iii) such Noteholders have offered the Trustee reasonable security or indemnity
against any loss, liability or expense;




     (iv) the Trustee has not complied with such written request within 15 days after the
receipt of the request and the offer of security or indemnity; and




     (v) Holders of a majority in aggregate principal amount of the then outstanding Notes
have not given the Trustee a direction or instruction inconsistent with such request within
such 15-day period.



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



Section 4.08 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.



Section 4.09 Collection Suit by Trustee.




     If an Event of Default specified in Section 4.01(a) or (b) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and 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, and after provision for such costs and expenses, such trust shall be for the ratable
benefit of the Holders in respect of which such judgment has been recovered.



Section 4.10 Trustee May File Proofs of Claim.




     In case of any judicial proceeding relative to the Company (or any other obligor upon the
Notes), 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 TIA in order to
have claims of



17









 







the Noteholders 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 Noteholders, 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 607 of the
Base Indenture.



     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 Notes 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 4.11 Priorities.




     If the Trustee collects any money pursuant to this Article 4, it shall pay out the money in
the following order:




     First: to the Trustee, its agents and attorneys for amounts due under Section 607 of
the Base Indenture hereof, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of collection;




     Second: to holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to holders of Notes
pursuant to this Section 4.11.



Section 4.12 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 4.12 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 4.08 hereof, or a suit by holders of more
than 10% in aggregate principal amount of the then outstanding Notes.



18









 





ARTICLE 5

Modifications and Amendments




     Section 5.01 Modifications and Amendments Without Consent of Noteholders.



     With respect to the Notes, the numbered paragraphs (1) through (12) in Section 901 of the Base
Indenture shall be replaced in their entirety with the following:



     (a) to evidence a successor to the Company and the assumption by that successor of the
Company’s obligations under the Indenture and the Notes;



     (b) to add to the Company’s covenants for the benefit of the Holders or to surrender any right
or power conferred upon the Company;



     (c) to secure the Company’s obligations in respect of the Notes;



     (d) to evidence and provide the acceptance of the appointment of a successor Trustee under the
Indenture;



     (e) to comply with the requirements of the Commission in order to effect or maintain
qualification of the Indenture under the Trust Indenture Act, as contemplated by the Indenture or
otherwise;



     (f) to provide for conversion rights of Holders if any reclassification or change of common
stock or any consolidation, merger or sale of all or substantially all of the Company’s property
and assets occurs or otherwise comply with the provisions of the Indenture in the event of such a
transaction;



     (g) to increase the Conversion Rate in accordance with the terms of the Notes;



     (h) to cure any ambiguity, omission, defect or inconsistency in the Indenture; or



     (i) to make any change that does not adversely affect the rights of the Holders in any
material respect;



     (j) to conform the text of this Indenture or the Notes to any provision of the “Description of
the Notes” section of the Company’s prospectus supplement, dated August 13, 2008, relating to the
initial offering of the Notes;



     (k) to permit the authentication and delivery of additional Notes; or



     (l) to provide for uncertificated notes in addition to or in place of certificated notes.



     Section 5.02 Modifications and Amendments With Consent of Holders of Notes.



     With respect to the Notes, numbered paragraphs (1) through (3) in Section 902 of the Base
Indenture shall be replaced in its entirety with the following:



     (a) alter the manner of calculation or rate of accrual of interest on the Note or change the
time of payment of any installment of interest;



     (b) make the Note payable in money or securities other than that stated in the Note;



19









 





     (c) change the stated maturity of the Note;



     (d) reduce the principal amount or Fundamental Change Repurchase Price with respect to the
Note;



     (e) make any change that adversely affects the rights of a Holder to convert the Note or,
except as provided for in this Indenture, changes the consideration to be received upon any such
conversion;



     (f) make any change that adversely affects the right to require the Company to purchase the
Note;



     (g) impair the right to institute suit for the enforcement of any payment with respect to the
Note or with respect to conversion of the Note; or



     (h) reduce the percentage in principal amount of the Notes, the consent of whose holders is
required in order to modify or amend the Indenture or waive any past defaults in the payment of
principal, premium, if any, or interest on the Notes.



ARTICLE 6

Consolidation, Merger, Sale, Conveyance and Lease




     Section 6.01 Company May Consolidate, Etc. on Certain Terms. Notwithstanding anything to the
contrary in Section 801 of the Base Indenture, the Company shall not consolidate with or merge into
any other Person or convey, transfer or lease all or substantially all of the Company’s properties
and assets to any successor Person in a single transaction or series of related transactions,
unless:



     (a) either:




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




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



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



     (c) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that the transaction and such supplemental indenture comply with the Indenture.



     Any reference in the Base Indenture to Section 801 therein shall, for the Notes, be deemed a
reference to this Section 6.01.



ARTICLE 7

Conversion of Notes




     Section 7.01 Right to Convert.




20












 





     (a) Subject to the provisions of this Article 7, on or prior to the close of business on the
Business Day immediately preceding the Maturity Date, each Noteholder shall have the right, at such
Noteholder’s option, to convert all or any portion (if the portion to be converted is $1,000
principal amount or an integral multiple thereof) of such Noteholder’s Note into cash, and, if
applicable, Common Stock as provided herein. The obligation of the Company to convert the Notes is
referred to as the “Conversion Obligation.” The delivery to the Noteholder of the Settlement
Amount together with any cash payment for such holder’s fractional shares as provided in Section
7.02(k), will be deemed to satisfy the Company’s obligation to pay the principal amount of the
Notes and to satisfy the Company’s obligation to pay accrued and unpaid interest through the
Conversion Date, except as provided in Section 7.02(i). Holders of Common Stock issued upon
conversion, if any, will not be entitled to receive any dividends payable to holders of Common
Stock as of a record date before the applicable Conversion Date.



     Notwithstanding the foregoing, prior to June 15, 2013, the Notes are convertible only in the
circumstances described below in clauses (i)-(iii). On or after June 15, 2013, a Noteholder may
surrender Notes for conversion at any time prior to the close of business on the Business Day
immediately preceding the Maturity Date without regard to such conditions.




     (i) Conversion Upon Satisfaction of Common Stock Price Condition. Notes may be
converted during any calendar quarter commencing after September 30, 2008, and only during
such quarter, if the Last Reported Sale Price of the Common Stock for at least 20 Trading
Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the
quarter immediately preceding such quarter (appropriately adjusted to take into account the
occurrence, during such 30 consecutive Trading Days, of any event requiring adjustment of
the Base Conversion Price under this Indenture) is more than 130% of the Base Conversion
Price on such last Trading Day.




     (ii) Conversion Upon Satisfaction of Trading Price Condition. Notes may be converted
during the five consecutive Business Days after any five consecutive Trading Days on which
the Trading Price of $1,000 principal amount of Notes, as determined by the Trustee
following a request by a Noteholder in accordance with the procedures described below in
Section 7.01(c), for each Trading Day of such five Trading Days was less than 97% of the
product of the Last Reported Sale Price of the Common Stock for such Trading Day and the
Applicable Daily Conversion Rate on such day.




     (iii) Conversion Upon Specified Corporate Transactions.




     A Note may be converted during the applicable time period specified below if:




          (A) the Company makes a distribution to all or substantially all holders of Common
Stock of rights, warrants or options entitling them to subscribe for or purchase, for a
period expiring not more than 45 days after the Record Date of the distribution, shares of
Common Stock at a price per share less than the average Last Reported Sale Prices of the
Common Stock for the 10 Trading Days immediately preceding the date such distribution was
first publicly announced;




          (B) the Company makes a distribution, to all or substantially all holders of Common
Stock, of cash or other assets, debt securities, or rights or warrants to purchase the
Company’s securities (other than those described in Section 7.04(a) or (b)), where the fair
market value of such distribution per share of Common Stock (as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market value)
exceeds 15% of the



21









 






average of the Last Reported Sale Prices of the Common Stock for the ten
Trading Days immediately preceding the date such distribution was first publicly announced;




          (C) the Company is party to a consolidation, merger, share exchange, sale of all or
substantially all of its assets or other similar transaction (in each case other than with
one of the Company’s wholly-owned Subsidiaries), in each case pursuant to which the Common
Stock would be converted into (or holders of Common Stock would be entitled to receive)
cash, securities or other property; or




          (D) a Fundamental Change occurs.



     In the event of a distribution described in Sections 7.01(a)(iii)(A) and (B), the Company
shall cause a written notice of such distribution to be given to the Trustee and the Conversion
Agent and to be mailed to each Noteholder no later than 25 Trading Days prior to the Ex-Dividend
Date for such distribution. Once the Company has given such notice, Noteholders may surrender
their Notes for conversion at any time thereafter until the earlier of the close of business on the
Business Day immediately preceding the Ex-Dividend Date or the Company’s announcement that such
distribution will not take place. If such distribution does not occur as anticipated, the Company
will issue a press release and notify the holders who have elected to convert their Notes promptly
after the Company determines that such transaction will not occur and each such holder may elect to
withdraw any then pending election to convert by a written notice of withdrawal delivered to the
Conversion Agent within 10 Business Days (or longer period if required by law) after the Company
makes such announcement. In such event, the Noteholders who do not make such a withdrawal election
will receive the applicable Settlement Amount with respect to Notes surrendered for conversion
three Trading Days following the later of (i) the end of the applicable Cash Settlement Averaging
Period or (ii) the expiration of the 10 Business Day (or longer period if required by law)
withdrawal period referred to above. Notwithstanding Sections 7.01(a)(iii)(A) and (B) above,
Holders of the Notes may not surrender their Notes for conversion if they participate (as a result
of holding the Notes, and at the same time as holders of Common Stock) in any of the transactions
described in Sections 7.01(a)(iii)(A) or (B) as if such holders of the Notes held a number of
shares of the Common Stock equal to the Applicable Conversion Rate, (assuming for calculation
purposes that the applicable Cash Settlement Averaging Period for the Notes consists of the 20
consecutive Trading Days ending on and including the Trading Day immediately preceding the
Ex-Dividend Date) multiplied by the original principal amount of Notes held by such Noteholders
divided by $1,000, without having to convert their Notes.



     In the event of a transaction described in Sections 7.01(a)(iii)(C) or (D), the Company shall
cause a written notice of such transaction to be given to the Trustee (and if different, the
Conversion Agent) and the Conversion Agent and to each Noteholder (i) with respect to a transaction
that constitutes a Make-Whole Fundamental Change, as set forth in 7.03(d), (ii) with respect to a
transaction that constitutes a Fundamental Change that does not constitute a Make-Whole Fundamental
Change, as set forth in Section 8.01(b) and (iii) with respect any other such transaction no later
than the date on which such transaction becomes effective. Once the Company has given any such
notice, a Holder may surrender its Notes for conversion at any time from and including the
Effective Date of such transaction until and including the date that is 30 days after the Effective
Date of such transaction or, if later with respect to a transaction that constitutes a Fundamental
Change, until and including the Business Day immediately preceding the Fundamental Change
Repurchase Date with respect to such Fundamental Change.



     (b) For each fiscal quarter of the Company commencing prior to January 1, 2013, the Company
shall determine, on the first Business Day following the last Trading Day of the immediately
preceding quarter, whether the Notes are convertible pursuant to clause (i) of Section 7.01(a). If
the



22









 







conditions set forth in clause (i) of Section 7.01(a) have been met, the Company shall so
notify the Trustee and mail to each Noteholder a written notice.



     (c) The Trustee shall have no obligation to determine the Trading Price of the Notes pursuant
to clause (ii) of Section 7.01(a) unless the Company has requested such determination in writing;
and the Company shall have no obligation to make such request unless a Noteholder who holds at
least $2,000,000 principal amount of Notes provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Notes is reasonably likely to be less than 97% of the
product of the Last Reported Sale Price of the Common Stock and the Applicable Daily Conversion
Rate then in effect on such date. If a Noteholder provides such evidence or if the Company
otherwise elects to require such determination, the Company shall instruct the Trustee to determine
the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day
until the Trading Price of the Notes is greater than or equal to 97% of the product of the Last
Reported Sale price of the Common Stock and the Applicable Daily Conversion Rate on such date. The
Trustee shall promptly notify the Company of its determination on each such day. If the condition
set forth in clause (ii) of Section 7.01(a) has been met, the Company shall so notify the
Noteholders.



     (d) For purposes of clause (ii) of Section 7.01(a), if the Bid Solicitation Agent cannot
reasonably obtain at least one bid for $5.0 million principal amount of Notes from an independent
nationally recognized securities dealer on a Trading Day, then the Trading Price of Notes will be
deemed to be less than 97% of the product of the Last Reported Sale Price of the Common Stock and
the Applicable Daily Conversion Rate for such Trading Day.



Section 7.02 Conversion Procedure; Payment Upon Conversion.




     (a) Subject to this Section 7.02, the Company will satisfy the Conversion Obligation with
respect to each $1,000 principal amount of Notes surrendered for conversion by delivering a
“Settlement Amount” equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive
Trading Days during the applicable Cash Settlement Averaging Period.



     The Company shall deliver the Settlement Amount to the Noteholders who have surrendered Notes
for conversion on the third Business Day immediately following the last day of the Cash Settlement
Averaging Period in respect of such Notes.



     The (i) Applicable Conversion Rate, (ii) cash component of the Settlement Amount, (iii) number
of full shares of Common Stock, if any, to be delivered, and (iv) cash deliverable in lieu of
fractional shares pursuant to Section 7.02(k), if any, shall be determined by the Company promptly
following the last day of the Cash Settlement Averaging Period. Promptly after such determination,
the Company shall provide written notice to the Trustee and the Conversion Agent of such
determination. The Trustee and the Conversion Agent shall have no responsibility for any such
determination.



     (b) Before any Holder of a Note shall be entitled to convert the same as set forth above, such
Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such holder is not entitled as set forth in Section 7.02(i) and, if required,
all transfer or similar taxes, if any, as set forth Section 7.02(f) and (ii) in the case of a Note
issued in certificated form, (1) complete and manually sign and deliver an irrevocable notice to
the Conversion Agent in the form on the reverse of such certificated Note (or a facsimile thereof)
(Exhibit B hereto) (a “Notice of Conversion”) at the office of the Conversion Agent and shall state
in writing therein the principal amount of Notes to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for the shares of Common
Stock to be delivered upon settlement of the Conversion Obligation to be registered,



23









 







(2) surrender such Notes, duly endorsed to the Company or in blank, at the office of the Conversion Agent, (3) if
required, pay funds equal to interest payable on the next Interest Payment Date to which such
Holder is not entitled as set forth in Section 7.02(i), (4) if required, furnish appropriate
endorsements and transfer documents, and (5) if required, pay all transfer or similar taxes, if
any, as set forth in Section 7.02(f). The Trustee (and if different, the relevant Conversion
Agent) shall notify the Company of any conversion pursuant to this Article 8 on the date of such
conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder
thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in
respect of such Notes and not validly withdrawn such Fundamental Change Repurchase Notice in
accordance with Section 8.02.



     If more than one Note shall be surrendered for conversion at one time by the same holder, the
Conversion Obligation with respect to such Notes, if any, that shall be payable upon conversion
shall be computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted thereby) so surrendered.



     (c) [RESERVED]



     (d) A Note shall be deemed to have been converted immediately prior to the close of business
on the date (the “Conversion Date”) that the holder has complied with the requirements set forth in
Section 7.02(b) above. The payment of cash and delivery of shares of Common Stock, if any, and the
payment of cash, if any, in lieu of fractional shares, pursuant to Section 7.02(a) in satisfaction
of the Conversion Obligation shall be made by the Company in no event later than the date specified
in Section 7.02(a) by (i) payment of the cash comprising a portion of the Settlement Amount
(including amounts of cash in lieu of the issuance of any fractional shares, if any), and (ii) by
issuing or causing to be issued, and delivering to the Conversion Agent or to such holder, or such
holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the
number of full shares of Common Stock, if any, to which such holder shall be entitled as part of
such Conversion Obligation.



     (e) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the holder of the
Note so surrendered, without charge to such holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the surrendered Note.



     (f) If a holder submits a Note for conversion, the Company shall pay all documentary, stamp or
similar issue or transfer tax, if any, that may be imposed by the United States or any political
subdivision thereof or taxing authority thereof or therein with respect to the issuance of shares
of Common Stock, upon the conversion. However, the holder shall pay any such tax that is due
because the holder requests any such shares of Common Stock to be issued in a name other than the
holder’s name. The Conversion Agent may refuse to deliver the certificates representing the shares
of Common Stock being issued in a name other than the holder’s name until the Trustee receives a
sum sufficient to pay any tax that will be due because the shares are to be issued in a name other
than the holder’s name. Nothing herein shall preclude any tax withholding required by law or
regulations.



     (g) Except as provided in Section 7.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note with a record date after the Conversion Date.



     (h) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Notes effected through any Conversion Agent other than the Trustee.



24









 





     (i) If Notes are converted after the close of business on a Interest Record Date but prior to
the open of business on the immediately following Interest Payment Date, holders of such Notes as
of the close of business on the Interest Record Date will receive the interest payable on such
Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes, upon
surrender for conversion during the period from the close of business on any Interest Record Date
but prior to the open of business on the immediately following Interest Payment Date, must be
accompanied by funds equal to the amount of the interest payable on the Notes so converted;
provided, however, that no such payment shall be required (1) if the Company has specified a
Fundamental Change Repurchase Date that is after an Interest Record Date but on or prior to the
Business Day immediately following the related Interest Payment Date, (2) to the extent of any
overdue interest, if any, existing at the time of conversion with respect to such Note or (3) if
the Notes are surrendered for conversion after the close of business on the Interest Record Date
immediately preceding the Maturity Date and before the close of business on the Business Day
immediately preceding the Maturity Date. Except as described above, no payment or adjustment will
be made for accrued and unpaid interest on converted Notes.



     (j) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business on
the applicable Conversion Date. Upon conversion of Notes, such Person shall no longer be a
Noteholder.



     (k) No fractional shares of Common Stock or securities representing fractional shares of
Common Stock shall be issued upon conversion of any Note or Notes. Instead of any fractional share
of Common Stock or securities representing fractional shares of Common Stock that would otherwise
be issued upon conversion of any Note or Notes (or specified portions thereof), the Company shall
pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share),
as determined by the Company, in an amount equal to the same fraction of the average of the
Applicable Stock Prices on each Trading Day of the applicable Cash Settlement Averaging Period.
For purposes of the foregoing, fractional shares arising from the calculation of the Daily
Settlement Amount for any day in the Cash Settlement Averaging Period shall be aggregated with
fractional shares for all other days in such period in determining the Settlement Amount, and any
whole shares resulting therefrom shall be issued and any remaining fractional shares shall be paid
in cash as provided herein. If more than one Note shall be surrendered for conversion at one time
by the same holder, the number of full shares that shall be issued upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof) so surrendered.



     (l) When a Noteholder surrenders Notes for conversion, the Company may, at its election,
direct, in writing, the Conversion Agent to surrender such Notes to a financial institution
designated by the Company (the “Designated Institution”) for exchange in lieu of conversion. In
order to accept any Notes surrendered for conversion, the Designated Institution must agree to
deliver, in exchange for such Notes, the cash and the number of shares of Common Stock, if any, due
upon conversion based upon the Applicable Conversion Rate in full satisfaction of the Conversion
Obligation, as determined pursuant to Section 7.02(a). If such an election is made, then by the
close of business on the Scheduled Trading Day immediately preceding the start of the Cash
Settlement Averaging Period, the Company will provide written notification to the Trustee and
Noteholder surrendering the Notes for conversion that it has directed the Designated Institution to
make an exchange in lieu of conversion. If the Designated Institution accepts any such Notes, it
will deliver the cash and the number of shares of Common Stock, if any, due upon conversion to the
Conversion Agent, and the Conversion Agent will deliver such cash and shares of Common Stock to the
converting Noteholder. Any Notes exchanged by the Designated Institution will remain outstanding.
If the Designated Institution does not accept the Notes for exchange or agrees to accept any Notes
for exchange but does not timely deliver the related cash and shares of Common Stock, the Company
will, as promptly as practical thereafter (but in any event, no later than the fourth Trading Day
immediately following the last Trading Day of the relevant Cash Settlement



25









 







Averaging Period) convert the Notes as set forth under Section 7.02(a). The Company’s designation of a Designated
Institution to which the Notes may be submitted for exchange does not require the Designated
Institution to accept any Notes. The Company will not pay any consideration to, or otherwise enter
into any agreement with, the Designated Institution for or with respect to such designation.



Section 7.03 Increase of Conversion Rate Upon Conversion Upon Make-Whole Fundamental Changes.




     (a) If a Noteholder elects to convert Notes in connection with a Make-Whole Fundamental
Change, then the Applicable Conversion Rate of the Notes being converted by such Noteholder shall
be increased by an additional number of shares of Common Stock (the “Additional Shares”) if any, as
described herein. For purposes of this Section 7.03, any conversion of the Notes by a Noteholder
will be deemed to be “in connection with” such Make-Whole Fundamental Change if it occurs during
the period that begins on the Effective Date of such Make-Whole Fundamental Change and ends on (and
includes) the Business Day prior to the Fundamental Change Repurchase Date relating to such
Make-Whole Fundamental Change.



     The increase in the Applicable Conversion Rate in connection with a Make-Whole Fundamental
Change, expressed as a number of Additional Shares, will be determined by the Company by reference
to the table and adjustments thereto as provided in Section 7.03(b), based on the Effective Date of
the Make-Whole Fundamental Change and the applicable Stock Price. Any such increase in the
Applicable Conversion Rate will be effected by adding to each of the Daily Conversion Rate
Fractions 1/20th of the applicable number of Additional Shares set forth in the tables in clause
(b) below with respect to such Make-Whole Fundamental Change.



     (b) The following table sets forth the Stock Price, Effective Date and number of Additional
Shares by which the Applicable Conversion Rate will be increased upon a conversion in connection
with a Make-Whole Fundamental Change that occurs in the corresponding period to be determined by
reference to the Stock Price and Effective Date of the Make-Whole Fundamental Change:



 




    NUMBER OF
    ADDITIONAL SHARES

    (PER $1,000 PRINCIPAL AMOUNT OF THE NOTES)



 


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	

    Effective Date


	
 
	
    Stock Price
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
    $
	
    20.21
	
 
	
 
	
    $
	
    25.00
	
 
	
 
	
    $
	
    30.00
	
 
	
 
	
    $
	
    35.00
	
 
	
 
	
    $
	
    40.00
	
 
	
 
	
    $
	
    45.00
	
 
	
 
	
    $
	
    50.00
	
 
	
 
	
    $
	
    55.00
	
 
	
 
	
    $
	
    60.00
	
 
	
 
	
    $
	
    65.00
	
 
	
 
	
    $
	
    70.00
	
 
	
 
	
    $
	
    75.00
	
 
	
 
	
    $
	
    80.00
	
 
	
 
	
    $
	
    85.00
	
 
	
 
	
    $
	
    90.00
	
 
	
 
	
    $
	
    95.00
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 19, 2008


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    14.2096
	
 
	
 
	
 
	
    11.9859
	
 
	
 
	
 
	
    9.5052
	
 
	
 
	
 
	
    6.8850
	
 
	
 
	
 
	
    5.0571
	
 
	
 
	
 
	
    3.7372
	
 
	
 
	
 
	
    2.7592
	
 
	
 
	
 
	
    2.0210
	
 
	
 
	
 
	
    1.4572
	
 
	
 
	
 
	
    1.0241
	
 
	
 
	
 
	
    0.6911
	
 
	
 
	
 
	
    0.4363
	
 
	
 
	
 
	
    0.2444
	
 
	
 
	
 
	
    0.1069
	
 
	
 
	
 
	
    0.0231
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 15, 2009


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    13.3273
	
 
	
 
	
 
	
    11.0232
	
 
	
 
	
 
	
    8.6045
	
 
	
 
	
 
	
    6.1009
	
 
	
 
	
 
	
    4.4009
	
 
	
 
	
 
	
    3.2015
	
 
	
 
	
 
	
    2.3292
	
 
	
 
	
 
	
    1.6806
	
 
	
 
	
 
	
    1.1913
	
 
	
 
	
 
	
    0.8192
	
 
	
 
	
 
	
    0.5359
	
 
	
 
	
 
	
    0.3212
	
 
	
 
	
 
	
    0.1620
	
 
	
 
	
 
	
    0.0532
	
 
	
 
	
 
	
    0.0000
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 15, 2010


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    12.2709
	
 
	
 
	
 
	
    9.7947
	
 
	
 
	
 
	
    7.4302
	
 
	
 
	
 
	
    5.0752
	
 
	
 
	
 
	
    3.5483
	
 
	
 
	
 
	
    2.5139
	
 
	
 
	
 
	
    1.7860
	
 
	
 
	
 
	
    1.2583
	
 
	
 
	
 
	
    0.8678
	
 
	
 
	
 
	
    0.5753
	
 
	
 
	
 
	
    0.3553
	
 
	
 
	
 
	
    0.1910
	
 
	
 
	
 
	
    0.0740
	
 
	
 
	
 
	
    0.0058
	
 
	
 
	
 
	
    0.0000
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 15, 2011


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    10.9950
	
 
	
 
	
 
	
    8.1773
	
 
	
 
	
 
	
    5.8503
	
 
	
 
	
 
	
    3.7042
	
 
	
 
	
 
	
    2.4328
	
 
	
 
	
 
	
    1.6406
	
 
	
 
	
 
	
    1.1195
	
 
	
 
	
 
	
    0.7593
	
 
	
 
	
 
	
    0.5006
	
 
	
 
	
 
	
    0.3100
	
 
	
 
	
 
	
    0.1678
	
 
	
 
	
 
	
    0.0645
	
 
	
 
	
 
	
    0.0026
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 15, 2012


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    9.5428
	
 
	
 
	
 
	
    5.9297
	
 
	
 
	
 
	
    3.5739
	
 
	
 
	
 
	
    1.7847
	
 
	
 
	
 
	
    0.9596
	
 
	
 
	
 
	
    0.5659
	
 
	
 
	
 
	
    0.3586
	
 
	
 
	
 
	
    0.2321
	
 
	
 
	
 
	
    0.1427
	
 
	
 
	
 
	
    0.0728
	
 
	
 
	
 
	
    0.0183
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 

	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 
	
 

	

    August 15, 2013


	
 
	
 
	
    18.5552
	
 
	
 
	
 
	
    9.0676
	
 
	
 
	
 
	
    2.4021
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 
	
 
	
 
	
    0.0000
	
 






provided, however, that:





     (i) if the actual Stock Price of such Make-Whole Fundamental Change is between two
Stock Prices listed in the tables above under the column titled “Stock Price,” or if the
actual Effective Date of such Make-Whole Fundamental Change is between two Effective Dates
listed in the tables above in the row immediately below the title “Effective Date,” then the
number of Additional Shares for such Make-Whole Fundamental Change shall be determined by
the



26









 






Company by a straight-line interpolation between the number of Additional Shares set
forth for such higher and lower Stock Prices, and the earlier and later Effective Dates
based on a 365 day year, as applicable;




     (ii) if the actual Stock Price of such Make-Whole Fundamental Change is greater than
$95.00 per share (subject to adjustment in the same manner as the Stock Price as provided in
clause (iii) below), or if the actual Stock Price of such Make-Whole Fundamental Change is
less than $20.21 per share (subject to adjustment in the same manner as the Stock Price as
provided in clause (iii) below), then the number of Additional Shares shall be equal to zero
and this Section 7.03 shall not require the Company to increase the Applicable Conversion
Rate with respect to such Make-Whole Fundamental Change;




     (iii) if an event occurs that requires, pursuant to Section 7.04, an adjustment to the
Base Conversion Rate, then, on the date and at the time such adjustment is so required to be
made, each price set forth in the tables above under the row titled “Stock Price” shall be
adjusted so that such Stock Price, at and after such time, shall be equal to the product of
(1) such Stock Price as in effect immediately before such adjustment to such Stock Price and
(2) a fraction whose numerator is the Base Conversion Rate in effect immediately before such
adjustment to the Base Conversion Rate and whose denominator is the Base Conversion Rate to
be in effect, in accordance with Section 8.04, immediately after such adjustment to the Base
Conversion Rate; and




     (iv) each number of Additional Shares set forth in the tables above shall be adjusted
in the same manner in which, and for the same events for which, the Base Conversion Rate is
to be adjusted pursuant to Section 7.04.



     In no event will the Applicable Conversion Rate after adjustment described in this Section
7.03(b) exceed 49.4805 per $1,000 principal amount of Notes, subject to adjustments as set forth in
Section 8.04.



     (c) For the avoidance of doubt, the increases provided for in Section 7.03 shall only be made
with respect to the Notes being converted in connection with such Make-Whole Fundamental Change and
shall not be effective as to any Notes not so converted.



     (d) The Company will give notice of a Make-Whole Fundamental Change to all record Noteholders
and to the Trustee and the Conversion Agent no later than (i) the Effective Date of a Make-Whole
Fundamental Change described in clause (d) of the definition of Fundamental Change or (ii) two
Business Days after the Company learns of a Make-Whole Fundamental Change described in clause (a)
of the definition of Fundamental Change. Each such notice shall state that in connection with such
Make-Whole Fundamental Change, the Company shall increase, in accordance herewith, the Applicable
Conversion Rate applicable to Notes entitled as provided herein to such increase (along with a
description of how such increase shall be calculated and the time periods during which Notes must
be surrendered in order to be entitled to such increase).



Section 7.04 Adjustment of Base Conversion Rate. The Base Conversion Rate shall be adjusted from time to time by the Company as follows:




     (a) In case the Company shall issue shares of Common Stock as a dividend or distribution on
shares of Common Stock to all holders of the outstanding shares of Common Stock, or if the Company
effects a share split or share combination, the Base Conversion Rate will be adjusted based on the
following formula:



27









 





	 	 	 
	CR’ = CR0 x

	 	OS’
	 

	 	 
	 

	 	OS0






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

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

	 	=
	 	the new Base Conversion Rate in effect immediately
after the open of business on the Ex-Dividend Date
for such dividend or distribution, or immediately
after the open of business on the effective date
of such share split or share combination, as the
case may be;
	 
	 	 	 	 
	OS0

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

	 	=
	 	the number of outstanding shares of Common Stock
immediately prior to the open of business on the
Ex-Dividend Date for such dividend or
distribution, or immediately prior to the open of
business on the effective date of such share split
or share combination, as the case may be,
assuming, for this purpose only, the completion of
such dividend, distribution, share split or share
combination, as the case may be, immediately prior
to the open of business on such date.






Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such dividend or distribution, or the effective date for such share split or share
combination. If any dividend or distribution of the type described in this Section 7.04(a) is
declared but not so paid or made, or any split or combination of the type described in this Section
7.04(a) is announced but the outstanding shares of Common Stock are not split or combined, as the
case may be, the new Base Conversion Rate shall be immediately readjusted, effective as of the date
the Board of Directors determines not to pay such dividend or distribution, or split or combine the
outstanding shares of Common Stock, as the case may be, to the Base Conversion Rate that would then
be in effect if such dividend or distribution had not been declared or such share split or share
combination had not been announced.



     (b) In case the Company shall distribute to all or substantially all holders of its Common
Stock any rights or warrants entitling them for a period of not more than 45 calendar days after
the Record Date of such distribution to subscribe for or purchase shares of the Common Stock at a
price per share less than the average of the Last Reported Sale Prices of the Common Stock on the
10 Trading Days immediately preceding the date that such distribution was first publicly announced,
the Base Conversion Rate shall be adjusted based on the following formula:



	 	 	 
	CR’ = CR0 x

	 	OS0 + X
	 

	 	 
	 

	 	OS0 + Y






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

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






28









 





	 	 	 	 	 
	CR’

	 	=
	 	the new Base Conversion Rate in effect immediately
after the open of business on the Ex-Dividend Date
for such distribution;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of outstanding shares of the Common
Stock immediately prior to the open of business on
the Ex-Dividend Date for such distribution;
	 
	 	 	 	 
	X

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

	 	=
	 	the number of shares of the Common Stock equal to
the aggregate price payable to exercise such
rights or warrants, divided by the average of the
Last Reported Sale Prices of Common Stock over the
10 consecutive Trading Days ending on the Trading
Day immediately preceding the Ex-Dividend Date for
such distribution of such rights or warrants.






Such adjustment shall be successively made whenever any such rights or warrants are distributed and
shall become effective immediately after the open of business on the Ex-Dividend Date for such
distribution. To the extent that shares of the Common Stock are not delivered after the expiration
of such rights or warrants, the Base Conversion Rate shall be readjusted to the Base Conversion
Rate that would then be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights or warrants are not so issued, the Base Conversion Rate shall again be
adjusted to be the Base Conversion Rate that would then be in effect if such distribution had not
been declared.



     In determining whether any rights or warrants entitle the holders to subscribe for or purchase
shares of the Common Stock at less than the applicable Last Reported Sale Price of the Common
Stock, and in determining the aggregate exercise price payable for such Common Stock, there shall
be taken into account any consideration received by the Company for such rights or warrants and any
amount payable upon exercise thereof, with the value of such consideration, if other than cash, to
be determined by the Board of Directors. In no event shall the Base Conversion Rate be decreased
pursuant to this Section 7.04(b), except for readjustments described above.



     (c) In case the Company shall distribute shares of its capital stock, evidences of its
indebtedness or other of its assets or property other than (i) dividends or distributions covered
by Section 7.04(a) or Section 7.04(b), (ii) dividends or distributions paid exclusively in cash,
and (iii) Spin-Offs to which the provisions set forth below in this Section 7.04(c) shall apply
(any of such shares of capital stock, indebtedness, or other asset or property hereinafter in this
Section 7.04(c) called the “Distributed Property”), to all or substantially all holders of its
Common Stock, then, in each such case, the Base Conversion Rate shall be adjusted based on the
following formula:



	 	 	 
	CR’ = CR0 x

	 	SP0
	 

	 	 
	 

	 	SP0 — FMV






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend
Date for such distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the new Base Conversion Rate in effect immediately
after the open of business on the Ex-Dividend Date
for such distribution;






29









 





	 	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Days ending on the Trading Day immediately
preceding the Ex-Dividend Date for such
distribution; and
	 
	 	 	 	 
	FMV

	 	=
	 	the fair market value (as determined by the Board
of Directors or a committee thereof) of the
Distributed Property with respect to one share of
the Common Stock on the Ex-Dividend Date for such
distribution.






Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such distribution; provided that if “FMV” as set forth above is equal to or greater than
“SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Noteholder shall receive on the date on which the Distributed Property is
distributed to holders of the Common Stock, for each $1,000 principal amount of Notes upon
conversion, the amount of Distributed Property such holder would have received had such holder
owned a number of shares of Common Stock equal to the Applicable Daily Conversion Rate on the
Record Date for such distribution. Except as provided below, if the Board of Directors determines
“FMV” for purposes of this Section 7.04(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 Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading
Days ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution.



     In lieu of the foregoing, with respect to an adjustment pursuant to this Section 7.04(c) where
there has been a dividend or other distribution on the Common Stock of shares of capital stock of
any class or series, or similar equity interest, of or relating to a Subsidiary or other business
unit of the Company (a “Spin-Off”), the Base Conversion Rate will be adjusted based on the
following formula:



	 	 	 
	CR’ = CR0 x

	 	FMV0 + MP0
	 

	 	 
	 

	 	MP0






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend
Date of the Spin-Off;
	 
	 	 	 	 
	CR’

	 	=
	 	the new Base Conversion Rate in effect immediately
after the open of business on the Ex-Dividend Date
of the Spin-Off;
	 
	 	 	 	 
	FMV

	 	=
	 	the average of the last reported sale prices of
the capital stock or similar equity interest
distributed to holders of the Common Stock on its
principal trading market applicable to one share
of the Common Stock over the 10 consecutive
Trading Days immediately following, and including,
the Ex-Dividend Date of the Spin-Off (the
“Spin-Off Valuation Period”); and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the Spin-Off Valuation
Period.






The adjustment to the Base Conversion Rate under the preceding paragraph will be deemed to be
effective immediately after the open of business on the Ex-Dividend Date of the Spin-Off; provided
that, for purposes of determining the Base Conversion Rate, in respect of any Trading Day during a
Cash Settlement Averaging Period during a Spin-Off Valuation Period, references in the portion of
this Section



30









 








7.04(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and such
Trading Day.



     If any distribution referred to above is declared but not paid or made, the Base Conversion
Rate shall be readjusted to be the Base Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.



     (d) If the Company pays any cash dividend in excess of the Base Dividend Amount in the
aggregate in any single quarterly period (i.e., January 1 through March 31, April 1 through June
30, July 1 through September 30 and October 1 through December 31) to all or substantially all
holders of the Common Stock, the Base Conversion Rate shall be adjusted based on the following
formula:



	 	 	 
	CR’ = CR0 x

	 	SP0
	 

	 	 
	 

	 	SP0 — C






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend
Date for such dividend or distribution;
	 
	 	 	 	 
	CR’

	 	=
	 	the new Base Conversion Rate in effect immediately
after the open of business on the Ex-Dividend Date
for such dividend or distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the ten Trading Days ending
on the Trading Day immediately preceding the
Ex-Dividend Date for such dividend or
distribution; and
	 
	 	 	 	 
	C

	 	=
	 	the aggregate amount by which the aggregate amount
of cash so distributed in any single quarterly
period applicable to one share of Common Stock
exceeds the Base Dividend Amount.






Such adjustment shall become effective immediately after the open of business on the Ex-Dividend
Date for such dividend or distribution; provided that if the portion of the cash so distributed
applicable to one share of the Common Stock is equal to or greater than “SP0” as set
forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive on the date on which the relevant cash dividend or
distribution is distributed to holders of Common Stock, for each $1,000 principal amount of Notes
upon conversion, the amount of cash such holder would have received had such holder owned a number
of shares equal to the Applicable Daily Conversion Rate on the Record Date for such distribution.
If such dividend or distribution is not so paid or made, the Base Conversion Rate shall again be
adjusted to be the Base Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.



     For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into cash
and one or more classes of Common Stock, if an adjustment to the Base Conversion Rate is thereafter
required pursuant to this Section 8.04(d), references in this Section to one share of Common Stock
or Last Reported Sale Price of one share of Common Stock shall be deemed to refer to a unit or to
the price of a unit consisting of an amount of cash and shares equal to the number of shares of
each class of Common Stock into which the Notes are then convertible plus the cash issued in
respect of one share of Common Stock in such reclassification. The above provisions of this
paragraph shall similarly apply to successive reclassifications.



31









 





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



	 	 	 
	CR’ = CR0 x

	 	AC + (SP’ x OS’)
	 

	 	 
	 

	 	OS0 x SP’






	 	 	 	 	 
	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Base Conversion Rate in effect immediately
prior to the close of business on the Trading Day
next succeeding the date such tender or exchange
offer expires;
	 
	 	 	 	 
	CR’

	 	=
	 	the new Base Conversion Rate in effect immediately
after the close of business on the Trading Day
next succeeding the date such tender or exchange
offer expires;
	 
	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined by the Board of
Directors or a committee thereof) paid or payable
for shares of Common Stock purchased in such
tender or exchange offer;
	 
	 	 	 	 
	OS0

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

	 	=
	 	the number of outstanding shares of Common Stock
immediately after the date such tender or exchange
offer expires (after giving effect to the purchase
of all shares accepted for purchase or exchange
pursuant to such tender offer or exchange offer);
and
	 
	 	 	 	 
	SP’

	 	=
	 	the average of the Last Reported Sale Prices of
Common Stock over the 10 consecutive Trading Days
commencing on, and including, the Trading Day next
succeeding the date such tender or exchange offer
expires.






Such adjustment to become effective immediately after the close of business on the Trading Day
immediately following the date such tender or exchange offer expires; provided that, for purposes
of determining the Base Conversion Rate, in respect of any Trading Day during a Cash Settlement
Averaging Period during the 10 Trading Days immediately following, but excluding, the date that any
such tender or exchange offer expires, references in this Section 7.04(e) to 10 Trading Days shall
be deemed replaced with such lesser number of Trading Days as have elapsed between the date that
such tender or exchange offer expires and such Trading Date. If the Company or one of its
Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or
exchange offer but is permanently prevented by applicable law from effecting any or all or any such
purchase or all such purchases are rescinded, the new Base Conversion Rate shall be readjusted to
be the Base Conversion Rate that would then be in effect if such tender or exchange offer had not
been made. In no event shall the Base Conversion Rate be decreased pursuant to this Section
7.04(e), except with respect to readjustment described above.



     (f) For purposes of this Section 7.04, the term “Record Date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock (or other
security) have the right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any combination of cash,
securities or



32









 






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) Except as stated herein, the Company shall not adjust the Base Conversion Rate for the
issuance or acquisition of shares of its Common Stock or any securities convertible into or
exchangeable for shares of its Common Stock or the right to purchase shares of its Common Stock or
such convertible or exchangeable securities.



     (h) In addition to those required by clauses (a), (b), (c), (d) and (e) of this Section 7.04,
and to the extent permitted by applicable law and subject to the applicable rules of the National
Securities Exchange, the Company from time to time may increase the Base Conversion Rate by any
amount for a period of at least 20 Business Days. In addition, the Company may also (but, except
as provided herein, is not required to) increase the Base Conversion Rate to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock in connection with any
dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the
Base Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the
holder of each Note at its last address appearing on the Note Register provided for in Section 2.05
a notice of the increase at least 15 calendar days prior to the date the increased Base Conversion
Rate takes effect, and such notice shall state the increased Base Conversion Rate and the period
during which it will be in effect.



     (i) The Base Conversion Rate will not be adjusted:




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




     (ii) upon the issuance of any shares of the Common Stock or restricted stock units or
options or rights (including stockholder appreciation rights) to purchase those shares
pursuant to any present or future employee, director or consultant benefit plan or program
of or assumed by the Company or any of the Company’s Subsidiaries;




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




     (iv) upon the repurchase of any of the Common Stock pursuant to an open-market share
repurchase program or other buy-back transaction that is not a tender offer or exchange
offer of the nature described in this Section 7.04;




     (v) for a change in the par value of the Common Stock;




     (vi) for accrued and unpaid interest, if any.



     (j) All calculations and other determinations under this Article 7 shall be made by the
Company to the nearest one-ten thousandth (1/10,000th) of a share, and such calculations and
determinations shall be provided to the Trustee in an Officers’ Certificate as set forth herein.
Notwithstanding anything in this Section 7.04, the Company will not be required to adjust the Base
Conversion Rate unless the adjustment would result in a change of at least 1% of the Base
Conversion Rate. However, the Company will carry forward any adjustments that are less than 1% of
the Base Conversion Rate and take them into account when determining subsequent adjustments. In
addition, the



33









 






Company will make any carry forward adjustments not otherwise effected upon
conversion of the Notes (at the beginning of the applicable Cash Settlement Averaging Period). No
adjustment to the Base Conversion Rate will be made if it results in a Base Conversion Price that
is less than the par value (if any) of Common Stock.



     (k) At any time the Base Conversion Rate is adjusted as described in this Section 7.04, the
Incremental Share Factor and Daily Share Cap will be adjusted in the same proportion.



     (l) Whenever the Base Conversion Rate, Incremental Share Factor and Daily Share Cap are
adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion
Agent other than the Trustee an Officers’ Certificate setting forth the Base Conversion Rate,
Incremental Share Factor and Daily Share Cap after such adjustment and setting forth the adjustment
calculation and a brief statement of the facts requiring such adjustment. Unless and until the
Trustee shall have received such Officers’ Certificate, the Trustee and Conversion Agent shall not
be deemed to have knowledge of any adjustment of the Base Conversion Rate, Incremental Share Factor
or Daily Share Cap and may assume without inquiry that the last, Base Conversion Rate, Incremental
Share Factor and Daily Share Cap 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 Base
Conversion Rate, Incremental Share Factor and Daily Share Cap setting forth the adjusted Base
Conversion Rate, Incremental Share Factor and Daily Share Cap and the date on which each adjustment
becomes effective and shall mail such notice of such adjustment of the Base Conversion Rate,
Incremental Share Factor and Daily Share Cap to the holder of each Note at its last address
appearing on the Note Register provided for in Section 2.05, within 10 calendar days of the
effective date of such adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.



     (m) For purposes of this Section 7.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.



     (n) The Board of Directors will make appropriate adjustments, in its good faith determination,
to account for any adjustment to the Base Conversion Rate that becomes effective, or any event
requiring an adjustment to the Base Conversion Rate where the Ex-Dividend Date of the event occurs,
during any consecutive Trading Day period used for the measurement of any adjustment required under
this Section 7.04. In addition, if the effective date of any adjustment event described in this
7.04 occurs during a Cash Settlement Averaging Period for any Notes, then the Company will make
proportional adjustments to the number of deliverable shares for each Trading Day during the
portion of the Cash Settlement Averaging Period preceding the effective date of such adjustment
event.



Section 7.05 [RESERVED]




Section 7.06 Effect of Reclassification, Consolidation, Merger or Sale; Treatment of Reference Property.




     (a) Upon the occurrence of (i) any reclassification of the Common Stock (other than a change
only in par value, or from par value to no par value, or from no par value to par value, or a
change as a result of a subdivision or combination of Common Stock), (ii) any consolidation, merger
or combination involving the Company, or (iii) any sale or conveyance to another Person of all or
substantially all of the property and assets of the Company, and pursuant to such reclassification,
consolidation, merger, combination, sale or conveyance, the Common Stock is converted into or
exchanged for stock, other securities, other property or assets (including cash) or any combination
thereof (any such event a “Merger Event”), then the Company, or such successor or surviving,
purchasing or



34









 






transferee Person, as the case may be, shall, as a condition precedent to such Merger
Event, execute and deliver to the Trustee a supplemental indenture providing that, at the effective
time of the Merger Event, the right to receive shares of Common Stock, if any, upon conversion of a
Note with respect to the portion of the Daily Conversion Value in excess of $50 will be changed
into the right to receive the kind and amount of shares of stock, other securities or other
property or assets (including cash) or any combination thereof (in the same proportions) that a
holder would have been entitled to receive (the “Reference Property”) in such transaction in
respect of such Common Stock, and from and after the effective time of such transaction, the Daily
Conversion Values and Daily Share Amounts will be determined based on the values and amounts, as
applicable, of one unit of Reference Property (a “unit” of Reference Property being the kind and
amount thereof (in the same proportions) of Reference Property that a holder of one share of Common
Stock would receive in such transaction) and the Daily Conversion Rate Fractions will relate to
such units of Reference Property.



     In the event the Company shall execute a supplemental indenture pursuant to this Section 7.06,
the Company shall promptly give the Trustee an Officers’ Certificate briefly stating the reasons
therefore, the kind or amount of cash, securities or property or asset that will comprise the
Reference Property after any such Merger Event, any adjustment to be made with respect thereto and
that all conditions precedent have been complied with, and shall promptly mail notice thereof to
all Noteholders. The Company shall cause notice of the execution of such supplemental indenture to
be mailed to each Noteholder, at its address appearing on the Note Register provided for in this
First Supplemental Indenture, within 20 calendar days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of such supplemental indenture.



     (b) If the Merger Event causes the Common Stock to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form of stockholder
election), the Reference Property into which the Notes will be convertible will be deemed to be (i)
if holders of the majority of Common Stock affirmatively make such election, the weighted average
of the types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election or (ii) if the holders of a majority of Common Stock do not
make such an election, the types and amount of consideration actually received by such holders.



     (c) None of the foregoing provisions shall affect the right of a Noteholder to convert its
Notes in accordance with the provisions of this Article 7 prior to the Effective Date of such
Merger Event. The provisions of this Section 7.06 shall similarly apply to successive Merger
Events.



Section 7.07 Certain Covenants.




     (a) The Company covenants that all shares of Common Stock issued upon conversion of Notes will
be fully paid and non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.



     (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company shall, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.



     (c) The Company further covenants that if at any time the Common Stock shall be listed on any
U.S. national or regional securities exchange or automated quotation system the Company shall, if
permitted and required by the rules of the relevant exchange or automated quotation system, list
and keep



35









 






listed, so long as the Common Stock shall be so listed on such exchange or automated
quotation system, any Common Stock issuable upon conversion of the Notes.



Section 7.08 Responsibility of Trustee. The Trustee (and if different, the Conversion Agent)
shall not at any time have any obligation to make any calculations or other determinations under
this Article 7, except as provided in Section 7.01(c). The Trustee (and if different, the
Conversion Agent) shall have no duty or responsibility to any Noteholder to determine the
Applicable Conversion Rate (or any adjustment thereto) or whether any facts exist that may require
any adjustment (including any increase) of the Base 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 if different, the 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,
property or cash that may at any time be issued or delivered upon the conversion of any Note; 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 Note for the purpose of conversion or to comply with any
of the duties, responsibilities or covenants of the Company contained in this Article. 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 calculations or determinations made by
the Company under this Supplemental Indenture or of any provisions contained in any supplemental
indenture entered into pursuant to Section 7.06 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Noteholders upon the conversion of
their Notes after any event referred to in such Section 7.06 or to any adjustment to be made with
respect thereto. Subject to the provisions of Section 801 of the Base Indenture, the Trustee (and
if different, the Conversion Agent) may accept (without any independent investigation) as
conclusive evidence of the correctness of any such calculations, determinations or provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee and Conversion Agent in connection with the Company’s Conversion
Obligation and prior to the execution of any such supplemental indenture) with respect thereto. In
no event shall the Trustee be liable for special, indirect, punitive or consequential loss or
damage of any kind whatsoever (including, but not limited to, loss of profit) in performing its
duties and responsibilities under this Supplemental Indenture, even if the Trustee has been advised
as to the likelihood of such loss or damage and regardless of the form of action.



Section 7.09 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 Base Conversion Rate pursuant to Section 7.04; or



     (b) the Company shall authorize the granting to all of the holders of its Common Stock of
rights or warrants to subscribe for or purchase any share of any class or any other rights or
warrants that would require an adjustment in the Base Conversion Rate pursuant to Section 7.04; or



     (c) of any reclassification of the Common Stock (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 or transfer of
all or substantially all of the assets of the Company; or



     (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company.



36









 





     The Company shall give to the Trustee and to mail to each Noteholder at its address appearing
on the Note Register or publicly announce, unless another notice of such event is specified
elsewhere in this Supplemental Indenture, at least 15 calendar days prior to the applicable date
hereinafter specified, a notice stating (i) 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 (ii) the date on which such reclassification,
consolidation, merger, sale, 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.



Section 7.10 Shareholder Rights Plans.




     (a) In the event the Company adopts or implements a shareholder rights agreement (a
“Shareholder Rights Plan”) pursuant to which certain rights (the “Rights”) are distributed to the
holders of Common Stock and such Shareholder Rights Plan provides that each share of Common Stock
issued upon conversion of the Notes at any time prior to the distribution of separate certificates
representing such Rights will be entitled to receive such Rights, then there shall not be any
adjustment to the conversion privilege or Conversion Rate at any time prior to the distribution of
separate certificates representing such Rights. If, however, prior to any conversion, the Rights
have separated from the Common Stock, the Conversion Rate shall be adjusted at the time of
separation as if the Company distributed to all holders of Common Stock the Company’s assets, debt
securities or rights as described in Section 7.04(c) hereof, subject to readjustment in the event
of the expiration or termination of such Rights.



     (b) In the event that the Company distributes rights or warrants pursuant to any shareholder
rights plan to all holders of its Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company’s capital stock, including Common Stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a specified event or
events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock;
(ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common
Stock, then such rights or warrants shall be deemed not to have been distributed for purposes of
Section 7.04(c) (and no adjustment to the Base Conversion Rate under Section 7.04(c) 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
Base Conversion Rate shall be made under Section 7.04(c); provided, however, no person (including a
participant in a group within the meaning of Section 13(d)(3) of the Exchange Act) whose actions or
ownership caused the separation of the Rights from the Common Stock shall be entitled to such
adjustments. 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 Base Conversion Rate under Section 7.04(c) was made, (1) in the case of any
such rights or warrants that shall all have been redeemed or repurchased without exercise by any
holders thereof, the Base Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or
been terminated without exercise by any holders thereof, the Base Conversion Rate shall be
readjusted as if such rights and warrants had not been



37









 






issued; provided, however, no person
(including a participant in a group within the meaning of Section 13(d) of the Exchange Act) whose
actions or ownership caused the separation of the Rights from the Common Stock shall be entitled to
such adjustments.



ARTICLE 8

Repurchase of Notes at Option of Holders




Section 8.01 Repurchase at Option of Holders upon a Fundamental Change.




     (a) In the event a Fundamental Change shall occur at any time when any Notes remain
outstanding, each Noteholder shall have the right, at such holder’s option, to require the Company
to purchase all of such holders’ Notes or any portion of the principal amount thereof that is equal
to $1,000 or an integral multiple thereof on a date specified by the Company (the “Fundamental
Change Repurchase Date”) that is not less than 20 nor more than 35 Business Days (or any longer
period required by law) after the date on which the Company gives the notice of such Fundamental
Change pursuant to clause (b) below, at a purchase price in cash equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). If such
Fundamental Change Repurchase Date falls after an Interest Record Date and on or prior to the
corresponding Interest Payment Date, the Company shall instead pay the principal amount to the
Noteholders surrendering the Notes for repurchase pursuant to this Section 8.01, and pay the full
amount of accrued and unpaid interest payable on such Interest Payment Date to the holder of record
on the close of business on the corresponding Interest Record Date. Repurchases of Notes under
this Section 8.01 shall be made on the Fundamental Change Repurchase Date, at the option of the
holder thereof, upon:




     (i) delivery to the Paying Agent by a holder of a duly completed notice in the form set
forth on the reverse of the Note as Exhibit C thereto (the “Fundamental Change Repurchase
Notice”) on or prior to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date; and




     (ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after
delivery of the Fundamental Change Repurchase Notice (together with all necessary
endorsements) at the corporate trust office of the Paying Agent in the United States, such
book-entry transfer or 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 8.01 only if the Note so
delivered to the Paying Agent shall conform in all respects to the description thereof in
the related Fundamental Change Repurchase Notice.



     The Fundamental Change Repurchase Notice shall state:




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




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




          (C) that the Notes are to be repurchased by the Company pursuant to the applicable
provisions of the Notes and this Supplemental Indenture; provided, however, that if the
Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply
with appropriate Depositary procedures.



38









 





     Any repurchase by the Company contemplated pursuant to the provisions of this Section 8.01
shall be consummated by the payment of the Fundamental Change Repurchase Price promptly following
the later of the Business Day following the Fundamental Change Repurchase Date and the time of the
book-entry transfer or delivery of the Note as described in Section 8.03(a).



     Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 8.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 8.02
below.



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



     (b) Within 15 Business Days after the occurrence of a Fundamental Change, the Company shall
give to the Trustee, the Paying Agent and the Conversion Agent and provide or cause to be provided
to all holders of record of the Notes a written notice (the “Fundamental Change Company Notice”) of
the occurrence of the Effective Date of the Fundamental Change and of the repurchase right at the
option of the holders arising as a result thereof. Simultaneously with the providing of such
notice, the Company will also publish a notice containing the information set forth in the
Fundamental Change Company Notice 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 that time.



     Each Fundamental Change Company Notice shall specify:




     (i) the events causing the Fundamental Change;




     (ii) the effective date of the Fundamental Change;




     (iii) the last date on which a holder may exercise the repurchase right set forth in
this Section 8.01;




     (iv) the Fundamental Change Repurchase Price;




     (v) the Fundamental Change Repurchase Date;




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




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




     (viii) if applicable, that the Notes 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 the terms hereof;




     (ix) that the holder must exercise the repurchase right set forth in this Section 8.01
on or prior to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);



39









 






     (x) that the holder shall have the right to withdraw any Notes surrendered prior to the
Fundamental Change Expiration Time; and




     (xi) the procedures that holders must follow to require the Company to repurchase their
Notes.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 8.01.



     (c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of
the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated,
and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date
(except in the case of an acceleration resulting from a default by the Company in the payment of
the Fundamental Change Repurchase Price with respect to such Notes).



     (d) In connection with any purchase offer, the Company will, to the extent applicable:




     (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other applicable
tender offer rules under the Exchange Act;




     (ii) file a Schedule TO or any successor or similar schedule, if required under the
Exchange Act; and




     (iii) otherwise comply with all applicable U.S. federal and state securities laws in
connection with any offer by the Company to purchase the Notes.



Section 8.02 Withdrawal of a Fundamental Change Repurchase Notice.




     (a) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the corporate trust office of the Paying Agent in accordance with the
Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date, as the case may be, specifying:




     (i) the certificate number, if any, of the Note in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary information if the Note in
respect of which such notice of withdrawal is being submitted is represented by a Global
Note;




     (ii) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted; and




     (iii) the principal amount, if any, of such Note 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 Notes are not in
certificated form, the notice must comply with appropriate procedures of the Depositary.



Section 8.03 Deposit of Fundamental Change Repurchase Price.




     (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company,
or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as
provided in Section 606 of the Base Indenture) on or prior to 11:00 a.m., New York City time, on
the



40









 







Business Day following the Fundamental Change Repurchase Date, an amount of money sufficient to
repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase
Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by
the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the
Fundamental Change Expiration Time) will be made on the later of (i) the Business Day following the
Fundamental Change Repurchase Date with respect to such Note (provided the holder has satisfied the
conditions in Section 8.01) and (ii) the time of book-entry transfer or the delivery of such Note
to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner
required by Section 8.01, by mailing checks for the amount payable to the holders of such Notes
entitled thereto as they shall appear in the Note Register; provided, however, that payments to the
Depositary shall be made by wire transfer of immediately available funds to the account of the
Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand
by the Company, return to the Company any funds in excess of the Fundamental Change Repurchase
Price.



     (b) If by 11:00 a.m., New York City time, on the Business Day following the Fundamental Change
Date the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make
payment on all the Notes or portions thereof that are to be repurchased, then (i) such Notes will
cease to be outstanding and interest, if any, will cease to accrue on such Notes (whether or not
book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or
Paying Agent) and (ii) all other rights of the holders of such Notes will terminate (other than the
right to receive the Fundamental Change Repurchase Price upon delivery or transfer of the Notes).



     (c) Upon surrender of a Note that is to be repurchased in part pursuant to Section 8.01, the
Company shall execute and the Trustee shall authenticate and deliver to the holder a new Note in an
authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.



ARTICLE 9

Subsidiary Guarantees




Section 9.01 Future Subsidiary Guarantors. If any Subsidiary of the Company guarantees or
becomes a co-obligor with respect to any indebtedness of the Company or another Subsidiary
Guarantor for borrowed money other than indebtedness under the Senior Credit Facilities and the
Notes such Subsidiary will be required to Guarantee the Notes equally and ratably with such other
indebtedness pursuant to a supplement to the Indenture in the form attached hereto as Exhibit E.



Section 9.02 Mergers, Etc: No Subsidiary Guarantor may consolidate with or merge with or into
(whether or not such Subsidiary Guarantor is the surviving Person) another Person (other than the
Company or another Subsidiary Guarantor), whether or not affiliated with such Subsidiary Guarantor,
unless



     (a) the Person formed by or surviving any such consolidation or merger (if other than such
Subsidiary Guarantor) shall execute a supplement to the Indenture providing for a Guarantee and
deliver an Opinion of Counsel satisfactory to the Trustee to the effect that such transaction is
permitted; and



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



Section 9.03 Release. Notwithstanding any other provisions of this Supplemental
Indenture, in the event of a sale or other disposition (including by way of merger or
consolidation) of all or substantially all of the assets or all of the capital stock of any
Subsidiary Guarantor owned by the Company or the Company’s Subsidiaries, then such Subsidiary
Guarantor will be released and relieved of any obligations 


41









 






pursuant to Article 9 hereof and any supplemental indenture executed in accordance with Section 9.01 hereof. In addition, if no Events
of Default have occurred and are continuing and a Subsidiary Guarantor ceases to guarantee or be a
co-obligor with respect to any indebtedness of the Company or another Subsidiary Guarantor for
borrowed money, other than indebtedness under the Senior Credit Facilities and the Notes, then upon
delivery to the Trustee of an Officers’ Certificate to the foregoing effect, the Subsidiary
Guarantees will be released and any obligations pursuant to Article 9 hereof and any supplemental
indenture executed in accordance with Section 9.01 hereof will cease to apply, subject to
reinstatement if the foregoing release condition is no longer satisfied.



ARTICLE 10

Defeasance and Discharge Section




Section 10.01 No Defeasance. Article 13 of the Base Indenture shall not apply to the Notes.




Section 10.02 Discharge of the Indenture. Section 4.01 of the Base Indenture shall not apply to the
Notes. However, the Company may satisfy and discharge its obligations under the Indenture by
delivering to the Trustee for cancellation all outstanding Notes or by depositing with the Trustee,
the Paying Agent or the Conversion Agent, if applicable, after all outstanding Notes have become
due and payable, whether at the Maturity Date or a Fundamental Change Purchase Date, or upon
conversion or otherwise, cash and shares of common stock or other consideration (as applicable
under the terms hereof) sufficient to pay all amounts due under the outstanding Notes and paying
all other sums payable under the Indenture.



ARTICLE 11

No Personal Liability of Directors, Officers, Employees and Stockholders




Section 11.01 No Personal Liability of Directors, Officers, Employees and Stockholders




     With respect to the Notes, Section 1501 of the Base Indenture shall be replaced in its
entirety with the following:



     “No director, officer, employee, incorporator or stockholder of the Company, as such, will
have any liability for any obligations of the Company under the Notes, the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of
Notes by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.”



ARTICLE 12

Sinking Funds




Section 12.01 No Sinking Funds. Article 12 of the Base Indenture shall not apply to the Notes.




42









 





ARTICLE 13

Miscellaneous Provisions




Section 13.01 Ratification and Incorporation of Base Indenture. As supplemented hereby, the
Base Indenture is in all respects ratified and confirmed, and the Base Indenture and this
Supplemental Indenture shall be read, taken and construed as one and the same instrument.



Section 13.02 Governing Law. NOTWITHSTANDING SECTION 112 OF THE BASE INDENTURE THIS INDENTURE
AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.



Section 13.03 No Security Interest Created. Nothing in this Supplemental Indenture or in the
Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



Section 13.04 Trust Indenture Act. This Supplemental Indenture is hereby made subject to, and
shall be governed by, the provisions of the Trust Indenture Act required to be part of and to
govern indentures qualified under the Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof that is required to be included in an
indenture qualified under the Trust Indenture Act, such required provision shall control.



Section 13.05 Benefits of Indenture. Nothing in this Supplemental Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent,
any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder
or the Noteholders, any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture.



Section 13.06 Calculations. Except as otherwise provided herein, the Company will be
responsible for making all calculations called for under this Supplemental Indenture and the Notes
(including, but not limited to, any determinations of the Last Reported Sale Price of the Common
Stock, the Applicable Stock Price, accrued interest, the Daily Conversion Rate Fractions,
conversion rate adjustments, and Settlement Amounts). The Company shall make all such calculations
in good faith and, absent manifest error; its calculations will be final and binding on
Noteholders. The Company shall provide a schedule of its calculations to each of the Trustee (and
if different, 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 shall deliver a copy of such schedule to any Noteholder upon the written request of
such Noteholder.



Section 13.07 Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.



Section 13.08 Execution in Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.



Section 13.09 Severability. In the event any provision of this Supplemental Indenture or in
the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the
validity, legality or enforceability of the remaining provisions shall not in any way be affected
or impaired.



[Signature Page Follows]




43









 








IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be signed on
their behalf by their duly authorized representatives as of the date first above written.



	 	 	 	 	 
	 	 	THE COMPANY:
	 
	 	 	 	 
	 	 	FERRO CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John T. Bingle
	 

	 	 	 	 
	 

	 	 	 	Name: John T. Bingle
	 

	 	 	 	Title: Treasurer
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	TRUSTEE:
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,
	 	 	as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Holly Pattison
	 

	 	 	 	 
	 

	 	 	 	Name: Holly Pattison
	 

	 	 	 	Title: Vice President







44












 





EXHIBIT A




[FORM OF FACE OF NOTE]




     [UNLESS AND UNTIL THIS GLOBAL SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY (“DTC”) TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]



FERRO CORPORATION

6.50% Convertible Senior Note due 2013




	 	 	 	 	 	 	 	 	 
	No. 	 	 	 	 	 	$ 
	 

	 
	 	 	 	 	 





	 	 	 	 	 
	CUSIP No. 
	 	 	 	 
	 	 	 	 





     Ferro Corporation, a corporation duly organized and validly existing under the laws of the
State of Ohio (herein called the “Company,” which term includes any successor corporation or other
entity under the Indenture (as defined on the reverse hereof)), for value received, hereby promises
to pay to           , or registered assigns, the principal sum of $           Dollars (which
amount may from time to time be increased or decreased to such other principal amounts by
adjustments made on the records of the Trustee or the Custodian of the Depositary as set forth in
Schedule A hereto, in accordance with the rules and procedures of the Depositary) on August 15,
2013.



     This Note shall bear interest at the rate of 6.50% per year (subject to increase as set forth
in Section 4.02 of the First Supplemental Indenture) from August 19, 2008 to August 15, 2013, or
until such date on which this Security is converted, purchased or as otherwise provided herein.
Interest is payable semi-annually in arrears on each February 15 and August 15, commencing February
15, 2009, to Holders of record at the close of business on the preceding February 1 and August 1
(whether or not such day is a Business Day), respectively.



     Payment of the principal of and premium, if any, and accrued and unpaid interest on this Note
shall be made at the office or agency of the Company maintained for that purpose in the United
States, 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. Each installment of interest may be paid
by check mailed to such Holder’s address as it appears in the Note Register; provided, however,
that, with respect to any Holder with an aggregate principal amount in excess of $1,000,000, at the
application of such Holder in writing to the Trustee and Paying Agent (if different from the
Trustee) not later than the relevant Interest Record Date, accrued and unpaid interest on such
Holder’s Notes shall be paid by wire transfer in immediately available funds to such Holder’s
account in the United States, which application shall remain in effect until the Holder notifies
the Trustee and Paying Agent to the contrary; provided that any payment to the



A-1









 




Depositary or its nominee shall be paid by wire transfer in immediately available funds in
accordance with the wire transfer instructions supplied by the Depositary or its nominee from time
to time to the Trustee and Paying Agent (if different from Trustee).




     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Note the right to convert this
Note into cash and Common Stock, if any, on the terms set forth in the Indenture.



     This Note shall be governed by the laws of the State of New York.



     This Note 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.



[Remainder of page intentionally left blank]




A-2









 







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




	 	 	 	 	 
	 	FERRO CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Attest:




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	[Secretary/Assistant Secretary]	 	 






	 	 	 	 	 
	Dated:
	 	 	 	 
	 	 	 	 	 





TRUSTEE’S CERTIFICATE OF AUTHENTICATION




     This is one of the Notes of the series designated therein referred to in the within-mentioned
Indenture.



	 	 	 	 	 
	 	U. S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Authorized Signature 	 
	 	 	 	 
	 




A-3









 





[FORM OF REVERSE OF NOTE]

FERRO CORPORATION

6.50% Convertible Senior Note due 2013




     This Note is one of a duly authorized issue of Securities of the Company, designated as its
6.50% Convertible Senior Notes due 2013 (herein called the “Notes”), issued or to be issued under
and pursuant to an Indenture dated as of March 5, 2008 by the Company and U.S. Bank National
Association (herein called the “Trustee”) (herein called the “Base Indenture”), as supplemented by
the First Supplemental Indenture dated as of August 19, 2008 by the Company and the Trustee (herein
called the “First Supplemental Indenture” and the Base Indenture, as supplemented by the First
Supplemental Indenture, the “Indenture”) to which Indenture 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 Notes. Additional Notes may be issued in an
unlimited aggregate principal amount, subject to certain conditions specified in the Indenture.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, except as set forth in Section 4.02 of the First Supplemental Indenture, the principal
of, premium, if any, and interest accrued through the date of such declaration on all Notes may be
declared, by either the Trustee or Holders of not less than 25% in aggregate principal amount of
Notes then outstanding, and upon said declaration shall become, due and payable, in the manner,
with the effect and subject to the conditions provided in the Indenture. In the case of certain
events of bankruptcy or insolvency relating to the Company or a significant subsidiary of the
Company, the principal of, premium, if any, and interest accrued through the date of such event on
all Notes shall automatically become and be immediately due and payable.



     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Notes, and in other circumstances, with
the consent of the Holders of not less than a majority of outstanding principal amount of the
Notes, evidenced as provided in the Indenture, to execute supplemental indentures modifying the
terms of the Indenture and the Notes as described therein. The Indenture also provides that,
subject to certain exceptions, the Holders of a majority of outstanding principal amount of the
Notes may, on behalf of the Holders of all of the Notes, waive any past default or Event of Default
under the Indenture and its consequences.



     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and accrued and unpaid interest on this Note at the place, at the
respective times, at the rate and in the lawful money herein prescribed.



     The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. At the office or agency of the Company referred to on the
face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may
be exchanged for a like aggregate principal amount of Notes of other authorized denominations,
without payment of any service charge but, if required by the Company or Trustee, with payment of a
sum sufficient to cover any tax, assessments or other governmental charges that may be imposed in
connection therewith as a result of the name of the Holder of the new Notes issued upon such
exchange of Notes being different from the name of the Holder of the old Notes surrendered for such
exchange.



     The Notes are not subject to redemption through the operation of any sinking fund.



A-4









 





     Upon the occurrence of a Fundamental Change the Holder has the right, at such Holder’s option,
to require the Company to repurchase all of such Holder’s Notes or any portion thereof (in
principal amounts of $1,000 or integral multiples thereof) at the price specified in the Indenture.



     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the Business Day immediately preceding the Maturity Date, to
convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash and
shares of Common Stock, if any, based on the Applicable Conversion Rate specified in the Indenture,
as adjusted from time to time as provided in the Indenture.



     Terms used in this Note and defined in the Indenture are used herein as therein defined.



A-5









 





SCHEDULE A




FERRO CORPORATION

6.50% Convertible Senior Notes due 2013




     The initial principal amount of this Global Note is $          . The following increases or
decreases in this Global Note have been made:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	this Global Note	 	 	Signature of	 
	 	 	in Principal Amount	 	 	in Principal Amount	 	 	following such	 	 	authorized signatory of	 
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	decrease or increase	 	 	Trustee or Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






A-6











 





EXHIBIT B




[FORM OF NOTICE OF CONVERSION]




To:  Ferro Corporation




     The undersigned registered owner of this Note hereby exercises the option to convert this
Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, into cash and, if applicable, shares of Common Stock in accordance with the terms of
the Indenture referred to in this Note, and directs that the cash and shares, if applicable, of
Common Stock issuable and deliverable upon such conversion, together with any cash in lieu of
fractional shares, and any Notes representing any unconverted principal amount hereof, be issued
and delivered to the registered holder hereof unless a different name has been indicated below. If
any shares of Common Stock or any portion of this Note not converted are to be issued in the name
of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. Any amount required to be paid to the undersigned on account of interest
accompanies this Note. The undersigned hereby acknowledges that this Notice of Conversion is
irrevocable.



	 	 	 	 	 
	Dated:
	 	 	 	 
	 	 	 	 	 





	 	 	 
	 

	 	Signature(s)
	Signature Guarantee
	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares of Common
Stock are to be issued, or Notes are to be
delivered, other than to and in the name of
the registered holder.
	 	 
	 
	 	 
	Fill in for registration of shares if to be
issued, and Notes if to be delivered, other
than to and in the name of the registered
holder:
	 	 
	 
	 	 
	(Name)
	 	 
	 
	 	 
	(Street Address)
	 	 
	 
	 	 
	(City, State and Zip Code)

	 	 
	Please print name and address
	 	 






B-1









 






	 	 	 
	 

	 	Principal amount to be converted (if less than
all): $          ,000
	 
	 	 
	 

	 	NOTICE: The above signature(s) of the
holder(s) hereof must correspond with the name
as written upon the face of the Note in every
particular without alteration or enlargement
or any change whatever.
	 
	 	 
	 

	 	Social Security or Other Taxpayer
	 

	 	Identification Number







B-2









 








EXHIBIT C




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]




To:  Ferro Corporation




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Ferro Corporation (the “Company”) as to the occurrence of a Fundamental Change with respect to the
Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to repay to the registered holder hereof in accordance with the applicable provisions of
the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion
thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2)
if such Fundamental Change Repurchase Date does not fall during the period after a Interest Record
Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest
thereon to, but excluding, such Fundamental Change Repurchase Date. In the case of certificated
Notes, the certificate numbers of the Notes to be repurchased are as set forth below:



	 	 	 	 	 
	Dated:
	 	 	 	 
	 	 	 	 	 





	 	 	 
	 

	 	Signature(s)
	 
	 	 
	 

	 	Social Security or Other Taxpayer

Identification Number
	 
	 	 
	 

	 	Principal amount to be repaid (if less than
all): $          ,000
	 
	 	 
	 

	 	NOTICE: The above signature(s) of the
holder(s) hereof must correspond with the name
as written upon the face of the Note in every
particular without alteration or enlargement
or any change whatever.







C-1









 








EXHIBIT D




[FORM OF ASSIGNMENT AND TRANSFER]




For value received            hereby sell(s), assign(s) and transfer(s) unto           
(Please insert social security or Taxpayer Identification Number of assignee) the within Note, and
hereby irrevocably constitutes and appoints            attorney to transfer the said Note on the
books of the Company, with full power of substitution in the premises.



	 	 	 	 	 
	Dated:
	 	 	 	 
	 	 	 	 	 





	 	 	 
	Signature(s)

	 	 
	 
	 	 
	Signature Guarantee
	 	 
	 
	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 Notes are to be
delivered, other than to and in the name of
the registered holder.
	 	 
	 
	 	 
	NOTICE: The signature on the assignment must correspond with the name as written upon the face of
the Note in every particular without alteration or enlargement or any change whatever.
	 	 






D-1













 





EXHIBIT E




[FORM OF SUBSIDIARY GUARANTEE]




     Supplemental Indenture (this “Supplemental Indenture”), dated as of ____________,
200___, by
____________ (the “Subsidiary Guarantor”), a subsidiary of Ferro Corporation (or
its permitted successor), an Ohio corporation (the “Company”), the Company and
____________, as trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of
____________, 200___ providing for the issuance of ___% Convertible Senior
Notes due 20___ (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Subsidiary Guarantor
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary
Guarantor shall unconditionally guarantee all of the Company’s Obligations under the Notes and the
Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.



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



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



     2. Agreement to Guarantee. The Subsidiary Guarantor hereby agrees to provide an
unconditional Guarantee on the following terms and conditions:



     (a) Subject to this Section 2, the Subsidiary Guarantor hereby, jointly and severally,
unconditionally guarantees to each holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (i) the principal of, premium and Additional Interest, if any, and interest on, the
Notes will be promptly paid in full when due, whether at maturity, by acceleration,
conversion or otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Noteholders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and




     (ii) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration, conversion or otherwise.



E-1









 





     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantor will be jointly and severally obligated to pay the same
immediately. The Subsidiary Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.



     (b) The Subsidiary Guarantor hereby agrees that its obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Supplemental
Indenture, the absence of any action to enforce the same, any waiver or consent by any holder of
the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against
the Company, any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The Subsidiary Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not
be discharged except by complete performance of the obligations contained in the Notes and the
Indenture, as supplemented by this Supplemental Indenture.



     (c) If any Noteholder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantor or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Subsidiary Guarantor, any amount paid by either to
the Trustee or such Noteholder, this Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.



     (d) The Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation
in relation to the Noteholders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby. The Subsidiary Guarantor further agrees that, as
between the Subsidiary Guarantor, on the one hand, and the Noteholders and the Trustee, on the
other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in
the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such obligations as provided the Indenture,
such obligations (whether or not due and payable) will forthwith become due and payable by the
Subsidiary Guarantor for the purpose of this Note Guarantee. The Subsidiary Guarantor will have
the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Noteholders under the Note Guarantee.



     3. Execution and Delivery of the Note Guarantee. To evidence its Note Guarantee set
forth in Section 2 hereof, the Subsidiary Guarantor hereby agrees that a notation of such Note
Guarantee substantially in the form attached as Annex A hereto will be endorsed by an Officer of
such Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.



     4. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Subsidiary Guarantor, as such, shall have any
liability for any obligations of the Company or any Subsidiary Guarantor under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against public policy.



E-2









 





     5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.



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



     7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary
and the Company.



E-3









 





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



     Dated: ____________, 20___



	 	 	 	 	 
	 	 	[Subsidiary Guarantor]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[Company]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[Existing Subsidiary Guarantors]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	[Trustee],
	 	 	    as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory







E-4









 








Annex A




[FORM OF NOTATION OF SUBSIDIARY GUARANTEE]




     For value received, the Subsidiary Guarantor (which term includes any successor Person under
the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in
the Supplemental Indenture dated as of
____________, 200___ (the “Supplemental Indenture”) among
____________, (the
“Company”), ____________ (the “Subsidiary Guarantor”)[, the
existing Subsidiary Guarantors party thereto] and ____________, as trustee (the
“Trustee”), (a) the due and punctual payment of the principal of, premium and Additional Interest,
if any, and interest on, the Notes, whether at maturity, by acceleration, redemption, conversion or
otherwise, the due and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other obligations of the
Company to the Noteholders or the Trustee all in accordance with the terms of the Supplemental
Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligations of the Subsidiary Guarantor to the holders of Notes and to the
Trustee are expressly set forth in Section 2 of the Supplemental Indenture.



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



	 	 	 	 	 
	 	 	[Name of Subsidiary Guarantor]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:







E-5