Exhibit
4.1


 


EXECUTION VERSION




 





 


AFFILIATED MANAGERS
GROUP, INC.


 


AND


 


THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,


 


as Trustee


 


INDENTURE


 


Dated as of August 6,
2008


 


3.95% Convertible Senior
Notes due 2038




 





 

















 


	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
  Section 1.02.

  	
  Incorporation by Reference of Trust Indenture Act

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
  EXCHANGE OF NOTES

  	
  12

  
	
   

  	
  Section 2.01.

  	
  Designation and Amount

  	
  12

  
	
   

  	
  Section 2.02.

  	
  Form of Notes

  	
  12

  
	
   

  	
  Section 2.03.

  	
  Date and Denomination of Notes; Payments of Interest

  	
  13

  
	
   

  	
  Section 2.04.

  	
  Payments of Contingent Interest and Additional
  Interest

  	
  14

  
	
   

  	
  Section 2.05.

  	
  Execution, Authentication and Delivery of Notes

  	
  15

  
	
   

  	
  Section 2.06.

  	
  Exchange and Registration of Transfer of Notes;
  Restrictions on Transfer; Depositary

  	
  15

  
	
   

  	
  Section 2.07.

  	
  Mutilated, Destroyed, Lost or Stolen Notes

  	
  21

  
	
   

  	
  Section 2.08.

  	
  Temporary Notes

  	
  22

  
	
   

  	
  Section 2.09.

  	
  Cancellation of Notes Paid, Etc.

  	
  22

  
	
   

  	
  Section 2.10.

  	
  CUSIP Numbers

  	
  23

  
	
   

  	
  Section 2.11.

  	
  Open-Market Repurchases

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REDEMPTION

  	
  23

  
	
   

  	
  Section 3.01.

  	
  Company’s Right to Redeem; Notices to Trustee

  	
  23

  
	
   

  	
  Section 3.02.

  	
  Selection of Notes to Be Redeemed

  	
  24

  
	
   

  	
  Section 3.03.

  	
  Notice of Redemption

  	
  24

  
	
   

  	
  Section 3.04.

  	
  Effect of Notice of Redemption

  	
  25

  
	
   

  	
  Section 3.05.

  	
  Deposit of Redemption Price

  	
  25

  
	
   

  	
  Section 3.06.

  	
  Notes Redeemed in Part

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
  26

  
	
   

  	
  Section 4.01.

  	
  Satisfaction and Discharge

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  PARTICULAR COVENANTS OF THE COMPANY

  	
  26

  
	
   

  	
  Section 5.01.

  	
  Payment of Principal, Premium, Interest, Contingent
  Interest and Additional Interest

  	
  26

  
	
   

  	
  Section 5.02.

  	
  Maintenance of Office or Agency

  	
  26

  
	
   

  	
  Section 5.03.

  	
  Appointments to Fill Vacancies in Trustee’s Office

  	
  27

  
	
   

  	
  Section 5.04.

  	
  Provisions as to Paying Agent

  	
  27

  
	
   

  	
  Section 5.05.

  	
  Existence

  	
  29

  
	
   

  	
  Section 5.06.

  	
  Rule 144A Information Requirement and Annual
  Reports

  	
  29

  
	
   

  	
  Section 5.07.

  	
  Stay, Extension and Usury Laws

  	
  29

  
	
   

  	
  Section 5.08.

  	
  Compliance Certificate; Statements as to Defaults

  	
  29

  
	
   

  	
  Section 5.09.

  	
  Additional Interest Notice

  	
  30

  
	
   

  	
  Section 5.10.

  	
  Additional Interest Payable Upon Failure to Report
  or Delegend

  	
  30

  
	
   

  	
  Section 5.11.

  	
  Resale of Certain Notes

  	
  31

  
	
   

  	
  Section 5.12.

  	
  Further Instruments and Acts

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  LISTS OF NOTEHOLDERS AND REPORTS BY THE COMPANY
  AND THE TRUSTEE

  	
  31

  
	
   

  	
  Section 6.01.

  	
  Lists of Noteholders

  	
  31

  
	
   

  	
  Section 6.02.

  	
  Preservation and Disclosure of Lists

  	
  31

  
	
   

  	
  Section 6.03.

  	
  Reports by Trustee

  	
  32

  



 


i

















 


	
  ARTICLE VII

  	
  DEFAULTS AND REMEDIES

  	
  32

  
	
   

  	
  Section 7.01.

  	
  Events of Default

  	
  32

  
	
   

  	
  Section 7.02.

  	
  Payments of Notes on Default; Suit Therefor

  	
  34

  
	
   

  	
  Section 7.03.

  	
  Application of Monies Collected by Trustee

  	
  35

  
	
   

  	
  Section 7.04.

  	
  Proceedings by Noteholders

  	
  36

  
	
   

  	
  Section 7.05.

  	
  Proceedings by Trustee

  	
  37

  
	
   

  	
  Section 7.06.

  	
  Remedies Cumulative and Continuing

  	
  37

  
	
   

  	
  Section 7.07.

  	
  Direction of Proceedings and Waiver of Defaults by
  Majority of Noteholders

  	
  37

  
	
   

  	
  Section 7.08.

  	
  Notice of Defaults

  	
  38

  
	
   

  	
  Section 7.09.

  	
  Undertaking to Pay Costs

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  CONCERNING THE TRUSTEE

  	
  39

  
	
   

  	
  Section 8.01.

  	
  Duties and Responsibilities of Trustee

  	
  39

  
	
   

  	
  Section 8.02.

  	
  Reliance on
  Documents, Opinions, Etc.

  	
  41

  
	
   

  	
  Section 8.03.

  	
  No Responsibility for Recitals, Etc.

  	
  42

  
	
   

  	
  Section 8.04.

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

  	
  42

  
	
   

  	
  Section 8.05.

  	
  Monies to Be Held in Trust

  	
  42

  
	
   

  	
  Section 8.06.

  	
  Compensation and Expenses of Trustee

  	
  42

  
	
   

  	
  Section 8.07.

  	
  Officers’ Certificate as Evidence

  	
  43

  
	
   

  	
  Section 8.08.

  	
  Conflicting Interests of Trustee

  	
  43

  
	
   

  	
  Section 8.09.

  	
  Eligibility of Trustee

  	
  43

  
	
   

  	
  Section 8.10.

  	
  Resignation or Removal of Trustee

  	
  43

  
	
   

  	
  Section 8.11.

  	
  Acceptance by Successor Trustee

  	
  45

  
	
   

  	
  Section 8.12.

  	
  Succession by Merger, Etc.

  	
  45

  
	
   

  	
  Section 8.13.

  	
  Limitation on Rights of Trustee as Creditor

  	
  46

  
	
   

  	
  Section 8.14.

  	
  Trustee’s Application for Instructions from the
  Company

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CONCERNING THE NOTEHOLDERS

  	
  46

  
	
   

  	
  Section 9.01.

  	
  Action by Noteholders

  	
  46

  
	
   

  	
  Section 9.02.

  	
  Proof of Execution by Noteholders

  	
  47

  
	
   

  	
  Section 9.03.

  	
  Who Are Deemed Absolute Owners

  	
  47

  
	
   

  	
  Section 9.04.

  	
  Company-Owned Notes Disregarded

  	
  47

  
	
   

  	
  Section 9.05.

  	
  Revocation of Consents; Future Holders Bound

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  NOTEHOLDERS’ MEETINGS

  	
  48

  
	
   

  	
  Section 10.01.

  	
  Purpose of Meetings

  	
  48

  
	
   

  	
  Section 10.02.

  	
  Call of Meetings by Trustee

  	
  48

  
	
   

  	
  Section 10.03.

  	
  Call of Meetings by Company or Noteholders

  	
  49

  
	
   

  	
  Section 10.04.

  	
  Qualifications for Voting

  	
  49

  
	
   

  	
  Section 10.05.

  	
  Regulations

  	
  49

  
	
   

  	
  Section 10.06.

  	
  Voting

  	
  49

  
	
   

  	
  Section 10.07.

  	
  No Delay of Rights by Meeting

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SUPPLEMENTAL INDENTURES

  	
  50

  
	
   

  	
  Section 11.01.

  	
  Supplemental Indentures Without Consent of
  Noteholders

  	
  50

  
	
   

  	
  Section 11.02.

  	
  Supplemental Indentures With Consent of Noteholders

  	
  51

  
	
   

  	
  Section 11.03.

  	
  Effect of Supplemental Indentures

  	
  52

  
	
   

  	
  Section 11.04.

  	
  Notation on Notes

  	
  52

  



 


ii

















 


	
   

  	
  Section 11.05.

  	
  Evidence of Compliance of Supplemental Indenture to
  Be Furnished Trustee

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND
  LEASE

  	
  53

  
	
   

  	
  Section 12.01.

  	
  Company May Consolidate, Etc. on Certain Terms

  	
  53

  
	
   

  	
  Section 12.02.

  	
  Successor Corporation to Be Substituted

  	
  53

  
	
   

  	
  Section 12.03.

  	
  Opinion of Counsel to Be Given Trustee

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
  OFFICERS AND DIRECTORS

  	
  54

  
	
   

  	
  Section 13.01.

  	
  Indenture and Notes Solely Corporate Obligations

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  CONTINGENT INTEREST

  	
  55

  
	
   

  	
  Section 14.01.

  	
  Contingent Interest

  	
  55

  
	
   

  	
  Section 14.02.

  	
  Payment of Contingent Interest

  	
  55

  
	
   

  	
  Section 14.03.

  	
  Contingent Interest Notification

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  CONVERSION OF NOTES

  	
  56

  
	
   

  	
  Section 15.01.

  	
  Conversion Privilege

  	
  56

  
	
   

  	
  Section 15.02.

  	
  Conversion Procedure

  	
  58

  
	
   

  	
  Section 15.03.

  	
  Increased Conversion Rate Applicable to Certain
  Notes Surrendered in Connection with Make-Whole Fundamental Changes

  	
  62

  
	
   

  	
  Section 15.04.

  	
  Adjustment of Conversion Rate

  	
  64

  
	
   

  	
  Section 15.05.

  	
  Shares to Be Fully Paid

  	
  74

  
	
   

  	
  Section 15.06.

  	
  Effect of Reclassification, Consolidation, Merger or
  Sale

  	
  74

  
	
   

  	
  Section 15.07.

  	
  Certain Covenants

  	
  77

  
	
   

  	
  Section 15.08.

  	
  Responsibility of Trustee

  	
  77

  
	
   

  	
  Section 15.09.

  	
  Notice to Holders Prior to Certain Actions

  	
  78

  
	
   

  	
  Section 15.10.

  	
  Stockholder Rights Plans

  	
  78

  
	
   

  	
  Section 15.11.

  	
  Exchange in Lieu of Conversion

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  REPURCHASE OF NOTES AT OPTION OF HOLDERS

  	
  79

  
	
   

  	
  Section 16.01.

  	
  Repurchase of Notes by the Company at Option of the
  Holder

  	
  79

  
	
   

  	
  Section 16.02.

  	
  Withdrawal of Repurchase Notice

  	
  82

  
	
   

  	
  Section 16.03.

  	
  Deposit of Repurchase Price

  	
  82

  
	
   

  	
  Section 16.04.

  	
  Repurchase at Option of Holders upon a Fundamental
  Change

  	
  83

  
	
   

  	
  Section 16.05.

  	
  Withdrawal of Fundamental Change Repurchase Notice

  	
  86

  
	
   

  	
  Section 16.06.

  	
  Deposit of Fundamental Change Repurchase Price

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVII

  	
  TAX TREATMENT

  	
  87

  
	
   

  	
  Section 17.01.

  	
  Contingent Debt Tax Treatment

  	
  87

  
	
   

  	
  Section 17.02.

  	
  Calculation of Tax Original Issue Discount

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVIII

  	
  MISCELLANEOUS PROVISIONS

  	
  88

  
	
   

  	
  Section 18.01.

  	
  Provisions Binding on Company’s Successors

  	
  88

  
	
   

  	
  Section 18.02.

  	
  Official Acts by Successor Corporation

  	
  88

  
	
   

  	
  Section 18.03.

  	
  Addresses for Notices, Etc.

  	
  88

  
	
   

  	
  Section 18.04.

  	
  Governing Law

  	
  89

  
	
   

  	
  Section 18.05.

  	
  Evidence of Compliance with Conditions Precedent;
  Certificates and Opinions of Counsel to Trustee

  	
  89

  



 


iii

















 


	
   

  	
  Section 18.06.

  	
  Legal Holidays

  	
  89

  
	
   

  	
  Section 18.07.

  	
  No Security Interest Created

  	
  90

  
	
   

  	
  Section 18.08.

  	
  Trust Indenture Act

  	
  90

  
	
   

  	
  Section 18.09.

  	
  Benefits of Indenture

  	
  90

  
	
   

  	
  Section 18.10.

  	
  Table of Contents, Headings, Etc.

  	
  90

  
	
   

  	
  Section 18.11.

  	
  Authenticating Agent

  	
  90

  
	
   

  	
  Section 18.12.

  	
  Execution in Counterparts

  	
  91

  
	
   

  	
  Section 18.13.

  	
  Severability

  	
  91

  
	
   

  	
  Section 18.14.

  	
  Waiver of Jury Trial

  	
  91

  
	
   

  	
  Section 18.15.

  	
  Force Majeure

  	
  91

  
	
   

  	
  Section 18.16.

  	
  Calculations in Respect of the Notes

  	
  92

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Form of Note

  	
   

  	
  A-1

  
	
  Exhibit B

  	
   

  	
  Form of Tax Legend

  	
   

  	
  B-1

  



 


iv

















 


INDENTURE dated as of August 6, 2008 between Affiliated Managers
Group, Inc., a Delaware corporation, as issuer (hereinafter sometimes
called the “Company”, as more fully set forth in Section 1.01) and The
Bank of New York Mellon Trust Company, N.A., a national banking association, as
trustee (hereinafter sometimes called the “Trustee”, as more fully set forth in
Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 3.95% Convertible Senior Notes due 2038
(hereinafter sometimes called the “Notes”, as more fully set forth in Section 1.01),
in an aggregate principal amount not to exceed $400,000,000 (or $460,000,000 if
the Initial Purchaser exercises its option to purchase additional Notes in full
as set forth in the Purchase Agreement), and in order to provide the terms and
conditions upon which the Notes are to be authenticated, issued and delivered,
the Company has duly authorized the execution and delivery of this Indenture;
and


 


WHEREAS, the Form of Note, the certificate of authentication to be
borne by each Note, the Form of Notice of Conversion, the Form of
Repurchase Notice, 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; and


 


WHEREAS, all acts and 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 in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents
a valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration
of the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:


 


ARTICLE I


 


DEFINITIONS


 


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


 


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


 


(ii)           “or”,
where the context so requires, may mean “and/or”;


 

















 


(iii)          all
accounting terms not otherwise defined herein have the meaning assigned to them
in accordance with U.S. generally accepted accounting principles in effect from
time to time;


 


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


 


(v)           references
to currency shall mean the lawful currency of the United State of America.


 


“Additional Interest”
means any additional interest payable pursuant to Section 5.10 or any
Supplementary Interest payable pursuant to Section 7.01.


 


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


 


“Board of Directors” means
the board of directors of the Company or a committee of such board duly
authorized to act for it hereunder.


 


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


 


“Business Day” means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which the
banking institutions in The City of New York are authorized or obligated by law
or executive order to close or be closed.


 


“Capital Stock” means, for
any entity, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.


 


“Cash Settlement Averaging Period”
means, with respect to any Note surrendered for conversion, the twenty
consecutive Trading Day period beginning on and including the third Trading Day
after the Conversion Date for such Note; provided
that, with respect to any Conversion Date occurring during the
period beginning on February 15, 2038, and ending at close of business on
the Business Day immediately prior to the Maturity Date, the “Cash Settlement
Averaging Period” means the twenty consecutive Trading Days beginning on and
including the twenty-second Scheduled Trading Day prior to the Maturity Date.


 


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


 


“Commission” means the
Securities and Exchange Commission.


 


2

















 


“Common Equity” of any
Person means Capital Stock of such Person that is generally entitled (a) to
vote in the election of directors of such Person or (b) if such Person is
not a corporation, to vote or otherwise participate in the selection of the
governing body, partners, managers or others that will control the management
or policies of such Person.


 


“Common Stock” means,
subject to Section 15.06, shares of common stock of the Company, par value
$0.01 per share, at the date of this 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 Affiliated
Managers Group, Inc., a Delaware corporation, and subject to the
provisions of Article 12, shall include its successors and assigns.


 


“Company Order” means a
written order of the Company, signed by any two Officers and delivered to the
Trustee.


 


“Contingent Debt Regulations”
has the meaning specified in Section 17.01(a).


 


“Contingent Interest”
means such interest payable as described in Article 14.


 


“Contingent Interest Period”
means (i) the period commencing on, and including, August 15, 2013
and ending on, and including, February 14, 2014, and (ii) each
six-month period from and including February 15 to and including August 14
or from and including August 15 to and including February 14
thereafter.


 


“Continuing Director”
means a director who either was a member of the Board of Directors on July 30,
2008 or who becomes a member of the Board of Directors subsequent to that date
and whose election, appointment or nomination for election by the stockholders
of the Company is duly approved by a majority of the continuing directors on
the Board of Directors 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 in which such individual is named as nominee for director.


 


“Conversion Agent” shall
have the meaning specified in Section 5.02.


 


“Conversion Date” shall
have the meaning specified in Section 15.02(c).


 


“Conversion Obligation”
shall have the meaning specified in Section 15.01(a).


 


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


 


“Conversion Rate” shall
have the meaning specified in Section 15.01(a).


 


3

















 


“Conversion Trigger Price”
shall have the meaning specified in Section 15.01(b)(iv).


 


“Corporate Trust Office”
means the designated office of the Trustee at which at any time its corporate
trust business shall be administered, which office at the date hereof is
located at 222 Berkeley Street, 2nd Floor, Boston, Massachusetts 02116, or such
other address as the Trustee may designate from time to time by notice to the
Noteholders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Noteholders and the Company).


 


“Custodian” means The Bank
of New York Mellon Trust Company, N.A., as custodian for The Depository Trust
Company, with respect to the Global Notes, or any successor entity thereto.


 


“Daily Conversion Value” means,
for each of the twenty consecutive Trading Days during the Cash Settlement
Averaging Period, one-twentieth (1/20th) of the product of (a) the
then-applicable Conversion Rate on such Trading Day and (b) the Daily VWAP
of the Common Stock on such Trading Day.


 


“Daily Measurement Value”
is equal to the Specified Dollar Amount, divided by 20.


 


“Daily Settlement Amount,”
for each of the twenty consecutive Trading Days during the Cash Settlement
Averaging Period, shall consist of:


 


(a)           cash equal to the lesser
of the Daily Measurement Value and the Daily Conversion Value for such Trading
Day; and


 


(b)           to the extent such
Daily Conversion Value for such Trading Day exceeds the Daily Measurement
Value, a number of shares of Common Stock equal to the Daily Share Amount.


 


“Daily Share Amount”
means, to the extent the Daily Conversion Value exceeds the Daily Measurement
Value, (i) the difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (ii) the Daily VWAP of the Common Stock for
such Trading Day.


 


“Daily VWAP” for the
Common Stock means the per share volume-weighted average price on the New York
Stock Exchange as displayed under the heading “Bloomberg VWAP” on Bloomberg page “AMG.N
<equity> AQR” (or any successor page thereto) in respect of the
period from the scheduled open of trading until the scheduled close of trading
of the primary trading session on such Trading Day (or if such volume-weighted
average price is unavailable, the market value of one share of the Common Stock
on such Trading Day as determined in a commercially reasonable manner by the
Board of Directors, in consultation with a nationally recognized investment
banking firm, using a volume-weighted method) and will be determined without
regard to after hours trading or any other trading outside of the regular
trading session.


 


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


 


4

















 


“Defaulted Interest” means
any interest on any Note that is payable, but is not punctually paid or duly
provided for, on any February 15 or August 15.


 


“Depositary” means, with
respect to the Global Notes the Person specified in Section 2.06 as the
Depositary with respect to such Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, “Depositary” shall mean or include such successor.


 


“Designated Institution”
shall have the meaning specified in Section 15.11.


 


“Distributed Property”
shall have the meaning specified in Section 15.04(c).


 


“Effective Date” shall
have the meaning specified in Section 15.03(a).


 


“Event of Default” shall
have the meaning specified in Section 7.01.


 


“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.


 


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


 


“Exchange Election” shall
have the meaning specified in Section 15.11.


 


“Expiration Date” shall
have the meaning specified in Section 15.04(e).


 


“Fiscal Quarter” means a
fiscal quarter of any Fiscal Year.


 


“Fiscal Year” means a fiscal
year of the Company, currently ending on December 31 of each calendar
year.


 


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


 


(a)           any
“person” or “group” (within the meaning of Section 13(d) of the
Exchange Act) other than the Company or its Subsidiaries files a Schedule TO or
any schedule, form or report under the Exchange Act disclosing that such person
or group has become the direct or indirect ultimate “beneficial owner,” as
defined in Rule 13d-3 under the Exchange Act, of the Company’s Common
Equity representing more than 50% of the voting power of the Company’s Common
Equity;


 


(b)           consummation
of any share exchange, exchange offer, tender offer, consolidation or merger of
the Company pursuant to which the Common Stock will be converted into cash,
securities or other property or any sale, lease or other transfer in one
transaction or a series of transactions of all or substantially all of the
consolidated assets of the Company and its Subsidiaries, taken as a whole, to
any Person other than one of the Company’s Subsidiaries; 


 


5

















 


provided however, that a share exchange,
consolidation or merger transaction in which the holders of more than 50% of
the total voting power of all shares of the Company’s Capital Stock entitled to
vote generally in elections of directors immediately prior to such transaction
have the right to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Capital Stock entitled to vote generally in
elections of directors of the continuing or surviving Person immediately after
giving effect to such transaction, will not constitute a “Fundamental Change”;


 


(c)           the
first day on which Continuing Directors cease to constitute at least a majority
of the Board of Directors;


 


(d)           the
stockholders of the Company approve any plan or proposal for the liquidation or
dissolution of the Company; or


 


(e)           the
Common Stock ceases to be listed on a United States national securities
exchange,


 


provided  however,
in the case of a transaction or event described in clause (b) above, if at
least 90% of the consideration received or to be received by holders of the
Common Stock, excluding cash payments for fractional shares, in such
transaction or transactions consists of shares of Publicly Traded Securities
and as a result of such transaction or transactions, the Notes become
convertible into such Publicly Traded Securities, excluding cash payments for
fractional shares (subject to the provisions of Section 15.02(a)), such
event shall not be a Fundamental Change and, for the avoidance of doubt, an
event that is not a Fundamental Change pursuant to clause (b) above as a
result of this proviso shall not be a Fundamental Change solely because such
event could also be described by clause (a) above.


 


For purposes of this definition, whether a “person” is a “beneficial
owner” shall be determined in accordance with Rule 13d-3 under
the Exchange Act and “person”
includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of
the Exchange Act.


 


“Fundamental Change Company Notice”
shall have the meaning specified in Section 16.04(b).


 


“Fundamental Change Expiration Time”
shall have the meaning specified in Section 16.04(b)(ix).


 


“Fundamental Change Repurchase Date”
shall have the meaning specified in Section 16.04(a).


 


“Fundamental Change Repurchase Notice”
shall have the meaning specified in Section 16.04(a)(i).


 


“Fundamental Change Repurchase Price”
shall have the meaning specified in Section 16.04(a).


 


“Global Note” shall have
the meaning specified in Section 2.06(b).


 


6
















 


“Indenture” means this
instrument as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.


 


“Initial Purchaser” means
Banc of America Securities LLC.


 


“Interest Payment Date”
means each February 15 and August 15 of each year, beginning on February 15,
2009; provided  however, that if any Interest Payment Date
falls on a date that is not a Business Day, such payment of interest (or
principal in the case of the Maturity Date) will be postponed until the next
succeeding Business Day, and no interest or other amount will be paid as a
result of such postponement.


 


“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 securities exchange on which the Common Stock is listed
for trading.  The last reported sale
price will be determined without reference to after-hours or extended market
trading.  If the Common Stock is not
listed for trading on a U.S. national securities exchange on the relevant date,
then the “Last Reported Sale Price” will be the closing sale price (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) for the Common Stock on the relevant date as reported by the OTC
Bulletin Board or, if not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market on the relevant date as reported by Pink
Sheets LLC or a 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.


 


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


 


“Make-Whole Conversion Rate
Adjustment” shall have the meaning specified in Section 15.03(a).


 


“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change as
described in clause (a) or (b) of the definition thereof (in the case
of any fundamental change described in clause (b) of the definition
thereof, determined without regard to the proviso in such definition, but
subject to the paragraph immediately following clause (e) of the
definition thereof)..


 


“Market Disruption Event”
means (a) a failure by the primary exchange or quotation system on which
the Common Stock trades or is quoted, as the case may be, to open for trading
during its regular trading session or (b) the occurrence or existence
prior to 1:00 p.m. New York City time on any Trading Day for the Common
Stock for an aggregate one-half hour period of any suspension or limitation
imposed on trading (by reason of movements in price exceeding 


 


7

















 


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.


 


“Maturity Date” means August 15,
2038.


 


“Measurement Period” shall
have the meaning specified in Section 15.01(b)(i).


 


“Merger Event” shall have
the meaning specified in Section 15.06.


 


“Note” or “Notes” shall mean any note or notes, as the
case may be, authenticated and delivered under this Indenture.


 


“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 2.06(a).


 


“Note Registrar” shall
have the meaning specified in Section 2.06(a).


 


“Notice of Conversion”
shall have the meaning specified in Section 15.02(b).


 


“Notice of Default” shall
have the meaning specified in Section 7.01(f).


 


“Offering Memorandum”
means the final offering memorandum dated July 30, 2008 relating to the
offering and sale of the Notes.


 


“Officer” means, with
respect to the Company, the Chairman of the Board of Directors, the Chief
Executive Officer, a President, a Senior Vice President, the Chief Operating
Officer, the Chief Financial Officer, the General Counsel, the Treasurer or a
Secretary.


 


“Officers’ Certificate,”
when used with respect to the Company, means a certificate signed by two
Officers and delivered to the Trustee. 
Each such certificate shall include the statements provided for in Section 18.05
if and to the extent required by the provisions of such Section.  One of the officers giving an Officers’
Certificate pursuant to Section 5.08 shall be the principal executive,
financial or accounting officer of the Company.


 


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


 


“Opinion of Counsel” means
an opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, or other counsel acceptable to the Trustee, that is
delivered to the Trustee.  Each such
opinion shall include the statements provided for in Section 18.05 if and
to the extent required by the provisions of such Section.


 


“outstanding,” when used
with reference to Notes, shall, subject to the provisions of Section 9.04,
mean, as of any particular time, all Notes authenticated and delivered by the
Trustee under this Indenture, except:


 


8

















 


(a)           Notes theretofore
canceled by the Trustee or accepted by the Trustee for cancellation;


 


(b)           Notes, or portions
thereof, for the payment or repurchase of which monies in the necessary amount
shall have been deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent); provided that, if any such Note is
repurchased, the holder thereof shall have delivered a Repurchase Notice or a
Fundamental Change Repurchase Notice in accordance with Section 16.01 and Section 16.04,
respectively;


 


(c)           Notes that have been
paid pursuant to Section 2.07 or Notes in lieu of which, or in
substitution for which, other Notes shall have been authenticated and delivered
pursuant to the terms of Section 2.07 unless proof satisfactory to the
Trustee is presented that any such Notes are held by protected purchasers in
due course; and


 


(d)           Notes converted
pursuant to Article 15.


 


“Paying Agent” shall have
the meaning specified in Section 5.02.


 


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


 


“Portal Market” means The
Portal Market operated by The NASDAQ Stock Market, Inc. or any successor
thereto.


 


“Predecessor Note” of any
particular Note means every previous Note evidencing all or a portion of the
same debt as that evidenced by such particular Note; and, for the purposes of
this definition, any Note authenticated and delivered under Section 2.07
in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note that it replaces.


 


“Publicly Traded Securities”
means shares of common stock or common equity interests that are traded on a
national securities exchange or that will be so traded when issued or exchanged
in connection with a Fundamental Change described in clause (b) of the
definition thereof.


 


“Purchase Agreement” means
that certain Purchase Agreement, dated as of July 30, 2008, between the
Company and the Initial Purchaser.


 


“Record Date” shall have
the meaning specified in Section 15.04(f).


 


“Redemption Date” means
the date specified in a notice of redemption on which the Notes may be redeemed
in accordance with the terms of the Notes and this Indenture.


 


“Redemption Price” shall
have the meaning specified in Section 3.01.


 


“Reference Property” shall
have the meaning specified in Section 15.06(b).


 


9

















 


“Repurchase Company Notice”
shall have the meaning specified in Section 16.01(a).


 


“Repurchase Date” shall
have the meaning specified in Section 16.01(a).


 


“Repurchase Expiration Time”
shall have the meaning specified in Section 16.01(a)(vii).


 


“Repurchase Notice” shall
have the meaning specified in Section 16.01(b).


 


“Repurchase Price” shall
have the meaning specified in Section 16.01(a).


 


“Resale Restriction Termination Date”
shall have the meaning specified in Section 2.06(d).


 


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


 


“Restricted Securities”
shall have the meaning specified in Section 2.06(d).


 


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


 


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


 


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


 


“Settlement Amount” has
the meaning specified in Section 15.02(a).


 


“Settlement Method” means,
with respect to a conversion of Notes, the relative proportions of cash and/or
shares of Common Stock with which such conversion is settled under this
Indenture, as elected (or deemed elected) by the Company.


 


“Settlement Notice” has
the meaning specified in Section 15.02(a)(iii).


 


“Specified Dollar Amount”
means the amount of cash per $1,000 principal amount of converted Note
specified in the Settlement Notice related to such converted Note.


 


“Spin-Off” shall have the
meaning specified in Section 15.04(c).


 


“Stock Price” means (a) in
the case of a Make-Whole Fundamental Change described in clause (b) of the
definition of 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 


 


10

















 


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 Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of
the event occurs, during such five consecutive Trading Days.


 


“Subsidiary” means, with
respect to any Person, any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers, general partners or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person; (ii) such
Person and one or more Subsidiaries of such Person; or (iii) one or more
Subsidiaries of such Person.


 


“Successor Company” shall
have the meaning specified in Section 12.01(a).


 


“Supplementary Interest”
shall have the meaning specified in Section 7.01.


 


“Tax Original Issue Discount”
means the amount of ordinary interest income on a Note that must be accrued as
original issue discount for U.S. federal income tax purposes pursuant to
Treasury regulation Section 1.1275-4 or any successor thereto.


 


“Trading Day” means a day
during which trading in the Common Stock generally occurs and there is no
Market Disruption Event.


 


“Trading Price” with
respect to the Notes, on any date of determination means the average of the
secondary market bid quotations obtained by the Trustee for $5.0 million
principal amount of Notes at approximately 3:30 p.m., New York City time,
on such determination date from three independent U.S. nationally recognized
securities dealers selected by the Company; provided
that, if three such bids cannot reasonably be obtained by the
Trustee, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Trustee,
that one bid shall be used.  If the
Trustee cannot reasonably obtain at least one bid for $5.0 million principal
amount of Notes from a U.S. nationally recognized securities dealer, then (i) for
purposes of any determination of whether Contingent Interest is payable
pursuant to Article 14 or of the amount of any Contingent Interest, the
Trading Price of the Notes on any date of determination shall equal the product
of (x) the applicable Conversion Rate for the Notes and (y) the average
Last Reported Sale Price of the Common Stock for the five Trading Days ending
on such date of determination and (ii) for purposes of any determination
of whether the condition to conversion under Section 15.01(b)(i) is
met, the Trading Price per $1,000 principal amount of Notes will be deemed to
be less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the Conversion Rate.


 


“Trigger Event” shall have
the meaning specified in Section 15.04(c).


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as it was in force at the
date of execution of this Indenture, except as provided in Section 11.03
and 


 


11

















 


Section 15.06; 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.


 


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


 


“Weighted Average Consideration”
shall have the meaning specified in Section 15.06(c)(iv).


 


Section 1.02. 
Incorporation by Reference of Trust Indenture Act.  Whenever this Indenture refers to a provision
of the Trust Indenture Act, the provision is incorporated by reference in, and
made a part of, this Indenture.  All
terms used in this Indenture that are defined by the Trust Indenture Act,
defined by reference in the Trust Indenture Act to another statute or defined
by the rules and regulations promulgated by the Commission under the Trust
Indenture Act have the meanings so assigned to them therein.


 


ARTICLE II


 


ISSUE, DESCRIPTION, EXECUTION,

REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01. 
Designation and Amount. 
The Notes shall be designated as the “3.95% Convertible Senior Notes due
2038.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is limited to $400,000,000 (or $460,000,000 if
the Initial Purchaser exercises its option to purchase additional Notes in full
as set forth in the Purchase Agreement), subject to Section 2.11 and
except for Notes authenticated and delivered upon registration or transfer of,
or in exchange for, or in lieu of other Notes pursuant to Section 2.06, Section 2.07,
Section 2.08, Section 3.06, Section 11.04, Section 15.02, Section 16.03
and Section 16.06 hereof.


 


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 Indenture.


 


Any Global Note may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian, the
Depositary or by The NASDAQ Stock Market, Inc. in order for the Notes to
be tradable on The Portal Market or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant to Rule 144A
or required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange or automated
quotation system upon which the Notes may be listed or traded or designated for
issuance or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes are subject.


 


12

















 


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
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
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
redemptions, 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
Indenture.  Payment of principal, accrued
and unpaid interest, Contingent Interest, if any, and Additional Interest, if
any, and premium, if any (including any Redemption Price, Repurchase Price or
Fundamental Change 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.


 


The terms and provisions contained in the Form of Note attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.


 


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 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 Note) 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 (including Contingent Interest, if any, and Additional
Interest, if any) shall be payable at the office or agency of the Company maintained
by the Company for such purposes in The Borough of Manhattan, City of New York,
which shall initially be the office of the Paying Agent at 101 Barclay Street,
New York, New York 10286, Attention: 
Corporate Trust Administration. 
The Company shall pay interest (including Contingent Interest, if any,
and Additional Interest, if any) (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 in excess of 


 


13

















 


$2,000,000, 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.


 


Any Defaulted Interest shall forthwith cease to be payable to the
Noteholder on the relevant Interest Record Date by virtue of its having been
such Noteholder, and such Defaulted Interest shall be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment (which shall be not less than twenty-five
days after the receipt by the Trustee of such notice, unless the Trustee shall
consent to an earlier date), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.  Thereupon the Company shall fix a special
record date for the payment of such Defaulted Interest which shall be not more
than fifteen days and not less than ten days prior to the date of the proposed
payment, and not less than ten days after the receipt by the Trustee of the
notice of the proposed payment.  The
Company shall promptly notify the Trustee of such special record date and the
Trustee, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first-class mail, postage prepaid, to each holder at its
address as it appears in the Note Register, not less than ten days prior to
such special record date.  Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such special record date and shall no
longer be payable pursuant to the following clause (2) of this Section 2.03.


 


(2)           The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Notes may be listed or designated for issuance,
and upon such notice as may be required by such exchange or automated quotation
system, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.


 


Section 2.04. 
Payments of Contingent Interest and Additional Interest.  Whenever in this Indenture there is
mentioned, in any context, the payment of interest on, or in respect of, any
Note, such mention shall be deemed to include mention of the payment of “Contingent
Interest” and “Additional Interest” both as provided for in this Indenture to
the extent that, in such context, Contingent Interest or Additional Interest
is, was or would be payable in respect thereof pursuant 


 


14

















 


to the provisions of this Indenture or express mention
of the payment of Contingent Interest (if applicable) or Additional Interest
(if applicable) in any provisions hereof shall not be construed as excluding
Contingent Interest or Additional Interest, as the case may be, in those
provisions hereof where such express mention is not made.


 


Section 2.05. 
Execution, Authentication and Delivery of Notes.  The Notes shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of any of its
Officers.


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes, without any
further action by the Company hereunder.


 


Only such Notes as shall bear thereon a certificate of authentication
substantially in the form set forth on the form of Note attached as Exhibit A
hereto, executed manually by an authorized signatory of the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 18.11),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose.  Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by the Company
shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.


 


In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Note, shall be the proper
officers of the Company, although at the date of the execution of this
Indenture any such person was not such an officer.


 


Section 2.06.  Exchange and Registration of Transfer of
Notes; Restrictions on Transfer; 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 5.02 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 of
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”
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 5.02.


 


Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.06, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the 


 


15

















 


designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


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 5.02.  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.


 


All Notes presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company, the Trustee, the Note Registrar or any co-registrar) be duly endorsed,
or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and duly executed, by the Noteholder thereof or its
attorney-in-fact duly authorized in writing.


 


No service charge shall be charged to the Noteholder for any exchange
or registration of transfer of Notes, but the Company or the Trustee may
require 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 Noteholder of the new Notes issued upon such exchange or
registration of transfer of Notes being different from the name of the
Noteholder of the old Notes presented or surrendered for such exchange or
registration of transfer.


 


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, (ii) any
Note selected for redemption or, if a portion of any Note is selected for
redemption, such portion thereof selected for redemption or (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn)
in accordance with Article 16 hereof.


 


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


 


(b)           So
long as the Notes are eligible for book-entry settlement with the Depositary,
unless otherwise required by law, all Notes shall be represented by one or more
Notes in global form (each, a “Global Note”)
registered in the name of the Depositary or the nominee of the Depositary.  The transfer and exchange of beneficial
interests in a Global Note that does not involve the issuance of a Note in certificated
form, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.


 


(c)           Notwithstanding
any other provisions of this Indenture (other than the provisions set forth in
this Section 2.06(c)), a Global Note may not be transferred as a whole or
in part except (i) 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 


 


16

















 


to
a successor Depositary or a nominee of such successor Depositary and (ii) for
transfers of portions of a Global Note in certificated form made upon request
of a member of, or a participant in, the Depositary (for itself or on behalf of
a beneficial owner) by written notice given to the Trustee by or on behalf of
the Depositary in accordance with customary procedures of the Depositary and in
compliance with this Section.


 


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 Note.  Initially, the Global Note 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 Cede &
Co.


 


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 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 days or (iii) an
Event of Default in respect of the Notes has occurred and is continuing, upon
the request of the beneficial owner of the Notes, 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 certificated form to each such 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.


 


Notes in certificated form issued in exchange for all or a part of the
Global Note pursuant to this Section 2.06(c) 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 Notes in certificated form,
converted, canceled, redeemed, repurchased or transferred to a transferee who
receives Notes in certificated form 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.


 


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.


 


17
















 


(d)           Every Note that bears or is required
under this Section 2.06(d) to bear the legend set forth in this Section 2.06(d)
(together with any Common Stock issued upon conversion of the Notes and
required to bear the legend set forth in Section 2.06(e), collectively,
the “Restricted Securities”) shall
be subject to the restrictions on transfer set forth in this Section 2.06(d) (including
the legend set forth below), unless such restrictions on transfer shall be
eliminated or otherwise waived by written consent of the Company, and the
holder of each such Restricted Security, by such holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer.  As used in Section 2.06(d) and Section 2.06(e),
the term “transfer” encompasses any sale, pledge, transfer or other disposition
whatsoever of any Restricted Security.


 


Until the date (the “Resale
Restriction Termination Date”) that is the later of (1) the
date that is one year after the last date of original issuance of the Notes,
and (2) such later date, if any, on which the Notes are freely tradable
pursuant to Rule 144 under the Securities Act without volume restrictions
by holders other than Affiliates of the Company, any certificate evidencing
such Note (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof which
shall bear the legend set forth in Section 2.06(e), if applicable) shall
bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been
declared effective under the Securities Act and that continues to be effective
at the time of such transfer, pursuant to the exemption from registration
provided by Rule 144 or any similar provision then in force under the
Securities Act, or unless otherwise agreed by the Company in writing, with
notice thereof to the Trustee):


 


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


 


THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”)
WHICH IS THE LATER OF ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND
THE DATE ON WHICH THIS SECURITY IS FREELY TRADABLE PURSUANT TO RULE 144
UNDER THE SECURITIES ACT WITHOUT VOLUME RESTRICTIONS BY HOLDERS OTHER THAN
AFFILIATES OF AFFILIATED MANAGERS GROUP, INC. (THE “COMPANY”) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN 


 


18

















 


RELIANCE ON RULE 144A, (C) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED OR OTHERWISE BECOME
EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 OR ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE
COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE.


 


No transfer of any Note prior to the Resale Restriction Termination
Date will be registered by the Note Registrar unless the applicable box on the Form of
Assignment and Transfer has been checked.


 


Any Note (or security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with their
terms may, upon surrender of such Note for exchange to the Note Registrar in
accordance with the provisions of this Section 2.06, be exchanged for a
new Note or Notes, of like tenor and aggregate principal amount, which shall
not bear the restrictive legend required by this Section 2.06(d).  The Company shall notify the Trustee upon the
occurrence of the Resale Restriction Termination Date (which notice shall
confirm that neither the Company nor any “affiliates” (as defined in Rule 144
under the Securities Act) have resold any of the Notes) and promptly after a
registration statement with respect to the Notes or any Common Stock issued
upon conversion of the Notes has been declared effective under the Securities
Act.


 


(e)           Until the Resale Restriction Termination
Date, any stock certificate representing Common Stock issued upon conversion of
such Note shall bear a legend in substantially the following form (unless the
Note or such Common Stock has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act
and that continues to be effective at the time of such transfer or pursuant to
the exemption from registration provided by Rule 144 under the Securities
Act or any similar provision then in force under the Securities Act, or such
Common Stock has been issued upon conversion of Notes that have been
transferred pursuant to a registration statement that has become or been
declared effective under the Securities Act and that continues to be effective
at the time of such transfer or pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or unless otherwise agreed
by the Company with written notice thereof to the Trustee and any transfer
agent for the Common Stock):


 


THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFEFED, SOLD, 


 


19

















 


ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.


 


THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”)
WHICH IS THE LATER OF ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND
THE DATE ON WHICH THIS SECURITY IS FREELY TRADABLE PURSUANT TO RULE 144
UNDER THE SECURITIES ACT WITHOUT VOLUME RESTRICTIONS BY HOLDERS OTHER THAN
AFFILIATES OF AFFILIATED MANAGERS GROUP, INC. (THE “COMPANY”) ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED OR OTHERWISE BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 OR ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE COMPANY AND THE TRANSFER
AGENT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.


 


Any such Common Stock as to which such restrictions on transfer shall
have expired in accordance with their terms may, upon surrender of the
certificates representing such shares of Common Stock for exchange in
accordance with the procedures of the transfer agent for the Common Stock, be
exchanged for a new certificate or certificates for a like aggregate number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.06(e).


 


(f)            Any Note or Common Stock issued upon
the conversion or exchange of a Note that is purchased or owned by the Company
or any Affiliate thereof may not be resold by the Company or such Affiliate
unless registered under the Securities Act or resold pursuant to an exemption
from the registration requirements of the Securities Act in a transaction that
results in such Notes or Common Stock, as the case may be, no longer being “restricted
securities” (as defined under Rule 144).


 


20

















 


(g)           Notwithstanding any provision of Section 2.06
to the contrary, in the event Rule 144 as promulgated under the Securities
Act (or any successor rule) is amended to change the one-year holding period
thereunder (or the corresponding period under any successor rule), from and
after receipt by the Trustee of the Officers’ Certificate and Opinion of
Counsel provided for in this Section 2.06(g), (i) each reference in Section 2.06(d) to
“one year” and in the restrictive legend set forth in such paragraph to “ONE
YEAR” shall be deemed for all purposes hereof to be references to such changed
period, (ii) each reference in Section 2.06(e) to “one year” and
in the restrictive legend set forth in such paragraph to “ONE YEAR” shall be
deemed for all purposes hereof to be references to such changed period and (iii) all
corresponding references in the Notes (including the definition of Resale
Restriction Termination Date) and the restrictive legends thereon shall be
deemed for all purposes hereof to be references to such changed period; provided that such changes shall not
become effective if they are otherwise prohibited by, or would otherwise cause
a violation of, the then-applicable federal securities laws.  The provisions of this Section 2.06(g) will
not be effective until such time as the Opinion of Counsel and Officers’
Certificate have been received by the Trustee hereunder.  This Section 2.06(g) shall apply to
successive amendments to Rule 144 (or any successor rule) changing the
holding period thereunder.


 


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


 


(i)            The Trustee shall have no
responsibility for any actions taken or not taken by the Depositary.


 


Section 2.07.  Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its written request the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and deliver, a new Note, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen.  In every case the applicant for
a substituted Note shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless from any loss, liability, cost
or expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require.  Upon the issuance of
any substitute Note, the Company or the Trustee may require the payment by the
holder of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in relation thereto and 


 


21

















 


any other expenses connected therewith. 
In case any Note that has matured or is about to mature or is about to
be redeemed or has been tendered for repurchase pursuant to Article 16
hereof or is about to be converted into cash, shares of Common Stock or a
combination of cash and shares of Common Stock, as applicable, shall become
mutilated or be destroyed, lost or stolen, the Company may, in its sole
discretion, instead of issuing a substitute Note, pay or authorize the payment
of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, evidence satisfactory to the
Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence of their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.


 


Every substitute Note issued pursuant to the provisions of this Section 2.07
by virtue of the fact that any Note is destroyed, lost or stolen shall constitute
an additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations
set forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.  To the
extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment or conversion or repurchase of mutilated, destroyed,
lost or stolen Notes and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment or conversion of negotiable
instruments or other securities without their surrender.


 


Section 2.08.  Temporary Notes.  Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed).  Temporary Notes shall be issuable in any
authorized denomination, and substantially in the form of the Notes in
certificated form but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company.  Every such temporary Note shall be executed
by the Company and authenticated by the Trustee or such authenticating agent upon
the same conditions and in substantially the same manner, and with the same
effect, as the Notes in certificated form. 
Without unreasonable delay the Company will execute and deliver to the
Trustee or such authenticating agent Notes in certificated form (other than any
Global Note) and thereupon any or all temporary Notes (other than any Global
Note) may be surrendered in exchange therefor, at each office or agency
maintained by the Company pursuant to Section 5.02 and the Trustee or such
authenticating agent shall authenticate and deliver in exchange for such
temporary Notes an equal aggregate principal amount of Notes in certificated
form.  Such exchange shall be made by the
Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Notes in certificated form authenticated
and delivered hereunder.


 


Section 2.09.  Cancellation of Notes Paid, Etc.  All Notes surrendered for the purpose of
payment, redemption, repurchase, conversion, exchange or registration of
transfer, shall, if surrendered to the Company or any Paying Agent or any Note
Registrar or any Conversion 


 


22

















 


Agent, be surrendered to the Trustee and promptly canceled by it, or,
if surrendered to the Trustee, shall be promptly canceled by it, and no Notes
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture.  The
Trustee shall return canceled Notes to the Company upon the Company’s written
request.  If the Company shall acquire
any of the Notes, such acquisition shall not operate as satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.


 


Section 2.10.  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 2.11.  Open-Market Repurchases.  The Company may from time to time repurchase
the Notes in open market purchases or negotiated transactions without prior
notice to Noteholders.


 


ARTICLE
III



REDEMPTION


 


Section 3.01.  Company’s Right to Redeem; Notices to
Trustee.  Prior to August 15,
2013, the Notes shall not be redeemable at the Company’s option.  On or after August 15, 2013, the Company,
at its option, may redeem the Notes for cash at any time, in whole or in part,
at a redemption price (the “Redemption Price”)
equal to 100% of the principal amount of the Notes redeemed, plus any accrued
and unpaid interest, accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Interest, if any, on the Notes redeemed up to,
but not including, the Redemption Date; provided
however, that, in no event shall
a Redemption Date be a Legal Holiday; provided
further, that, if the Redemption Date is on a date that is after an
Interest Record Date and on or prior to the corresponding Interest Payment
Date, the Redemption Price shall be 100% of the principal amount of the Notes
redeemed but shall not include accrued and unpaid interest, accrued and unpaid
Contingent Interest, if any, and Additional Interest, if any.  Instead, the Company shall pay such interest,
Contingent Interest, if any, and Additional Interest, if any, on the Interest
Payment Date to the holder of record on the corresponding Interest Record
Date.  If the Company elects to redeem
Notes pursuant to this Section 3.01, it shall notify the Trustee in
writing of such election together with the Redemption Date, the Conversion
Rate, the principal amount of Notes to be redeemed and the Redemption
Price.  Notwithstanding the foregoing, no
Notes may be redeemed by the Company if the principal amount of the Notes has
been accelerated and such acceleration has not been rescinded on or prior to the
Redemption Date (except in the case of an acceleration resulting from a default
by the Company in the payment of the Redemption Price with respect to such
Notes).


 


The Company shall give the notice to the Trustee provided for in this Section 3.01
by a Company Order, at least 45 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).


 


23

















 


Section 3.02.  Selection of Notes to Be Redeemed.  If less than all of the Notes are to be
redeemed, unless the procedures of the Depositary provide otherwise, the
Trustee shall select the Notes to be redeemed by lot, on a pro rata basis or by
another method the Trustee considers fair and appropriate (so long as such
method is not prohibited by the rules of any stock exchange or quotation
association on which the Notes are then traded or quoted).  The Trustee may select for redemption
portions of the principal amount of Notes that have denominations larger than
$1,000.


 


Notes and portions of Notes that the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for redemption.  The Trustee shall notify the Company promptly
(but in any case within 7 days of the Company Order referred to in Section 3.01)
of the Notes or portions of the Notes selected to be redeemed and, in the case
of any Notes selected for partial redemption, the method it has chosen for the
selection of the Note.


 


Following a notice of redemption, Notes and portions of Notes are
convertible, pursuant to Section 15.01(b)(v), by the holder until the
close of business on the Business Day prior to the Redemption Date.  If any Note selected for partial redemption
is converted in part before termination of the conversion right with respect to
the portion of the Note so selected, the converted portion of such Note shall be
deemed (so far as may be) to be from the portion selected for redemption.  Notes that have been converted during a
selection of Notes to be redeemed may be treated by the Trustee as outstanding
for the purpose of such selection.


 


Section 3.03.  Notice of Redemption.  At least 30 days but not more than 60 days
before a Redemption Date, the Company shall provide a notice of redemption by
electronic transmission or first-class mail, postage prepaid, to each holder of
Notes to be redeemed.  Simultaneously with
the providing of such notice, the Company shall also publish a notice
containing the information set forth in the notice of redemption 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.


 


The notice shall identify the Notes to be redeemed and shall state
(along with any other information the Company wishes to include):


 


(i)            the
Redemption Date;


 


(ii)           the
Redemption Price;


 


(iii)          the
Conversion Rate and the Conversion Price;


 


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


 


(v)           that
Notes may be converted at any time before the close of business on the Business
Day prior to the Redemption Date;


 


(vi)          that
Notes called for redemption and not converted shall be redeemed on the
Redemption Date;


 


24

















 


(vii)         that
holders who want to convert their Notes must satisfy the requirements set forth
in the Notes;


 


(viii)        that
Notes called for redemption must be surrendered to the Paying Agent (by
effecting book-entry transfer of the Notes or delivering Notes in certificated
form, together with necessary endorsements, as the case may be) to collect the
Redemption Price;


 


(ix)           if
fewer than all of the outstanding Notes are to be redeemed, the certificate
numbers, if any, and principal amounts of the particular Notes to be redeemed;


 


(x)            that,
unless the Company defaults in making payment of such Redemption Price,
interest, Contingent Interest, if any, and Additional Interest, if any, on the
Notes or portions of Notes called for redemption shall cease to accrue from and
after the Redemption Date; and


 


(xi)           the
“CUSIP”, “ISIN” or other similar number(s), as the case may be, of the Notes
being redeemed.


 


At the Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s expense; provided that, the Company makes such
request at least seven Business Days (or such shorter period as may be
satisfactory to the Trustee) prior to the date by which such notice of
redemption must be given to holders in accordance with this Section 3.03.


 


Section 3.04.  Effect of Notice of Redemption.  Once notice of redemption is given, Notes
called for redemption become due and payable on the Redemption Date and at the
Redemption Price stated in the notice except for Notes that are converted in
accordance with the terms of this Indenture. 
Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption
Price stated in the notice and from and after the Redemption Date (unless the
Company shall default in the payment of the Redemption Price) such Notes shall
cease to bear interest, Contingent Interest, if any, and Additional Interest,
if any, and the rights of the holders therein shall terminate (other than the
right to receive the Redemption Price).


 


If any Note shall not be fully and duly paid in accordance herewith
upon redemption, the principal of, and accrued and unpaid interest, accrued and
unpaid Contingent Interest, if any, and accrued and unpaid Additional Interest,
if any, on such Note shall, until paid, bear Interest at the rate borne by such
Note on the principal amount of such Note, and such Note shall continue to be
convertible pursuant to Article 15.


 


Section 3.05.  Deposit of Redemption Price.  Prior to 11:00 a.m. (New York City
time), on the Redemption Date, the Company shall deposit with the Paying Agent
(or if the Company is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of all Notes to be redeemed on
that date other than Notes or portions of Notes called for redemption which on
or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted.  The
Paying Agent shall as promptly as practicable return to the Company any money
not required for that purpose because of conversion of Notes pursuant 


 


25

















 


to Article 15.  If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.


 


Section 3.06.  Notes Redeemed in Part.  Upon surrender of a Note that is redeemed in
part, the Company shall execute and the Trustee shall, without charge,
authenticate and deliver to the holder a new Note in an authorized denomination
equal in principal amount to the unredeemed portion of the Note surrendered.


 


ARTICLE
IV



SATISFACTION AND DISCHARGE


 


Section 4.01.  Satisfaction and Discharge.  This Indenture shall upon request of the
Company contained in an Officers’ Certificate cease to be of further effect,
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when (a) (i) all
Notes theretofore authenticated and delivered (other than (x) Notes which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.07 and (y) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.04(d)) have been delivered to the Trustee for
cancellation; or (ii) the Company has deposited with the Trustee or
delivered to Noteholders, as applicable, after the Notes have become due and
payable, whether at the Maturity Date, any Redemption Date, any Repurchase
Date, any Fundamental Change Repurchase Date, upon conversion or otherwise,
cash or cash and shares of Common Stock, if any (solely to satisfy the Company’s
Conversion Obligation, if applicable), sufficient to pay all of the outstanding
Notes and all other sums due and payable under this Indenture by the Company;
and (b) the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.  Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 8.06 shall survive such satisfaction and
discharge.


 


ARTICLE
V


 


PARTICULAR
COVENANTS OF THE COMPANY


 


Section 5.01.  Payment of Principal, Premium, Interest,
Contingent Interest and Additional Interest.  The Company covenants and agrees that it will
cause to be paid the principal of and premium, if any (including the Redemption
Price, the Repurchase Price and the Fundamental Change Repurchase Price), and
accrued and unpaid interest, Contingent Interest, if any and Additional
Interest, if any, on each of the Notes at the places, at the respective times
and in the manner provided herein and in the Notes.


 


Section 5.02.  Maintenance of Office or Agency.  The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be
surrendered for registration of transfer or exchange or for presentation for
payment, redemption 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 this Indenture may be served.  The 


 


26

















 


Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency.  If at any time the Company shall fail to
maintain 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 an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, which shall initially be the
Trustee’s office at 101 Barclay Street, New York, New York 10286,
Attention:  Corporate Trust
Administration.


 


The Company may also from time to time designate 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 Borough of Manhattan, The
City of New York, for such purposes.  The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.  The terms “Paying Agent” and “Conversion
Agent” include any such additional or other offices or agencies, as applicable.


 


The Company hereby initially designates the Trustee as the Paying
Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust
Office and the office or agency of the Trustee in the Borough of Manhattan each
shall be considered as one such office or agency of the Company for each of the
aforesaid purposes.


 


Section 5.03.  Appointments to Fill Vacancies in Trustee’s
Office.  The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 8.10, a Trustee, so that there shall at all
times be a Trustee hereunder.


 


Section 5.04.  Provisions as to Paying Agent.


 


(a)           If the Company shall appoint a Paying
Agent other than the Trustee, the Company will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 5.04:


 


(i)            that
it will hold all sums held by it as such agent for the payment of the principal
of and premium, if any, and accrued and unpaid interest, Contingent Interest,
if any and Additional Interest, if any, on the Notes in trust for the benefit
of the holders of the Notes;


 


(ii)           that
it will give the Trustee prompt notice of any failure by the Company to make
any payment of the principal of and premium, if any, and accrued and unpaid
interest, Contingent Interest, if any and Additional Interest, if any, on the
Notes when the same shall be due and payable; and


 


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


 


The Company shall, on or before each due date of the principal of, or
premium (including the Redemption Price, the Repurchase Price or the
Fundamental Change Repurchase Price), if any, or accrued and unpaid interest or
Contingent Interest, if any, or Additional Interest, if any, 


 


27

















 


on the Notes, deposit with the Paying Agent a sum sufficient to pay
such principal, premium (including the Redemption Price, the Repurchase Price
or the Fundamental Change Repurchase Price), if any, or accrued and unpaid
interest or Contingent Interest, if any, or Additional Interest, if any, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action; provided
that, if such deposit is made on the due date, such deposit must be
received by the Paying Agent by 11:00 a.m., New York City time, on such
date.


 


(b)           If the Company shall act as its own
Paying Agent, it will, on or before each due date of the principal of, premium
(including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price), if any, accrued and unpaid interest, Contingent
Interest, if any, and Additional Interest, if any, on the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal, premium (including the Redemption Price, the
Repurchase Price and the Fundamental Change Repurchase Price), if any, accrued
and unpaid interest, Contingent Interest, if any, and Additional Interest, if
any, so becoming due and will promptly notify the Trustee in writing of any
failure to take such action and of any failure by the Company to make any
payment of the principal of, premium (including the Redemption Price, the
Repurchase Price and the Fundamental Change Repurchase Price), if any, accrued
and unpaid interest, Contingent Interest, if any, and Additional Interest, if
any, on the Notes when the same shall become due and payable.


 


(c)           Anything in this Section 5.04 to
the contrary notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the
Company or any Paying Agent hereunder as required by this Section 5.04,
such sums to be held by the Trustee upon the trusts herein contained and upon
such payment by the Company or any Paying Agent to the Trustee, the Company or
such Paying Agent shall be released from all further liability with respect to
such sums.


 


(d)           Any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of or premium (including the Redemption Price, the Purchase Price
and the Fundamental Change Repurchase Price), if any, accrued and unpaid
interest, Contingent Interest, if any, and Additional Interest, if any, on any
Note and remaining unclaimed for two years after such principal, premium
(including the Redemption Price, the Repurchase Price or the Fundamental Change
Repurchase Price), interest, Contingent Interest or Additional Interest has
become due and payable shall be paid to the Company on request of the Company
contained in an Officers’ Certificate, or (if then held by the Company) shall
be discharged from such trust; and the holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall, upon the request and at the expense of the Company, cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The Borough of
Manhattan, The City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than thirty days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.


 


28
















 


Section 5.05.  Existence.  Subject to Article 12, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.


 


Section 5.06.  Rule 144A Information Requirement and
Annual Reports.


 


(a)           At any time prior to the Resale
Restriction Termination Date that the Company is not subject to Sections 13 or
15(d) of the Exchange Act, the Company shall promptly provide to the
Trustee and shall, upon written request, provide to any holder, beneficial
owner or prospective purchaser of such Notes or any shares of Common Stock
issued upon conversion of such Notes, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act to facilitate
the resale of such Notes or shares of Common Stock pursuant to Rule 144A
under the Securities Act.  The Company
shall take such further action as any holder or beneficial owner of such Notes
or such Common Stock may reasonably request to the extent required from time to
time to enable such holder or beneficial holder to sell such Notes or shares of
Common Stock in accordance with Rule 144A under the Securities Act, as
such rule may be amended from time to time.


 


(b)           The Company shall deliver to the
Trustee within fifteen days after the same is required to be filed with the
Commission, copies of the quarterly and annual reports and of the information,
documents and other reports, if any, that the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
and, to the extent required by Section 18.08, the Company shall otherwise
comply with the requirements of Section 314(a) of the Trust Indenture
Act.  Any such report, information or
document that the Company files with the Commission through the Commission’s
EDGAR database shall be deemed delivered to the Trustee for purposes of this Section 5.06(b) at
the time of such filing through the EDGAR database.


 


(c)           Delivery of the reports, information
and documents described in clause (b) above to the Trustee is for
informational purposes only, and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on an Officers’ Certificate).  The Trustee shall have no obligation
whatsoever to monitor the Company’s compliance with this Section 5.06.


 


Section 5.07.  Stay, Extension and Usury Laws.  The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law that would prohibit or forgive the Company
from paying all or any portion of the principal of or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or that may affect the covenants or the performance of this Indenture; and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


Section 5.08.  Compliance Certificate; Statements as to
Defaults.  The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company



 


29

















 


(beginning with the fiscal year ending on December 31, 2008) an
Officers’ Certificate stating whether or not the signer thereof has knowledge
of any failure by the Company to comply with all conditions and covenants then
required to be performed under this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if so, specifying each
such failure and the nature thereof.


 


In addition, the Company shall deliver to the Trustee, as soon as
possible, and in any event within thirty days after the Company becomes aware
of the occurrence of any Event of Default or Default, an Officers’ Certificate
setting forth the details of such Event of Default or Default, its status and
the action that the Company proposes to take with respect thereto.


 


Section 5.09.  Additional Interest Notice.  If Additional Interest is payable by the
Company pursuant to Section 5.10 or Section 7.01, the Company shall
deliver to the Trustee 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 a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable.  If the
Company has paid Additional Interest directly to the Persons entitled to it, the
Company shall deliver to the Trustee an Officers’ Certificate setting forth the
particulars of such payment.


 


Section 5.10.  Additional
Interest Payable Upon Failure to Report or Delegend.


 


(a)           If, at any time during the six-month
period beginning on, and including, the date which is six months after the
original issue date of the Notes, the Company fails to timely file any document
or report that the Company is required to file with the Commission (giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act)
pursuant to Section 13 or 15(d) of the Exchange Act, as applicable
(other than current reports on Form 8-K), or the Notes are not otherwise
freely tradable pursuant to Rule 144 by Noteholders other than Affiliates
of the Company, the Company shall pay a one time Additional Interest payment in
respect of the Notes in the amount of 0.25% of the principal amount of Notes
outstanding; provided that the
Company shall have 14 days, in the aggregate, to cure any such late filings
before any Additional Interest shall be payable.  Additional Interest payable pursuant to this Section 5.10(a) will
be payable on the Interest Payment Date following the date on which the late
filing was due (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act).


 


(b)                                 Unless:


 


(i)            the
restrictive legend required by Section 2.06(d) and Section 2.06(e) on
the Notes and any shares of Common Stock issued upon conversion of the Notes
has been removed, and


 


(ii)           the
Notes and any shares of Common Stock issued upon conversion of the Notes are
freely tradable pursuant to Rule 144 under the Securities Act without
volume restrictions by holders other than Affiliates of the Company,


 


as of the 365th day after the last date of original
issuance of the Notes, the Company shall pay Additional Interest on the Notes
at an annual rate equal to 0.25% of the aggregate principal amount of the Notes
outstanding. The Company shall pay such Additional Interest so long as a 


 


30

















 


condition described in either (i) or (ii) of
this Section 5.10(b) continues. 
When neither of such conditions described in either (i) or (ii) of
this Section 5.10(b) continues, Additional Interest shall cease to
accrue and accrued and unpaid Additional Interest through the date of cessation
shall be paid in Cash on the subsequent Interest Payment Date.  In no event shall Additional Interest accrue
at an annual rate in excess of 0.50%, in the aggregate, pursuant to this Section 5.10
and Section 7.01.


 


Section 5.11.  Resale of Certain Notes.  During the period of one year after the last
original issue date of the Notes, the Company shall not, and shall use
reasonable efforts to cause its “affiliates” (as defined under Rule 144
under the Securities Act or any successor provision thereto) not to, resell any
Notes which constitute “restricted securities” under Rule 144 that have
been reacquired by any of them.


 


Section 5.12.  Further Instruments and Acts.  Upon request of the Trustee or as necessary,
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 Indenture.


 


ARTICLE VI



LISTS OF NOTEHOLDERS AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


Section 6.01.  Lists of Noteholders.  The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semi-annually, not more than
fifteen days after each February 1 and August 1 in each year
beginning with February 1, 2009, and at such other times as the Trustee
may request in writing, within thirty days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in
order to enable it to timely provide any notice to be provided by it
hereunder), a list in such form as the Trustee may reasonably require of the
names and addresses of the Noteholders as of a date not more than fifteen days
(or such other date as the Trustee may reasonably request in order to so
provide any such notices) prior to the time such information is furnished,
except that no such list need be furnished so long as the Trustee is acting as
Note Registrar.


 


Section 6.02.  Preservation and Disclosure of Lists.


 


(a)           The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and addresses of the Noteholders contained in the most recent list furnished to
it as provided in Section 6.01 or maintained by the Trustee in its
capacity as Note Registrar, if so acting. 
The Trustee may destroy any list furnished to it as provided in Section 6.01
upon receipt of a new list so furnished.


 


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


 


(c)           Every Noteholder, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be 


 


31

















 


held accountable by reason of any disclosure of information as to names
and addresses of Noteholders made pursuant to the Trust Indenture Act.


 


Section 6.03.  Reports by Trustee.


 


(a)           The Trustee shall transmit to holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.  If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this Indenture,
deliver to holders a brief report, dated as of such May 15, that complies
with the provisions of such Section 313(a).


 


(b)           A copy of each such report shall, at
the time of such transmission to Noteholders, be filed by the Trustee with each
stock exchange and automated quotation system upon which the Notes are listed
and with the Company.  The Company will
notify the Trustee in writing within a reasonable time when the Notes are
listed on any stock exchange or automated quotation system and when any such
listing is discontinued.


 


ARTICLE
VII



DEFAULTS AND REMEDIES


 


Section 7.01.  Events of Default.  Each of the following events shall be an “Event of Default” with respect to the
Notes:


 


(a)           default in any payment of interest,
including any Additional Interest or any Contingent Interest, on any Note when
due and payable, and the default continues for a period of thirty days;


 


(b)           default in the payment of principal
of any Note when due and payable on the Maturity Date, upon redemption, upon
required repurchase, upon declaration of acceleration or otherwise;


 


(c)           failure by the Company to comply with
its obligation to convert the Notes into cash, shares of Common Stock or a
combination of cash and shares of Common Stock, as applicable, upon exercise of
a holder’s conversion right;


 


(d)           failure by the Company to comply with
its obligations under Article 12;


 


(e)           failure by the Company to issue a
Fundamental Change Company Notice for a period of ten days after such notice
becomes due in accordance with Section 16.04(b);


 


(f)            failure by the Company for sixty
days after written notice from the Trustee or the holders of at least 25% in
principal amount of the Notes then outstanding (a copy of which notice, if
given by holders, also to be given to the Trustee) has been received by the
Company to comply with any of its other agreements contained in the Notes or
this Indenture, which notice shall state that it is a “Notice of Default”
hereunder;


 


32

















 


(g)           default by the Company or any
Subsidiary of the Company in the payment of the principal or interest on any
mortgage, agreement or other instrument under which there may be outstanding,
or by which there may be secured or evidenced, any debt for money borrowed in
excess of $30,000,000 in the aggregate of the Company and/or any such
Subsidiary, whether such debt now exists or shall hereafter be created, or any
other default thereunder resulting in such debt becoming or being declared due
and payable, and such acceleration shall not have been rescinded or annulled
within thirty days after written notice of such acceleration has been received
by the Company or such Subsidiary;


 


(h)           a final judgment for the payment of
$30,000,000 or more rendered against the Company or any Subsidiary of the
Company, and such amount is not covered by insurance or indemnity or not
discharged or stayed within thirty days after (i) the date on which the
right to appeal thereof has expired if no such appeal has commenced, or (ii) the
date on which all rights to appeal have been extinguished;


 


(i)            the Company or any Subsidiary of the
Company that is a “significant subsidiary” (as defined in Regulation S-X under
the Exchange Act) or any group of Subsidiaries of the Company that in the
aggregate would constitute a “significant subsidiary” shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to the Company or any such Subsidiary or group of
Subsidiaries or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any such
Subsidiary or group of Subsidiaries or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due; or


 


(j)            an involuntary case or other
proceeding shall be commenced against the Company or any Subsidiary of the
Company that is a “significant subsidiary” (as defined in Regulation S-X under
the Exchange Act) or any group of Subsidiaries of the Company that in the
aggregate would constitute a “significant subsidiary” seeking liquidation,
reorganization or other relief with respect to the Company or such Subsidiary
or group of Subsidiaries or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or
such Subsidiary or group of Subsidiaries or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of thirty consecutive days.


 


If an Event of Default occurs and is continuing, the Trustee by notice
to the Company, or the holders of at least 25% in aggregate principal amount of
the outstanding Notes (determined in accordance with Section 9.04) by
notice to the Company and the Trustee, may, and the Trustee at the request of
such holders shall, declare 100% of the principal of and accrued and unpaid
interest on all the Notes to be due and payable.  Upon such a declaration of acceleration, all
principal and accrued and unpaid interest (including any accrued and unpaid
Contingent Interest or Additional Interest) on the Notes will be due and
payable immediately.  However, upon an
Event of Default arising out of Section 7.01(i) or Section 7.01(j) with
respect to the Company (and not solely with respect to a “significant
subsidiary” (as defined in Regulation S-X under the Exchange Act) of the
Company, or a group of Subsidiaries of the Company that in 


 


33

















 


aggregate would constitute a “significant subsidiary” of the Company),
the aggregate principal amount and accrued and unpaid interest (including any
accrued and unpaid Contingent Interest or Additional Interest) will be due and
payable immediately.


 


Notwithstanding anything in this Indenture or in the Notes to the
contrary, for the first 180 days immediately following any violation of any
obligations the Company may be deemed to have pursuant to (1) Section 314(a)(1) of
the Trust Indenture Act, or (2) Section 5.06(b), and the continuation
thereof, the sole remedy for any such violation shall be the accrual of
additional interest on the Notes at an annual rate equal to 0.25% of the
outstanding principal amount of the Notes (“Supplementary
Interest”), payable semi-annually at the same time and in the same
manner as regular interest on the Notes pursuant to Section 2.03 and Section 5.01.  In addition to the accrual of Supplementary
Interest, on and after the 180th day, any violation of any obligations the
Company may be deemed to have pursuant to (1) Section 314(a)(1) of
the Trust Indenture Act or (2) Section 5.06(b), either the Trustee or
the Noteholders of not less than 25% in aggregate principal amount of the
outstanding Notes (determined in accordance with Section 9.04) may declare
the principal amount of the Notes and any accrued and unpaid interest (including
any accrued and unpaid Contingent Interest or Additional Interest) to be
immediately due and payable.


 


Section 7.02.  Payments of Notes on Default; Suit
Therefor.  If an Event of Default
described in clause (a) or (b) of Section 7.01 shall have
occurred, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the holders of the Notes, the whole amount then due and payable on
the Notes for principal, premium, if any, and interest, Contingent Interest, if
any, and Additional Interest, if any, with interest on any overdue principal,
premium, if any, interest, Contingent Interest, if any, and Additional
Interest, if any, at the rate borne by the Notes at such time, and, in addition
thereto, such further amount as shall be sufficient to cover any amounts due to
the Trustee under Section 8.06.  If
the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.


 


In the event there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Notes under
title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the event of any other judicial proceedings relative
to the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section 7.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal of and premium, if any (including the Redemption Price, the
Repurchase Price or the Fundamental Change Repurchase Price), and accrued and
unpaid interest, accrued and unpaid Contingent Interest, if any, and accrued
and 


 


34

















 


unpaid Additional Interest, if any, in respect of the Notes, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or
documents and to take such other actions as it may deem necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Noteholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Notes, its or
their creditors, or its or their property, and to collect and receive any
monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under Section 8.06;
and any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of the
Noteholders to make such payments to the Trustee, as administrative expenses,
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
reasonable compensation, expenses, advances and disbursements, including agents
and counsel fees, and including any other amounts due to the Trustee under Section 8.06
hereof, incurred by it up to the date of such distribution.  To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property that the holders of the Notes
may be entitled to receive in such proceedings, whether in liquidation or under
any plan of reorganization or arrangement or otherwise.


 


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


 


All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.


 


In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.


 


Section 7.03.  Application of Monies Collected by Trustee.  Any monies collected by the Trustee pursuant
to this Article 7 with respect to the Notes shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such monies, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:


 


First, to the payment of all amounts due the Trustee under Section 8.06;


 


35

















 


Second, in case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the Notes, including
Contingent Interest, if any, and Additional Interest, if any, in default in the
order of the date due of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate borne by the Notes at such time,
such payments to be made ratably to the Persons entitled thereto;


 


Third, in case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid to the payment of the whole
amount including the payment of the Redemption Price, the Repurchase Price or
the Fundamental Change Repurchase Price and the cash component of the
Conversion Obligation, if any, then owing and unpaid upon the Notes for
principal and premium, if any, and interest, including Contingent Interest, if
any, and Additional Interest, if any, with interest on the overdue principal
and premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate borne by the
Notes at such time, and in case such monies shall be insufficient to pay in
full the whole amounts so due and unpaid upon the Notes, then to the payment of
such principal and premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of interest over principal
and premium, if any, or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued and unpaid
interest; and


 


Fourth, to the payment of the remainder, if any, to the Company.


 


Section 7.04.  Proceedings by Noteholders.  No holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture, or for the appointment of a receiver, trustee, liquidator,
custodian or other similar official, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Notes then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such security or indemnity reasonably
satisfactory to it against any loss, liability or expense to be incurred
therein or thereby, and the Trustee for sixty days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction that, in the
opinion of the Trustee, is inconsistent with such written request shall have
been given to the Trustee by the holders of a majority in principal amount of
the Notes outstanding within such sixty-day period pursuant to Section 7.07;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Note with every other taker and holder and the Trustee that
no one or more Noteholders shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Noteholder (it being understood that the
Trustee does not have an affirmative duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Noteholders), or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Noteholders
(except as otherwise provided herein). 
For the protection and enforcement of this Section 7.04, each and
every 


 


36

















 


Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.


 


Notwithstanding any other provision of this Indenture and any provision
of any Note, the right of any Noteholder to receive payment of the principal of
and premium, if any (including the Redemption Price upon redemption pursuant to
Article 3, the Repurchase Price upon repurchase pursuant to Section 16.01
and the Fundamental Change Repurchase Price upon repurchase pursuant to Section 16.04),
and accrued and unpaid interest and accrued and unpaid Contingent Interest, if
any, and accrued and unpaid Additional Interest, if any, on such Note, on or
after the respective due dates expressed or provided for in such Note or in
this Indenture, or to institute suit for the enforcement of any such payment on
or after such respective dates against the Company shall not be impaired or
affected without the consent of such Noteholder.


 


Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.


 


Section 7.05.  Proceedings by Trustee.  In case of an Event of Default the Trustee
may in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as are necessary to
protect and enforce any of such rights, either by suit in equity or by action
at law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.


 


Section 7.06.  Remedies Cumulative and Continuing.  Except as provided in the last paragraph of Section 2.07,
all powers and remedies given by this Article 7 to the Trustee or to the
Noteholders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or the holders of the Notes, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements contained
in this Indenture, and no delay or omission of the Trustee or of any holder of
any of the Notes to exercise any right or power accruing upon any Default or
Event of Default shall impair any such right or power, or shall be construed to
be a waiver of any such Default or any acquiescence therein; and, subject to
the provisions of Section 7.04, every power and remedy given by this Article 7
or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.


 


Section 7.07.  Direction of Proceedings and Waiver of
Defaults by Majority of Noteholders. 
The holders of a majority in aggregate principal amount of the Notes at
the time outstanding determined in accordance with Section 9.04 shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to Notes; provided
however, that (a) such
direction shall not be in conflict with any rule of law or with this
Indenture, and (b) the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction.  The Trustee may refuse to follow any
direction that it determines is unduly prejudicial to the rights of any other
holder or that would involve the Trustee in personal 


 


37

















 


liability.  The holders of a
majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 9.04 (including, without limitation,
by consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes) may on behalf of the holders of all of the Notes
waive any past Default or Event of Default or rescind a declaration of
acceleration hereunder and their consequences except (i) a default in the
payment of premium (including any Redemption Price, any Repurchase Price or any
Fundamental Change Repurchase Price), if any, accrued and unpaid interest or
accrued and unpaid Contingent Interest, if any, or accrued and unpaid
Additional Interest, if any, on, or the principal of, the Notes when due that
has not been cured pursuant to the provisions of Section 7.01, (ii) a
failure by the Company to deliver cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable, upon conversion of the Notes
or (iii) a default in respect of a covenant or provision hereof which
under Article 11 cannot be modified or amended without the consent of each
holder of an outstanding Note affected so long as, in each case, (x) such
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (y) all existing Defaults and Events of Default
(other than as a result of (i) or (ii) above) that have become due
solely by such declaration of acceleration, have been cured or waived.  Upon any such waiver the Company, the Trustee
and the holders of the Notes shall be restored to their former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.  Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section 7.07, said
Default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.


 


Section 7.08.  Notice of Defaults.  The Trustee shall, within ninety days after
the occurrence and continuance of a Default of which a Responsible Officer has
actual knowledge, mail to all Noteholders as the names and addresses of such
holders appear upon the Note Register, notice of all Defaults known to a
Responsible Officer, unless such Defaults shall have been cured or waived
before the giving of such notice; and provided that, except in the case of a
Default in the payment of the principal of, or premium, if any, accrued and
unpaid interest or accrued and unpaid Contingent Interest, if any, or accrued
and unpaid Additional Interest, if any, on any of the Notes, including without
limiting the generality of the foregoing any Default in the payment of any Redemption
Price, any Repurchase Price or any Fundamental Change Repurchase Price, then in
any such event the Trustee shall be protected in withholding such notice if and
so long as a committee of Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Noteholders.


 


Section 7.09.  Undertaking to Pay Costs.  All parties to this Indenture agree, and each
holder of any Note by its acceptance thereof shall be deemed to have agreed,
that any court may, in its discretion, require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that,
the provisions of this Section 7.09 (to the extent permitted by law) shall
not apply to any suit instituted by the Trustee, to any 


 


38

















 


suit instituted by any Noteholder, or group of Noteholders, holding in
the aggregate more than 10% in principal amount of the Notes at the time
outstanding determined in accordance with Section 9.04, or to any suit
instituted by any Noteholder for the enforcement of the payment of the
principal of or premium, if any, accrued and unpaid interest or accrued and
unpaid Contingent Interest, if any, or accrued and unpaid Additional Interest,
if any, on any Note (including, but not limited to, the Redemption Price, the
Repurchase Price and the Fundamental Change Repurchase Price with respect to
the Notes being redeemed or repurchased, as applicable, as provided in this
Indenture) on or after the due date expressed or provided for in such Note or
to any suit for the enforcement of the right to convert any Note in accordance
with the provisions of Article 15.


 


ARTICLE
VIII


 


CONCERNING
THE TRUSTEE


 


Section 8.01.  Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiver of all Events of Default that
may have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture. 
In case an Event of Default has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs; provided
that, if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this
Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security satisfactory to it against
the costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction.


 


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


 


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


 


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


 


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


 


39

















 


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


 


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


 


(c)                                  the
Trustee shall not be liable with respect to any action taken or omitted to be taken
by it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Notes at the time outstanding
determined as provided in Section 9.04 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;


 


(d)                                 whether
or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee
shall be subject to the provisions of this Section 8.01;


 


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


 


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


 


(g)                                 in
the absence of written investment direction from the Company, all cash received
by the Trustee shall be placed in a non-interest bearing trust account, and in
no event shall the Trustee be liable for the selection of investments or for
investment losses, fees, taxes or other charges incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its
maturity date or the failure of the party directing such investments prior to
its maturity date or the failure of the party directing such investment to
provide timely written investment direction, and the Trustee shall have no
obligation to invest or reinvest any amounts held hereunder in the absence of
such written investment direction from the Company; and


 


(h)                                 in
the event that the Trustee is also acting as Custodian, Note Registrar, Paying
Agent, Conversion Agent or transfer agent hereunder, the rights and protections
afforded to the Trustee pursuant to this Article 8 shall also be afforded
to such Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer
agent.


 


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


 


40
















 


Section 8.02. 
Reliance
on Documents, Opinions, Etc.  Except as otherwise
provided in Section 8.01:


 


(a)           the
Trustee may conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, Note, coupon or other paper or document believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)           the
Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture.


 


In no event shall the Trustee be liable for any consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action other than any such loss or 


 


41

















 


damage caused by the Trustee’s willful misconduct or
gross negligence.  The Trustee shall not
be charged with knowledge of any Default or Event of Default with respect to
the Notes, unless either (1) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or by any holder of the Notes.


 


Section 8.03. 
No Responsibility for Recitals, Etc.  The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.  The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes.  The Trustee shall not be
accountable for the use or application by the Company of any Notes or the
proceeds of any Notes authenticated and delivered by the Trustee in conformity
with the provisions of this Indenture.


 


Section 8.04. 
Trustee, Paying Agents, Conversion Agents or Registrar May Own
Notes.  The Trustee, any Paying
Agent, any Conversion Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it
would have if it were not the Trustee, Paying Agent, Conversion Agent or Note
Registrar.


 


Section 8.05. 
Monies to Be Held in Trust. 
All monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received.  Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law.  The Trustee shall be
under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.


 


Section 8.06. 
Compensation and Expenses of Trustee.  The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed in writing for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) as mutually
agreed to in writing between the Trustee and the Company, and the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture in any capacity
thereunder (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as shall have been
caused by its gross negligence, willful misconduct or bad faith.  The Company also covenants to indemnify the
Trustee in any capacity under this Indenture and any other document or
transaction entered into in connection herewith and its agents and any
authenticating agent for, and to hold them harmless against, any loss, claim,
damage, liability or expense incurred without gross negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors,
agents or employees, or such agent or authenticating agent, as the case may be,
and arising out of or in connection with the acceptance or administration of
this trust or in any other capacity hereunder, including the costs and expenses
of defending themselves against any claim of liability in the premises.  The obligations of the Company under this Section 8.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall be secured by a senior claim to
which the Notes are hereby made subordinate on all money or property held or
collected by the Trustee, except, subject to the effect of Section 7.03,


 


42

















 


funds held in trust herewith for the benefit of the
holders of particular Notes.  The Trustee’s
right to receive payment of any amounts due under this Section 8.06 shall
not be subordinate to any other liability or indebtedness of the Company (even
though the Notes may be so subordinated). 
The obligations of the Company under this Section 8.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation
or removal or the Trustee.  The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.  The
indemnification provided in this Section 8.06 shall extend to the
officers, directors, agents and employees of the Trustee.


 


Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default specified in Section 7.01(i) or
Section 7.01(j) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.


 


Section 8.07. 
Officers’ Certificate as Evidence.  Except as otherwise provided in Section 8.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of gross negligence, willful misconduct, recklessness and bad faith on
the part of the Trustee, be deemed to be conclusively proved and established by
an Officers’ Certificate delivered to the Trustee, and such Officers’
Certificate, in the absence of gross negligence, willful misconduct,
recklessness and bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.


 


Section 8.08. 
Conflicting Interests of Trustee. 
After qualification of this Indenture under the Trust Indenture Act, if
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either (a) eliminate such
interest within ninety days, (b) apply to the Commission for permission to
continue as Trustee or (c) resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


 


Section 8.09. 
Eligibility of Trustee. 
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000.  If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section 8.09, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.  If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section 8.09,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.


 


Section 8.10. 
Resignation or Removal of Trustee.


 


(a)           The
Trustee may at any time resign by giving written notice of such resignation to
the Company and by mailing notice thereof to the Noteholders at their addresses
as they shall appear on the Note Register. 
Upon receiving such notice of resignation, the Company shall 


 


43

















 


promptly
appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee.  If no successor trustee shall have been so
appointed and have accepted appointment within sixty days after the mailing of
such notice of resignation to the Noteholders, the resigning Trustee may, at
the expense of the Company, upon ten Business Days’ notice to the Company and
the Noteholders, petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months may, subject to the
provisions of Section 7.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
trustee.  Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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


 


(i)            the Trustee shall
fail to comply with Section 8.08 within a reasonable time after written
request therefor by the Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months, or


 


(ii)           the Trustee shall cease
to be eligible in accordance with the provisions of Section 8.09 and shall
fail to resign after written request therefor by the Company or by any such
Noteholder, or


 


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


 


then, in any such case, the Company may by a Board Resolution remove
the Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.09, any
Noteholder who has been a bona fide holder of a Note or Notes for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


 


(c)           The
holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 9.04, may at any
time remove the Trustee and nominate a successor trustee that shall be deemed
appointed as successor trustee unless within ten days after notice to the
Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Noteholder, upon the terms and conditions and
otherwise as in Section 8.10(a) provided, may, at the expense of the Company,
petition any court of competent jurisdiction for an appointment of a successor
trustee.


 


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(d)           Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.10 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.11.


 


Section 8.11. 
Acceptance by Successor Trustee. 
Any successor trustee appointed as provided in Section 8.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 8.06, execute
and deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. 
Upon request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.  Any trustee ceasing to act shall,
nevertheless, retain a senior claim to which the Notes are hereby made
subordinate on all money or property held or collected by such trustee as such,
except for funds held in trust for the benefit of holders of particular Notes,
to secure any amounts then due it pursuant to the provisions of Section 8.06.


 


No successor trustee shall accept appointment as provided in this Section 8.11
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 8.08 and be eligible under the provisions
of Section 8.09.


 


Upon acceptance of appointment by a successor trustee as provided in
this Section 8.11, each of the Company and the successor trustee, at the
written direction and at the expense of the Company shall mail or cause to be
mailed notice of the succession of such trustee hereunder to the Noteholders at
their addresses as they shall appear on the Note Register.  If the Company fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.


 


Section 8.12. 
Succession by Merger, Etc. 
Any corporation or other entity into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or other entity succeeding to all
or substantially all of the corporate trust business of the Trustee (including
the administration of this Indenture), shall be the successor to the Trustee
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided
that, in the case of any corporation or other entity succeeding to
all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 8.08
and eligible under the provisions of Section 8.09.


 


In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee or authenticating
agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any 


 


45

















 


successor to the Trustee or an authenticating agent
appointed by such successor trustee may authenticate such Notes either in the
name of any predecessor trustee hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have; provided
however, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.


 


Section 8.13. 
Limitation on Rights of Trustee as Creditor.  If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Notes), after
qualification under the Trust Indenture Act, the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of the
claims against the Company (or any such other obligor).


 


Section 8.14. 
Trustee’s Application for Instructions from the Company.  Any application by the Trustee for written
instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the
holders of the Notes under this Indenture) may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted by the Trustee
under this Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. 
The Trustee shall not be liable for any action taken by, or omission of,
the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer that the Company has indicated
to the Trustee should receive such application actually receives such
application, unless any such officer shall have consented in writing to any earlier
date), unless, prior to taking any such action (or the effective date in the
case of any omission), the Trustee shall have received written instructions in
accordance with this Indenture in response to such application specifying the
action to be taken or omitted.


 


ARTICLE IX


 


CONCERNING THE NOTEHOLDERS


 


Section 9.01. 
Action by Noteholders. 
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Notes may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action, the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent
or proxy appointed in writing, or (b) by the record of the Noteholders
voting in favor thereof at any meeting of Noteholders duly called and may, but
shall not be required to, fix in advance of such solicitation, a date as the
record date held in accordance with the provisions of Article 10, or (c) by
a combination of such instrument or instruments and any such record of such a
meeting of Noteholders.  Whenever the
Company or the Trustee solicits the taking of any action by the holders of the
Notes, the Company or the Trustee may, but shall not be required to, fix in
advance of such solicitation, a date as the record date for determining
Noteholders entitled to take such action. 
The record date if one is selected shall be not more than fifteen days
prior to the date of commencement of solicitation of such action.


 


46

















 


Section 9.02. 
Proof of Execution by Noteholders.  Subject to the provisions of Section 8.01,
Section 8.02 and Section 10.05, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee.  The holding of Notes shall be proved by the
Note Register or by a certificate of the Note Registrar.  The record of any Noteholders’ meeting shall
be proved in the manner provided in Section 10.06.


 


Section 9.03. 
Who Are Deemed Absolute Owners. 
The Company, the Trustee, any authenticating agent, any Paying Agent,
any Conversion Agent and any Note Registrar may deem the Person in whose name a
Note shall be registered upon the Note Register to be, and may treat it as, the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Note Registrar) for the purpose of
receiving payment of or on account of the principal of, premium (including the
payment of the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price), if any, and (subject to Section 2.03) accrued
and unpaid interest and accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Interest, if any, on such Note, for conversion of
such Note and for all other purposes; and neither the Company nor the Trustee
nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be
affected by any notice to the contrary. 
All such payments so made to any holder for the time being, or upon its
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for monies payable upon any such
Note.  Notwithstanding anything to the
contrary in this Indenture or the Notes following an Event of Default, any
holder of a beneficial interest in a Global Note may directly enforce against
the Company, without the consent, solicitation, proxy, authorization or any
other action of the Depositary or any other Person, such holder’s right to
exchange such beneficial interest for a Note in certificated form in accordance
with the provisions of this Indenture.


 


Section 9.04. 
Company-Owned Notes Disregarded. 
In determining whether the holders of the requisite aggregate principal
amount of Notes have concurred in any direction, consent, waiver or other
action under this Indenture, Notes that are owned by the Company or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be disregarded and deemed not to
be outstanding for the purpose of any such determination; provided that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action only Notes that a Responsible
Officer actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 9.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s
right to so act with respect to such Notes and that the pledgee is not the
Company or a Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company.  In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.  The Company
shall furnish to the Trustee promptly an Officers’ Certificate listing and
identifying all Notes, if any, known by the Company to be owned or held by or
for the account of any of the above described Persons; and, subject to Section 8.01,
the Trustee shall be entitled to accept such Officers’ Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Notes not listed therein are outstanding for the purpose of any such
determination.


 


47
















 


Section 9.05.  Revocation of Consents; Future Holders
Bound.  At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 9.01, of the
taking of any action by the holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action,
any holder of a Note that is shown by the evidence to be included in the Notes
the holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such
Note.  Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon
such holder and upon all future holders and owners of such Note and of any
Notes issued in exchange or substitution therefor or upon registration of
transfer thereof, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor or
upon registration of transfer thereof.


 


ARTICLE
X


 


NOTEHOLDERS’
MEETINGS


 


Section 10.01.  Purpose of Meetings.  A meeting of Noteholders may be called at any
time and from time to time pursuant to the provisions of this Article 10
for any of the following purposes:


 


(a)           to
give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by Noteholders pursuant to any of the
provisions of Article 7;


 


(b)           to
remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article 8;


 


(c)           to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 11.02; or


 


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


 


Section 10.02.  Call of Meetings by Trustee.  The Trustee may at any time call a meeting of
Noteholders to take any action specified in Section 10.01, to be held at
such time and at such place as the Trustee shall determine.  Notice of every meeting of the Noteholders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and the establishment of any record
date pursuant to Section 9.01, shall be mailed to holders of such Notes at
their addresses as they shall appear on the Note Register.  Such notice shall also be mailed to the
Company.  Such notices shall be mailed not
less than twenty nor more than ninety days prior to the date fixed for the meeting.


 


Any meeting of Noteholders shall be valid without
notice if the holders of all Notes then outstanding are present in person or by
proxy or if notice is waived before or after the meeting by 


 


48

















 


the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.


 


Section 10.03.  Call of Meetings by Company or Noteholders.  In case at any time the Company, pursuant to
a Board Resolution, or the holders of at least 25% in aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call
a meeting of Noteholders, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty days after receipt of such
request, then the Company or such Noteholders may determine the time and the
place for such meeting and may call such meeting to take any action authorized
in Section 10.01, by mailing notice thereof as provided in Section 10.02.


 


Section 10.04.  Qualifications for Voting.  To be entitled to vote at any meeting of
Noteholders a Person shall (a) be a holder of one or more Notes on the
record date pertaining to such meeting or (b) be a Person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting.  The
only Persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 10.05.  Regulations.  Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Noteholders as provided in Section 10.03, in
which case the Company or the Noteholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote at the meeting.


 


Subject to the provisions of Section 9.04, at any
meeting of Noteholders each Noteholder or proxyholder shall be entitled to one
vote for each $1,000 principal amount of Notes held or represented by him; provided however, that no vote shall be
cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not
outstanding.  The chairman of the meeting
shall have no right to vote other than by virtue of Notes held by it or
instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Noteholders.  Any meeting
of Noteholders duly called pursuant to the provisions of Section 10.02 or Section 10.03
may be adjourned from time to time by the holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.


 


Section 10.06.  Voting.  The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the Noteholders or of their representatives by proxy and the
outstanding principal amount of the 


 


49

















 


Notes held or represented by them.  The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting.  A record in duplicate of
the proceedings of each meeting of Noteholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 10.02. 
The record shall show the principal amount of the Notes voting in favor
of or against any resolution.  The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.


 


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


 


Section 10.07.  No Delay of Rights by Meeting.  Nothing contained in this Article 10
shall be deemed or construed to authorize or permit, by reason of any call of a
meeting of Noteholders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the Noteholders under
any of the provisions of this Indenture or of the Notes.


 


ARTICLE XI


 


SUPPLEMENTAL
INDENTURES


 


Section 11.01.  Supplemental Indentures Without Consent of
Noteholders.  The Company, when
authorized by the resolutions of the Board of Directors, and the Trustee, at
the Company’s expense, may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:


 


(a)           to
cure any ambiguity, omission, defect or inconsistency in this Indenture or
conform the terms of the Indenture or the Notes to the description thereof in
the Offering Memorandum;


 


(b)           to
provide for the assumption by a Successor Company of the obligations of the
Company under this Indenture pursuant to Article 12;


 


(c)           to
add guarantees with respect to the Notes;


 


(d)           to
secure the Notes;


 


(e)           to
add to the covenants of the Company such further covenants, restrictions or
conditions for the benefit of the Noteholders or surrender any right or power
conferred upon the Company;


 


50

















 


(f)            to
make any change that does not materially and adversely affect the rights of any
holder;


 


(g)           provide
for a successor trustee; or


 


(h)           to
comply with any requirements of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act.


 


Upon the written request of the Company, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


Any supplemental indenture authorized by the
provisions of this Section 11.01 may be executed by the Company and the
Trustee without the consent of the holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 11.02.


 


Section 11.02.  Supplemental Indentures With Consent of
Noteholders.  With the consent
(evidenced as provided in Article 9) of the holders of at least a majority
in aggregate principal amount of the Notes at the time outstanding (determined
in accordance with Article 9 and including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), the Company, when authorized by the resolutions of the Board of
Directors and the Trustee, at the Company’s expense, may from time to time and
at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or any supplemental indenture or of
modifying in any manner the rights of the holders of the Notes or of waiving
any past Default or Event of Default or compliance with the provisions of this
Indenture; provided  however, that no such supplemental
indenture shall:


 


(a)           reduce
the percentage in aggregate principal amount of Notes outstanding whose holders
must consent to an amendment of this Indenture or to waive any past Default or
Event of Default;


 


(b)           reduce
the rate or extend the stated time for payment of interest, including
Contingent Interest and Additional Interest, on any Note;


 


(c)           reduce
the principal of, or extend the Maturity Date of, any Note;


 


(d)           make
any change that impairs or adversely affects the conversion rights of any
Notes;


 


(e)           reduce
the Redemption Price, the Repurchase Price or the Fundamental Change Repurchase
Price of any Note or amend or modify in any manner adverse to the holders of
the Notes the Company’s obligation to make such payments, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;


 


(f)            make
any Note payable in a currency other than that stated in the Note;


 


51

















 


(g)           impair
the right of any holder to receive payment of principal of and interest,
including Contingent Interest, if any, and Additional Interest, if any, on such
holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such holder’s Notes; or


 


(h)           make
any change in this Article 11 that requires each holder’s consent or in
the waiver provisions in Section 7.01 or Section 7.07;


 


in each case without the consent of each holder of an
outstanding Note affected.


 


Upon the written request of the Company, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid
and subject to Section 11.05, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.


 


It shall not be necessary for the consent of the
Noteholders under this Section 11.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof. 
After an amendment under this Indenture becomes effective, the Company
shall send to the holders a notice briefly describing such amendment.  However, the failure to give such notice to
all the holders, or any defect in the notice, will not impair or affect the
validity of the amendment.


 


Section 11.03.  Effect of Supplemental Indentures.  Any supplemental indenture executed pursuant
to the provisions of this Article 11 shall comply with the Trust Indenture
Act, as then in effect; provided
that, this Section 11.03 shall not require such supplemental indenture to
be qualified under the Trust Indenture Act prior to the time such qualification
is in fact required under the terms of the Trust Indenture Act or this
Indenture has been qualified under the Trust Indenture Act, nor shall any such
qualification constitute any admission or acknowledgment by any party to such
supplemental indenture that any such qualification is required prior to the
time such qualification is in fact required under the terms of the Trust
Indenture Act or this Indenture has been qualified under the Trust Indenture
Act.  Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 11, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.


 


Section 11.04.  Notation on Notes.  Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article 11
may, at the Company’s expense, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture.  If the Company or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Company’s expense, be prepared and
executed by the Company, authenticated by the Trustee (or 


 


52

















 


an authenticating agent duly appointed by the Trustee
pursuant to Section 18.11) and delivered in exchange for the Notes then
outstanding, upon surrender of such Notes then outstanding.


 


Section 11.05.  Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. 
In addition to the documents required by Section 18.05, the Trustee
shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article 11 and is permitted or authorized by the
Indenture.


 


ARTICLE
XII


 


CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE


 


Section 12.01.  Company May Consolidate, Etc. on
Certain Terms.


 


Subject to the provisions of Section 12.02, the
Company shall not consolidate with, merge with or into, or convey, transfer or
lease all or substantially all of its properties and assets to another Person,
unless:


 


(a)           the
resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia, and
the Successor Company (if not the Company) shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Notes and this Indenture;


 


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


 


(c)           the
Company and the Successor Company provide adequate assurance, to the ex-tent
that the Successor Company is not the issuer of any part of the Reference
Property, that the immediate resale of the Reference Property received upon
conversion by holders that are not affiliates of the Company will not require
registration under the Securities Act.


 


Upon any such consolidation, merger, conveyance,
transfer or lease the Successor Company (if not the Company) shall succeed to,
and may exercise every right and power of, the Company under this Indenture.


 


For purposes of this Section 12.01, the
conveyance, transfer or lease of the properties and assets of one or more
Subsidiaries of the Company substantially as an entirety to another Person,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute the properties and assets of the Company
substantially as an entirety on a consolidated basis, shall be deemed to be the
transfer of the properties and assets of the Company substantially as an entirety
to another Person.


 


Section 12.02.  Successor Corporation to Be Substituted.  In case of any such consolidation, merger,
conveyance, transfer or lease and upon the assumption by the Successor Company,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in 


 


53

















 


form to the Trustee, of the due and punctual payment
of the principal of and premium (including any Redemption Price, Repurchase
Price or Fundamental Change Repurchase Price), if any, accrued and unpaid
interest and accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Additional Interest, if any, on all of the Notes, the due and punctual
delivery or payment, as the case may be, of any consideration due upon
conversion of the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Company, such
Successor Company shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part.  Such Successor Company thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company
any or all of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such Successor Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver, or cause to be authenticated and delivered, any
Notes that previously shall have been signed and delivered by the officers of
the Company to the Trustee for authentication, and any Notes that such
Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose.  All the Notes
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof.  In the event of
any such consolidation, merger, conveyance or transfer (but not in the case of
a lease), the Person named as the “Company” in the first paragraph of this
Indenture or any successor that shall thereafter have become such in the manner
prescribed in this Article 12 may be dissolved, wound up and liquidated at
any time thereafter and, except in the case of a lease, such Person shall be
released from its liabilities as obligor and maker of the Notes and from its
obligations under this Indenture.


 


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


 


Section 12.03.  Opinion of Counsel to Be Given Trustee.  No merger, consolidation, conveyance,
transfer or lease shall be effective unless the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, conveyance, transfer or lease and any such
assumption and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with the provisions of this Article 12.


 


ARTICLE XIII


 


IMMUNITY
OF INCORPORATORS, STOCKHOLDERS,


OFFICERS
AND DIRECTORS


 


Section 13.01.  Indenture and Notes Solely Corporate
Obligations.  No recourse for the
payment of the principal of or premium (including any Redemption Price,
Repurchase Price or Fundamental Change Repurchase Price), if any, or accrued
and unpaid interest and accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Interest, if any, on any Note, nor for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Company in this Indenture or in
any 


 


54

















 


supplemental indenture or in any Note, nor because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or Subsidiary,
as such, past, present or future, of the Company or of any successor
corporation or entity, either directly or through the Company or any successor
corporation or entity, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.


 


ARTICLE
XIV


 


CONTINGENT
INTEREST


 


Section 14.01.  Contingent Interest.


 


(a)           The
Company shall pay Contingent Interest with respect to the Notes for any
Contingent Interest Period if the average Trading Price of Notes for the five
consecutive Trading Days ending on the Trading Day immediately preceding the
first day of the relevant Contingent Interest Period equals or exceeds 120% of
the principal amount of such Notes.


 


(b)           The
amount of Contingent Interest payable per $1,000 principal amount of Notes in
respect of any Contingent Interest Period shall equal 0.25% per annum
calculated on the average Trading Price of $1,000 principal amount of Notes
during the relevant five Trading Day period used to determine whether
Contingent Interest must be paid.


 


(c)           The
Company shall be responsible for calculating the amounts of Contingent
Interest, if any, accrued on the Notes. 
The Company shall make any such calculations using the Trading Price
provided by the Trustee.  The Trustee
shall be entitled in its sole discretion to consult with the Company and to
request the assistance of the Company in connection with the Trustee’s duties
pursuant to this Article 14, and the Company agrees, if requested by the
Trustee, to cooperate with, and provide assistance to, the Trustee in carrying
out its duties under this Article 14.


 


Section 14.02.  Payment of Contingent Interest.  Payments of Contingent Interest shall be made
in the same manner, at the same time, and subject to the same restrictions,
including those restrictions in respect of accrued and unpaid interest on any
Notes that are submitted for conversion, as payments of interest.


 


Section 14.03.  Contingent Interest Notification.  Upon the determination that Contingent
Interest is payable, the Company shall notify holders of Notes that holders of
Notes shall be entitled to receive Contingent Interest in respect of a
Contingent Interest Period, in no event later than the first Business Day of a
Contingent Interest Period for which Contingent Interest shall be payable, by
publishing a notice in a newspaper of general circulation in The City of New
York or publish any such information on its website or through such other
public medium as the Company may use at that time.


 


55
















 


ARTICLE
XV


 


CONVERSION
OF NOTES


 


Section 15.01.  Conversion Privilege.


 


(a)           Upon
compliance with the provisions of this Article 15, a Noteholder shall have
the right, at such holder’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 Note (i) at any time prior to February 15, 2038
under the circumstances and during the periods set forth in Section 15.01(b) below,
and (ii) irrespective of the conditions described in Section 15.01(b) below,
on or after February 15, 2038 and prior to the close of business on the
Business Day immediately preceding the Maturity Date, in each case, at an
initial conversion rate (the “Conversion Rate”)
of 7.9586 shares of Common Stock (subject to adjustment as provided in Section 15.04
of this Indenture) per $1,000 principal amount of Notes (subject to the
settlement provisions of Section 15.02, the “Conversion Obligation”).


 


(b)           (i) 
The Notes may be surrendered for conversion during the five Business Day period
immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading
Price per $1,000 principal amount of Notes for each day of such Measurement
Period was less than 98% of the product of the then-applicable Conversion Rate
on such Trading Day and the Last Reported Sale Price of the Common Stock on
such Trading Day.  The Company shall
provide written notice to the Trustee of the three independent nationally recognized
securities dealers selected by the Company pursuant to the definition of
Trading Price, along with appropriate contact information for each.  The Trustee shall have no obligation to
determine the Trading Price of the Notes unless requested by the Company, and
the Company shall have no obligation to make such request unless a Noteholder
provides the Company with reasonable evidence that the Trading Price per $1,000
principal amount of the Notes would be less than 98% of the product of the
then-applicable Conversion Rate and the Last Reported Sale Price of the Common
Stock at such time, at which time 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 per Note is greater than
or equal to 98% of the product of the then-applicable Conversion Rate and the
Last Reported Sale Price of the Common Stock on such Trading Day.  If the Company does not, when obligated to,
instruct the Trustee to determine the Trading Price of the Notes as provided in
the preceding sentence, or if the Company gives such instruction to the
Trustee, and the Trustee fails to make such determination, then the Trading
Price per $1,000 principal amount of Notes will be deemed to be less than 98%
of the product of the Last Reported Sale Price of the Common Stock and the
then-applicable Conversion Rate.  If the
Trading Price condition set forth above has been met, the Company shall so
notify the Noteholders, the Trustee and the Conversion Agent.  If, at any time after the Trading Price
condition set forth above has been met, the Trading Price per $1,000 principal
amount of Notes is greater than 98% of the product of the then-applicable
Conversion Rate and the Last Reported Sale Price of the Common Stock on such Trading
Day, the Company shall so notify the holders of the Notes, the Trustee and the
Conversion Agent.


 


(ii)           In
the event that the Company elects to:


 


56

















 


(A)          distribute
to all or substantially all holders of its Common Stock rights, options or
warrants entitling them, for a period of not more than sixty calendar days from
the declaration date of such distribution, to subscribe for or purchase its
Common Stock, at a price per share less than the average of the Last Reported
Sale Prices of the Common Stock over the ten consecutive Trading Day period
ending on and including the Trading Day immediately preceding the declaration
date for such distribution; or


 


(B)           distribute
to all or substantially all holders of its Common Stock the Company’s assets
(including cash), debt securities, or rights to purchase securities of the
Company, which distribution has a per share value (as determined by the Board
of Directors) exceeding 10% of the Last Reported Sale Price of the Common Stock
on the Trading Day immediately preceding the date of declaration for such
distribution,


 


then, in each case, the Company shall notify all
holders of the Notes, the Trustee and the Conversion Agent not less than thirty
Business Days prior to the Ex-Dividend Date for such distribution.  Once the Company has given such notice, the
Notes may be surrendered for conversion at any time until the earlier of (1) the
close of business on the Business Day immediately prior to such Ex-Dividend
Date and (2) the Company’s announcement that such distribution will not
take place, even if the Notes are not otherwise convertible at such time.


 


(iii)          In
the event of either a Fundamental Change or a Make-Whole Fundamental Change,
regardless of whether a Noteholder has the right to require the Company to
repurchase the Notes pursuant to Section 16.04, a Noteholder may surrender
Notes for conversion at any time from and after the thirtieth Business Day
prior to the anticipated effective date of such Fundamental Change or
Make-Whole Fundamental Change, as the case may be, until the Business Day
immediately preceding the Fundamental Change Repurchase Date corresponding to
such Fundamental Change or, in the case of a Make-Whole Fundamental Change that
does not also constitute a Fundamental Change, until, and including, the
thirtieth Business Day after the effective date of such Make-Whole Fundamental
Change.  The Company shall give notice of
the anticipated effective date of any Fundamental Change as promptly as practicable
after the Company first determines the anticipated effective date of such
Fundamental Change, and this notice must occur, to the extent practicable, at
least thirty Business Days prior to such anticipated effective date and the
Company shall give notice of the anticipated effective date of any Make-Whole
Fundamental Change as set forth in Section 15.03(b).


 


(iv)          The
Notes may be surrendered for conversion in any Fiscal Quarter after the Fiscal
Quarter ending September 30, 2008, and only during such Fiscal Quarter, if
the Last Reported Sale Price of the Common Stock for at least twenty Trading
Days in a period of thirty consecutive Trading Days ending on the last Trading
Day of the immediately preceding Fiscal Quarter is equal to or more than 130% of
the then-applicable Conversion Price on the last day of such preceding Fiscal
Quarter (such price, the “Conversion Trigger
Price”).  The Conversion
Agent, on behalf of the Company, shall determine at the beginning of each
Fiscal Quarter commencing after September 30, 


 


57

















 


2008 whether the Notes may be surrendered for
conversion in accordance with this clause (iv) and shall notify the
Company and the Trustee.


 


(v)           In
the event that the Company calls the Notes for redemption pursuant to Article 3,
the Notes may be surrendered for conversion at any time prior to the close of
business on the Business Day immediately preceding the Redemption Date, whether
or not the Notes are otherwise convertible at such time.


 


Section 15.02.  Conversion Procedure.


 


(a)           Subject to this Section 15.02,
upon any conversion of any Note, the Company shall deliver to converting
Noteholders, in respect of each $1,000 principal amount of Notes being
converted, solely cash, solely shares of Common Stock or a combination of cash
and Common Stock (the “Settlement Amount”),
at its election, as set forth in this Section 15.02.


 


(i)            All
conversions on or after February 15, 2038 will be settled using the same
Settlement Method.


 


(ii)           Prior
to February 15, 2038, the Company will elect (or be deemed to have
elected) the same Settlement Method for all conversions occurring on any given
Conversion Date.  Except for any
conversions that occur on or after February 15, 2038, the Company need not
elect the same Settlement Method with respect to conversions that occur on
different Trading Days.


 


(iii)          If,
in respect of any Conversion Date (or the period beginning on, but excluding, February 15,
2038 and ending on, and including, the Business Day immediately preceding the
Maturity Date, as the case may be), the Company elects to deliver a notice (the
“Settlement Notice”) of the
relevant Settlement Method in respect of such Conversion Date (or such period,
as the case may be), the Company, through the Trustee, shall deliver such
Settlement Notice to converting Noteholders no later than the second Trading
Day immediately following the relevant Conversion Date.  Such Settlement Notice shall specify whether
the Company shall satisfy its Conversion Obligation by (A) delivering
solely shares of Common Stock, (B) paying solely cash or (C) paying
and delivering, as the case may be, a combination of cash and shares of Common
Stock.  In the case of an election to pay
and deliver, as the case may be, a combination of cash and shares of Common
Stock, the relevant Settlement Notice shall indicate the Specified Dollar
Amount.  If the Company does not deliver
a Settlement Notice, the Company shall be deemed to have elected to deliver a combination
of cash and shares of Common Stock in respect of its Conversion Obligation, and
the Specified Dollar Amount shall be deemed to be equal to $1,000.  If the Company delivers a Settlement Notice
electing to pay and deliver, as the case may be, a combination of cash and
shares of Common Stock in respect of its Conversion Obligation but does not
indicate a Specified Dollar Amount in such Settlement Notice, the Specified
Dollar Amount shall be deemed to be equal to $1,000.


 


58

















 


(iv)         The
Settlement Amount in respect of any conversion of Notes shall be computed as
follows:


 


(A)          if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by delivering solely Common Stock, the Company shall deliver to the
converting Noteholder a number of shares of Common Stock equal to (1) the
aggregate principal amount of Notes to be converted, divided by $1,000,
multiplied by (2) the then-applicable Conversion Rate;


 


(B)           if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by paying solely cash, the Company shall pay to the converting
Noteholder cash in an amount per $1,000 principal amount of Notes being
converted equal to the sum of the Daily Conversion Values for each of the
twenty consecutive Trading Days during the related Cash Settlement Averaging
Period; and


 


(C)           if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by paying and delivering, as the case may be, a combination of cash
and shares of Common Stock, if any, the Company shall pay and deliver, as the
case may be, in respect of each $1,000 principal amount of Notes being
converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts
for each of the twenty consecutive Trading Days during the related Cash
Settlement Averaging Period.


 


(v)           The
Company shall also deliver to each converting Noteholder cash in lieu of
fractional shares of Common Stock as set forth pursuant to clause (l) below.


 


(vi)          The
Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day
of the Cash Settlement Averaging Period. 
Promptly after such determination of the Daily Settlement Amounts or the
Daily Conversion Values, as the case may be, and the amount of cash deliverable
in lieu of fractional shares (if any), the Company shall notify the Trustee and
the Conversion Agent of the Daily Settlement Amounts or the Daily Conversion
Values, as the case may be, and the amount of cash deliverable in lieu of
fractional shares of Common Stock.  The
Trustee and the Conversion Agents 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 (including
Contingent Interest, if any, and Additional Interest, if any) payable on the
next Interest Payment Date to which such holder is not entitled as set forth in
Section 15.02(h) and, if required, all transfer or similar taxes, if
any, 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 


 


59

















 


form on the reverse of such certificated Note (or a
facsimile thereof) (Annex A 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 any shares of Common Stock,
if any, to be delivered upon settlement of the Conversion Obligation to be
registered, (2) surrender such Notes, duly endorsed to the Company or in
blank (and accompanied by appropriate endorsement and transfer documents), at
the office of the Conversion Agent, (3) if required, pay funds equal to
interest (including Contingent Interest, if any, and Additional Interest, if
any) payable on the next Interest Payment Date to which such holder is not
entitled as set forth in Section 15.02(h), (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 15.02(e).  The Trustee (and if different, the relevant
Conversion Agent) shall notify the Company of any conversion pursuant to this Article 15
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 Repurchase Notice to the Company in
respect of such Notes and not validly withdrawn such Repurchase Notice in accordance
with Section 16.02 or 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 16.05.


 


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)           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 clause
(b).  The Company shall pay and deliver,
as the case may be, the cash and/or shares of Common Stock due in respect of
its Conversion Obligation on the third Trading Day immediately following the
relevant Conversion Date, if the Company elects to satisfy the related
Conversion Obligation solely in shares of Common Stock, or by the third Trading
Day immediately following the last Trading Day of the Cash Settlement Averaging
Period, in the case of any other Settlement Method.  If any shares of Common Stock are due to
converting Noteholders, the Company shall issue or cause to be issued, and
deliver to the Conversion Agent or to such Noteholder, or such Noteholder’s
nominee or nominees, certificates or a book-entry transfer through the Depositary
for the number of full shares of Common Stock to which such Noteholder shall be
entitled in satisfaction of such Conversion Obligation.


 


(d)           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.


 


(e)           If
a holder submits a Note for conversion, the Company shall pay all stamp and
other duties, 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, if any, upon the conversion.  However, the holder shall pay any such tax
that is due because the holder requests any shares of Common Stock to be issued
in a name other than the holder’s name 


 


60

















 


or the tax is imposed by any taxing authority outside
the United States.  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.


 


(f)            Except
as provided in Section 15.04, no adjustment shall be made for dividends on
any shares issued upon the conversion of any Note as provided in this Article.


 


(g)           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.


 


(h)           Upon
conversion, a Noteholder shall not receive any separate cash payment for
accrued and unpaid interest, Contingent Interest, if any and Additional
Interest, if any, except as set forth below. 
The Company’s settlement of the Conversion Obligations as described
above shall be deemed to satisfy its obligation to pay the principal amount of
the Note and accrued and unpaid interest, Contingent Interest, if any, and
Additional Interest, if any, to, but not including, the Conversion Date.  As a result, accrued and unpaid interest,
Contingent Interest, if any, and Additional Interest, if any, to, but not
including, the Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited.  Notwithstanding
the preceding sentence, if Notes are converted after the close of business on
an Interest Record Date, but prior to the opening of business on the
corresponding Interest Payment Date, holders of such Notes as of the close of
business on the Interest Record Date will receive the interest, Contingent
Interest, if any, and Additional Interest, if any, payable on such Notes on the
corresponding Interest Payment Date notwithstanding the conversion.  Notes surrendered for conversion during the
period from the close of business on any Interest Record Date to the opening of
business on the corresponding Interest Payment Date must be accompanied by
payment of an amount equal to the interest, Contingent Interest, if any, and
Additional Interest, if any, payable on the Notes so converted; provided however, that no such payment
shall be required (1) if the Company has called the Notes for redemption, (2) if
the Company has specified a Fundamental Change Repurchase Date that is after an
Interest Record Date but on or prior to the corresponding Interest Payment
Date, (3) to the extent of any Defaulted Interest, if any, existing at the
time of conversion with respect to such Note or (4) if the Notes are
surrendered for conversion after the close of business on the Interest Record
Date immediately preceding the Maturity Date. 
Except as described above, no payment or adjustment will be made for
accrued and unpaid interest, Contingent Interest, if any, and Additional
Interest, if any, on converted Notes.


 


(i)            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 relevant Conversion Date (if the Company elects to
satisfy the related Conversion Obligation solely in shares of Common Stock) or
the last Trading Day of the related Cash Settlement Averaging Period (in the
case of any other Settlement Method), as the case may be; provided however, if such Conversion Date
or such last Trading Day of the Cash Settlement Averaging Period occurs on any
date when the stock transfer books of the Company shall be closed, such
occurrence shall not be effective to constitute the Person or Persons entitled
to receive any such shares of Common Stock due upon conversion as the record
holder or holders 


 


61

















 


of such shares of Common Stock on such date, but such
occurrence shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open.  Upon
conversion of Notes, such Person shall no longer be a Noteholder.


 


(j)            For
each Note surrendered for conversion, if the Company has elected to deliver a
combination of cash and shares of Common Stock in respect of its Conversion
Obligation, the number of full shares that shall be issued upon conversion
thereof shall be computed on the basis of the aggregate Daily Settlement
Amounts for the applicable Cash Settlement Averaging Period and any fractional
shares remaining after such computation shall be paid in cash.  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.  The Company shall not issue
fractional shares of Common Stock upon conversion of Notes.  Instead, the Company shall pay cash in lieu
of fractional shares based on the Daily VWAP on the relevant Conversion Date
(if the Company elects to satisfy its Conversion Obligation solely in shares of
Common Stock) or based on the Daily VWAP on the last Trading Day of the
relevant Cash Settlement Averaging Period (in the case of any other Settlement
Method).  The Company shall determine the
number of fractional shares for which cash shall be delivered by aggregating (i) all
Notes a holder surrenders for conversion and (ii) fractional shares
included in the Daily Settlement Amounts over the entire related Cash
Settlement Averaging Period rather than delivering cash in lieu of fractional
shares for (x) each individual Note of such holder surrendered for
conversion or (y) each day of the related Cash Settlement Averaging
Period.


 


Section 15.03.  Increased Conversion Rate Applicable to
Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes.


 


(a)           Notwithstanding
anything herein to the contrary, if the Effective Date of a Make-Whole
Fundamental Change occurs on or prior to August 15, 2013, the Conversion
Rate applicable to each Note that is surrendered for conversion, in accordance
with this Article 15, at any time from, and including, the Effective Date
of the Make-Whole Fundamental Change until, and including, the close of
business on (1) the Business Day immediately prior to the related
Fundamental Change Repurchase Date corresponding to such Make-Whole Fundamental
Change or (2), if the Make-Whole Fundamental Change does not also constitute a
Fundamental Change, the thirtieth Business Day immediately after the Effective
Date of the Make-Whole Fundamental Change, shall be increased to an amount
equal to the Conversion Rate that would, but for this Section 15.03,
otherwise apply to such Note pursuant to this Article 15, plus an amount
equal to the Make-Whole Conversion Rate Adjustment.


 


As used herein, “Make-Whole
Conversion Rate Adjustment” shall mean, with respect to a Make-Whole
Fundamental Change, the amount set forth in the following table that
corresponds to the date such Make-Whole Fundamental Change occurs or becomes
effective (the “Effective Date”)
and the Stock Price for such Make-Whole Fundamental Change, all as determined
by the Company:


 


62

















 


Make-Whole Conversion Rate Adjustment


(per $1,000 principal amount of Notes)


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $89.75

  	
   

  	
  $95.00

  	
   

  	
  $100.00

  	
   

  	
  $110.00

  	
   

  	
  $125.65

  	
   

  	
  $145.00

  	
   

  	
  $165.00

  	
   

  	
  $190.00

  	
   

  	
  $220.00

  	
   

  	
  $260.00

  	
   

  	
  $300.00

  	
   

  	
  $500.00

  	
   

  
	
  30-Jul-08

  	
   

  	
  3.1835

  	
   

  	
  2.8635

  	
   

  	
  2.5894

  	
   

  	
  2.1573

  	
   

  	
  1.6599

  	
   

  	
  1.2721

  	
   

  	
  1.0014

  	
   

  	
  0.7735

  	
   

  	
  0.6010

  	
   

  	
  0.4567

  	
   

  	
  0.3625

  	
   

  	
  0.1522

  	
   

  
	
  15-Aug-09

  	
   

  	
  3.1835

  	
   

  	
  2.7398

  	
   

  	
  2.4608

  	
   

  	
  1.9924

  	
   

  	
  1.5026

  	
   

  	
  1.1117

  	
   

  	
  0.8479

  	
   

  	
  0.6387

  	
   

  	
  0.4916

  	
   

  	
  0.3695

  	
   

  	
  0.2923

  	
   

  	
  0.1240

  	
   

  
	
  15-Aug-10

  	
   

  	
  3.1835

  	
   

  	
  2.6045

  	
   

  	
  2.3191

  	
   

  	
  1.8255

  	
   

  	
  1.3213

  	
   

  	
  0.9260

  	
   

  	
  0.6723

  	
   

  	
  0.4968

  	
   

  	
  0.3736

  	
   

  	
  0.2789

  	
   

  	
  0.2218

  	
   

  	
  0.0990

  	
   

  
	
  15-Aug-11

  	
   

  	
  3.1835

  	
   

  	
  2.5930

  	
   

  	
  2.1340

  	
   

  	
  1.6121

  	
   

  	
  1.0533

  	
   

  	
  0.6508

  	
   

  	
  0.4377

  	
   

  	
  0.3032

  	
   

  	
  0.2198

  	
   

  	
  0.1648

  	
   

  	
  0.1333

  	
   

  	
  0.0604

  	
   

  
	
  15-Aug-12

  	
   

  	
  3.1835

  	
   

  	
  2.5803

  	
   

  	
  2.0894

  	
   

  	
  1.3630

  	
   

  	
  0.7180

  	
   

  	
  0.3270

  	
   

  	
  0.1799

  	
   

  	
  0.1006

  	
   

  	
  0.0703

  	
   

  	
  0.0571

  	
   

  	
  0.0474

  	
   

  	
  0.0223

  	
   

  
	
  15-Aug-13

  	
   

  	
  3.1835

  	
   

  	
  2.5677

  	
   

  	
  2.0414

  	
   

  	
  1.1323

  	
   

  	
  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 table 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 table above in the row immediately
below the title “Effective Date,” then the Make-Whole Conversion Rate
Adjustment for such Make-Whole Fundamental Change shall be determined by the
Company by linear interpolation between the Make-Whole Conversion Rate
Adjustment set forth for such higher and lower Stock Prices, or for such
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
$500.00 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 $89.75 per share (subject to
adjustment in the same manner as the Stock Price as provided in clause (iii) below),
then the Make-Whole Conversion Rate Adjustment shall be equal to zero and this Section 15.03
shall not require the Company to increase the Conversion Rate with respect to
such Make-Whole Fundamental Change;


 


(iii)          if
an event occurs that requires, pursuant to this Article 15 (other than
solely pursuant to this Section 15.03), an adjustment to the Conversion Rate,
then, on the date and at the time such adjustment is so required to be made,
each price set forth in the table above under the column titled “Stock Price”
shall be deemed to 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 Conversion Rate in effect immediately before such
adjustment to the Conversion Rate and whose denominator is the Conversion Rate
to be in effect, in accordance with this Article 15, immediately after
such adjustment to the Conversion Rate;


 


(iv)          each
Make-Whole Conversion Rate Adjustment set forth in the table above shall be
adjusted in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to Section 15.04; and


 


(v)           in
no event will the total number of shares of Common Stock issuable upon
conversion of the Notes exceed 11.1421 per $1,000 principal amount of Notes, 


 


63

















 


subject to adjustment in the same manner as the
Conversion Rate pursuant to Section 15.04.


 


(b)           As
soon as practicable after the Company determines the anticipated Effective Date
of any proposed Make-Whole Fundamental Change, the Company shall mail to each
Noteholder, the Trustee and the Conversion Agent written notice of, and shall
issue a press release indicating, the anticipated effective date of such
proposed Make-Whole Fundamental Change and such notice must occur, to the
extent practicable, at least twenty Business Days prior to such anticipated
Effective Date.  Each such notice and
press release shall also state that in connection with such Make-Whole
Fundamental Change, the Company shall increase, in accordance herewith, the
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).  No later than the
actual Effective Date of each Make-Whole Fundamental Change, the Company shall
mail to each Noteholder, the Trustee and the Conversion Agent written notice
of, and shall issue a press release indicating, such Effective Date and the
amount by which the Conversion Rate has been so increased.


 


Nothing in this Section 15.03 shall prevent an
adjustment to the Conversion Rate pursuant to Section 15.04 in respect of
a Make-Whole Fundamental Change.  Any
adjustment required pursuant to Section 15.04 shall be made before giving
effect to an adjustment under this Section 15.03.


 


Section 15.04.  Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company as follows:


 


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


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion
  Rate in effect immediately prior to the 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;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the 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 

  



 


64

















 


	
   

  	
   

  	
  split or share
  combination, as the case may be; and

  
	
   

  	
   

  	
   

  
	
  OS1

  	
  =

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

  



 


Such adjustment shall become effective immediately
after the opening 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 15.04(a) is
declared but not so paid or made, or the outstanding shares of Common Stock are
not split or combined, as the case may be, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or split or combine the
outstanding shares of Common Stock, as the case may be, to the Conversion Rate
that would then be in effect if such dividend, distribution, share split or
share combination had not been declared or announced.


 


(b)           In
case the Company shall distribute to all or substantially all holders of its
Common Stock any rights, options or warrants entitling them for a period of not
more than sixty calendar days from the declaration date of such distribution to
subscribe for or purchase shares of its Common Stock, at a price per share less
than the average of the Last Reported Sale Prices of the Common Stock over the
ten consecutive Trading Day Period ending on and including the Trading Day
immediately preceding the declaration date for such distribution, the
Conversion Rate shall be increased based on the following formula:


 





 


where


 


	
  CR0

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of
  shares of the Common Stock that are outstanding 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, options or
  warrants; and

  
	
   

  	
   

  	
   

  
	
  Y

  	
  =

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

  



 


Such adjustment shall be successively made whenever
any such rights, options or warrants are distributed and shall become effective
immediately after the opening of business on the 


 


65

















 


Ex-Dividend Date for such distribution.  The Company shall not issue any such rights,
options or warrants in respect of shares of the Common Stock held in treasury
by the Company.  To the extent that
shares of the Common Stock are not delivered after the expiration of such
rights, options or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered.  If such rights, options or warrants are not
so issued, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such Ex-Dividend Date for such
distribution had not been fixed.


 


In determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at
less than such average of the Last Reported Sale Prices of the Common Stock,
and in determining the aggregate offering price of such shares of the Common
Stock, there shall be taken into account any consideration received by the
Company for such rights, options or warrants and any amount payable on exercise
or conversion thereof, the value of such consideration, if other than cash, to
be determined by the Board of Directors. 
In no event shall the Conversion Rate be decreased pursuant to this Section 15.04(b) (other
than upon a readjustment as set forth in the immediately preceding paragraph).


 


(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 (including share splits) covered by Section 15.04(a) and
Section 15.04(b), (ii) dividends or distributions paid exclusively in
cash and covered by Section 15.04(d), and (iii) Spin-Offs to which
the provisions set forth below in this Section 15.04(c) shall apply
(any of such shares of Capital Stock, indebtedness, or other asset or property
hereinafter in this Section 15.04(c) called the “Distributed Property”), to all or
substantially all holders of its Common Stock, then, in each such case the
Conversion Rate shall be increased based on the following formula:


 





 


where


 


	
  CR0

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of
  the Last Reported Sale Prices of the Common Stock over the ten consecutive
  Trading Day period ending on and including 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) of the shares of Capital
  Stock, evidences of indebtedness, assets or property distributed with respect
  to each outstanding share of the Common Stock as of the open of business on
  the Ex-Dividend Date for such distribution.

  



 


66
















 


Such
adjustment shall become effective immediately prior to the opening 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
conversion for each $1,000 principal amount of Notes, in addition to the
Settlement Amount which such holder is entitled to receive, the amount of
Distributed Property such holder would have received had such holder owned a
number of shares of Common Stock equal to the Conversion Rate immediately prior
to the Record Date for such distribution. 
If such distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.  If the Board of Directors determines “FMV”
for purposes of this Section 15.04(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 ten consecutive Trading Day period
ending on the Trading Day immediately preceding the Ex-Dividend Date for such
distribution.


 


With
respect to an adjustment pursuant to this Section 15.04(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 Conversion Rate in effect
immediately before the close of business on the tenth Trading Day immediately
following, and including, the effective date of the Spin-Off will be increased
based on the following formula:


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in
  effect immediately prior to the close of business on the effective date of
  the Spin-Off;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the Conversion Rate in
  effect immediately after the close of business on the effective date of the
  Spin-Off;

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
  the average of the Last
  Reported Sale Prices of the Common Stock over the ten consecutive Trading Day
  period immediately following the effective date of the Spin-Off.

  



 


The
adjustment to the Conversion Rate under the preceding paragraph shall become
effective at the close of business on the effective date of the Spin-Off.  If the Trading Day immediately following the
effective date of the Spin-Off is less than ten Trading Days prior to, and
including, the end of the Cash Settlement Averaging Period in respect of such
conversion, references within this clause (3) to ten consecutive Trading
Days shall be deemed replaced for purposes of the affected daily Conversion
Rates in respect of such conversion with such lesser number of 


 


67

















 


Trading
Days as have elapsed from and including the Trading Day next succeeding the
effective date of the Spin-Off to and including the last Trading Day of such
Cash Settlement Averaging Period.  For
purposes of determining the Conversion Rate, in respect of any conversion
during the ten Trading Days immediately following, and including, the effective
date of any Spin-Off, references in the portion of this Section 15.04(c) related
to Spin-Offs to ten 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 the Conversion Date for such conversion.


 


Subject
in all respect to Section 15.10, rights, options or warrants distributed
by the Company to all holders of its Common Stock entitling the holders thereof
to subscribe for or purchase shares of the Company’s Capital Stock, including
Common Stock (either initially or under certain circumstances), which rights,
options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be
transferred with such shares of the Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
the Common Stock, shall be deemed not to have been distributed for purposes of
this Section 15.04 (and no adjustment to the Conversion Rate under this Section 15.04
will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 15.04(c). 
If any such right, option or warrant, including any such existing
rights, options or warrants distributed prior to the date of this Indenture,
are subject to events, upon the occurrence of which such rights, options or
warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and Ex-Dividend Date
with respect to new rights, options or warrants with such rights (and a
termination or expiration of the existing rights, options or warrants without
exercise by any of the holders thereof). 
In addition, in the event of any distribution (or deemed distribution)
of rights, options or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto that was counted for
purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 15.04 was made, (1) in the case of
any such rights, options or warrants that shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights or warrants), made to
all holders of Common Stock as of the date of such redemption or repurchase,
and (2) in the case of such rights, options or warrants that shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had
not been issued.


 


For
purposes of this Section 15.04(c), Section 15.04(a), and Section 15.04(b),
any dividend or distribution to which this Section 15.04(c) is applicable
that also includes shares of Common Stock, or rights, options or warrants to
subscribe for or purchase shares of Common Stock to which Section 15.04(a) or
Section 15.04(b) (or both) applies, shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
Capital Stock other than such shares of Common Stock or rights, options or
warrants to which Section 15.04(c) applies (and any Conversion Rate
adjustment required by this Section 15.04(c) with respect to 


 


68

















 


such
dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights, options
or warrants (and any further Conversion Rate adjustment required by Section 15.04(a) and

Section 15.04(b) with respect to such dividend or distribution shall then
be made), except (A) the Ex-Dividend Date of such dividend or distribution
shall be substituted as “the Ex-Dividend Date,” “the Ex-Dividend Date relating
to such distribution of such rights, options or warrants” and “the Ex-Dividend
Date for such distribution” within the meaning of Section 15.04(a) and Section 15.04(b) and
(B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to the Ex-Dividend Date for
such dividend or distribution, or the effective date of such share split or
share combination, as the case may be” within the meaning of Section 15.04(a) or
“outstanding immediately prior to the Ex-Dividend Date for such dividend or
distribution” within the meaning of Section 15.04(b).


 


In no
event shall the Conversion Rate be decreased pursuant to this Section 15.04(c) (other
than upon a readjustment if a distribution of Distributed Property is not made
as set forth above in this Section 15.04(c)).


 


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


 





 


where


 


	
  CR0

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the 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 consecutive Trading Day
  period ending on, and including, the Trading Day immediately preceding the
  Ex-Dividend Date for such dividend or distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

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

  



 


Such
adjustment shall become effective immediately after the opening of business on
the Ex-Dividend Date for such dividend or distribution; provided that, if “C” 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 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, the amount
of cash such holder would have received had such holder owned a number of
shares equal to the Conversion Rate on the Record Date for such distribution.  If such dividend or distribution is not so
paid or made, the Conversion Rate shall 


 


69

















 


again
be adjusted to be the 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 15.04(d), in the
event of any reclassification of the Common Stock, as a result of which the
Notes become convertible into more than one class of Common Stock, if an
adjustment to the Conversion Rate is required pursuant to this Section 15.04(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 the number of shares of each class of
Common Stock into which the Notes are then convertible equal to the numbers of
shares of such class issued in respect of one share of Common Stock in such
reclassification.  The above provisions of
this paragraph shall similarly apply to successive reclassifications.


 


In no
event shall the Conversion Rate be decreased pursuant to this Section 15.04(d) (other
than upon a readjustment if a cash dividend or distribution is not made as set
forth above in this Section 15.04(d)).


 


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


 





 


where


 


	
  CR0

  	
  =

  	
  the Conversion Rate in
  effect immediately prior to the opening of business on the Trading Day next
  succeeding the Expiration Date;

  
	
   

  	
   

  	
   

  
	
  CR1

  	
  =

  	
  the Conversion Rate in
  effect immediately after the opening of business on the Trading Day next
  succeeding Expiration Date;

  
	
   

  	
   

  	
   

  
	
  AC

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  OS1

  	
  =

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

  



 


70

















 


	
  SP1

  	
  =

  	
  the average of the Last
  Reported Sale Prices of Common Stock over the ten consecutive Trading Day
  period commencing on, and including, the Trading Day next succeeding the
  Expiration Date.

  



 


Such
adjustment shall become effective at the opening of business on the Trading Day
next succeeding the Expiration Date.  If
the Trading Day next succeeding the Expiration Date is less than ten Trading
Days prior to, and including, the end of the Cash Settlement Averaging Period
in respect of such conversion, references within this clause (e) to ten
consecutive Trading Days shall be deemed replaced for purposes of the affected
daily Conversion Rates in respect of such conversion with such lesser number of
Trading Days as have elapsed from and including the Trading Day next succeeding
the Expiration Date to and including the last Trading Day of such Cash
Settlement Averaging Period.   For
purposes of determining the Conversion Rate, in respect of any conversion
during the ten Trading Days following the date that any such tender or exchange
offer expires, references in this Section 15.04(e) to ten Trading
Days shall be deemed replaced with such lesser number of Trading Days as have
elapsed between the date that such tender or exchange offer expires and the
Conversion Date for such conversion.  If
the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any or all or any portion of such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such tender or exchange offer had not been
made or had been made only in respect of the purchases that had been effected.


 


If:


 


(1) the Company elects to satisfy its
Conversion Obligation through delivery of a combination of cash and Common
Stock and shares of Common Stock are deliverable to settle the Daily Share
Amount for a given Trading Day within the Cash Settlement Averaging Period
applicable to Notes that Noteholders have converted;


 


(2) any distribution or transaction described
in Sections 15.04(a) through (e) has not yet resulted in an
adjustment to the Conversion Rate on the Trading Day in question; and


 


(3) the shares Noteholders will receive in respect
of such Trading Day are not entitled to participate in the relevant
distribution or transaction (because they were not held on a related Record
Date or otherwise);


 


then the Company shall
adjust the number of shares that it will deliver to Noteholders in respect of
the relevant Trading Day to reflect the relevant distribution or transaction.


 


If:


 


(1) the Company elects to satisfy its
Conversion Obligation solely in shares of Common Stock;


 


(2) any distribution or transaction described
in Sections 15.04(a) through (e) has not yet resulted in an
adjustment to the Conversion Rate on the Conversion Date; and


 


71

















 


(3) the shares Noteholders will receive on
settlement are not entitled to participate in the relevant distribution or
transaction (because they were not held on a related Record Date or otherwise),


 


then
the Company shall adjust the number of shares that it will deliver to
Noteholders in respect of the relevant Trading Day to reflect the relevant distribution
or transaction.


 


If the
Company is obligated to purchase shares pursuant to any such tender or exchange
offer, but the Company is permanently prevented by applicable law from
effecting any or all or any portion of such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such tender or exchange offer had not been
made or had been made only in respect of the purchases that had been
effected.  In no event shall the
Conversion Rate be decreased pursuant to this Section 15.04(e).


 


In no
event shall the Conversion Rate be decreased pursuant to this Section 15.04(e) (other
than upon a readjustment as set forth in the immediately preceding sentence).


 


(f)            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 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 Conversion Rate for the issuance 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)           Notwithstanding this Section 15.04
or any other provision of this Indenture or the Notes, if any Conversion Rate
adjustment becomes effective, or any Ex-Dividend Date for any issuance,
dividend or distribution (relating to a required Conversion Rate adjustment)
occurs, during the period beginning on, and including, the open of business on
a Conversion Date and ending on, and including, (x) the close of business
on the third Trading Day immediately following the relevant Conversion Date (if
the Company elects to satisfy the related Conversion Obligation solely in
shares of Common Stock) or (y) the close of business on the last Trading
Day of a related Cash Settlement Averaging Period (in the case of any other
Settlement Method), the Board of Directors shall make adjustments to the
Conversion Rate and the amount of cash or number of shares of Common Stock
issuable upon conversion of the Notes, as the case may be, as is be necessary
or appropriate to effect the intent of this Section 15.04 and the other
provisions of Article 15 and to avoid unjust or inequitable results, as
determined in good faith by the Board of Directors.  Any adjustment made pursuant to this Section 15.04(h) shall
apply in lieu of the adjustment or other term that would otherwise be
applicable.


 


(i)            In addition to those required by
clauses (a), (b), (c), (d) and (e) of this Section 15.04, and to
the extent permitted by applicable law and subject to the applicable rules of



 


72

















 


the New York Stock Exchange, the Company from time to time may increase
the Conversion Rate by any amount for a period of at least twenty Business Days
if the Board of Directors determines that such increase would be in the Company’s
best interest.  In addition, the Company
may also (but is not required to) increase the 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 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 2.06 a notice of
the increase at least fifteen days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.  The Company shall not take any action that
would result in adjustment of the Conversion Rate in such a manner as to result
in the reduction of the Conversion Price to less than the par value per share
of Common Stock.


 


(j)            The applicable 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 options or rights to purchase
or acquire 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)          for
a change in the par value of the Common Stock;


 


(v)           for
accrued and unpaid interest, including Contingent Interest, if any, and Additional
Interest, if any; or


 


(vi)          for
any transactions described in this Section 15.04 if Noteholders
participate (as a result of holding the Notes, and at the same time as holders
of Common Stock participate) in such transactions as if such Noteholders held a
number of shares of Common Stock equal to the Conversion Rate at the time such
adjustment would be required, multiplied by the principal amount (expressed in
thousands) of Notes held by such Noteholder, without having to convert their
Notes.


 


(k)           All calculations and other
determinations under this Article 15 shall be made by the Company and
shall be made to the nearest one-ten thousandth (1/10,000) of a share.  The Company shall not be required to make an
adjustment in the Conversion Rate unless the adjustment would require a change
of at least 1% in the Conversion Rate. 
However, the Company shall carry forward any adjustments that are less
than 1% of the Conversion Rate and make such carried forward adjustment,
regardless of whether the aggregate adjustment is less 


 


73

















 


than 1%, (i) upon any conversion of Notes (with such adjustments
to be made on each day and for each adjustment event occurring during the
applicable Cash Settlement Averaging Period), (ii) on each of the
twenty-two scheduled Trading Days immediately preceding the maturity date.


 


(l)            Whenever the Conversion Rate is
adjusted as herein provided, the Company shall promptly file with the Trustee
and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the
Trustee shall have received such Officers’ Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume without inquiry that the last Conversion Rate of which it has knowledge
is still in effect.  Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Rate to the holder of each Note at
its last address appearing on the Note Register provided for in Section 2.06
of this Indenture, within ten 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 15.04,
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.  The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


Section 15.05.  Shares to Be Fully Paid.  The Company shall provide, free from
preemptive rights, out of its authorized but unissued shares or shares held in
treasury, sufficient shares of Common Stock to provide for conversion of the
Notes from time to time as such Notes are presented for conversion.


 


Section 15.06.  Effect of Reclassification, Consolidation,
Merger or Sale.  Upon the occurrence
of (i) any reclassification or change of the outstanding shares of Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a split, subdivision or
combination covered by Section 15.04(a)), (ii) any consolidation,
merger or combination involving the Company, or (iii) any sale or
conveyance of all or substantially all of the property and assets of the
Company to any other Person, in each case as a result of which holders of
Common Stock shall be entitled to receive cash, securities or other property or
assets with respect to or in exchange for such Common Stock (any such event a “Merger Event”), then:


 


(a)           the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) permitted under Section 11.01(f) providing
for the conversion and settlement of the Notes as set forth in this
Indenture.  Such supplemental indenture
shall provide for adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article 15.  If, in the case of any Merger Event, the
Reference Property includes shares of stock or other securities and assets of a
corporation other than the successor or purchasing corporation, as the case may
be, in such reclassification, 


 


74

















 


change, consolidation, merger, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the
holders of the Notes as the Board of Directors shall reasonably consider
necessary by reason of the foregoing, including to the extent required by the
Board of Directors and practicable the provisions providing for the repurchase
rights set forth in Article 16 herein.


 


In the event the Company shall execute a supplemental indenture
pursuant to this Section 15.06, the Company shall promptly file with the
Trustee an Officers’ Certificate briefly stating the reasons therefor, 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 Indenture,
within twenty days after execution thereof. 
Failure to deliver such notice shall not affect the legality or validity
of such supplemental indenture.


 


(b)           Notwithstanding the provisions of Section 15.02(a),
and subject to the provisions of Section 15.01 and Section 15.03, at
and after the effective time of such Merger Event, (i) the right to
convert each $1,000 principal amount of Notes into cash, shares of Common Stock
or a combination of cash and shares of Common Stock at the Company’s election
as set forth in Section 15.02 will be changed to a right to convert such
Note into cash, the kind and amount of shares of stock, securities or other
property or assets (including cash or any combination thereof) that a holder of
a number of shares of Common Stock equal to the Conversion Rate immediately
prior to such transaction would have owned or been entitled to receive (the “Reference Property”) or a combination of
cash and Reference Property at the Company’s election and (ii) the related
Conversion Obligation shall be settled as set forth under clause (c) below,
it being understood and agreed that for purposes of Section 15.01(b),
references therein to “the Last Reported Sale Price of the Common Stock” shall
be deemed at and after the effective time of such Merger Event to be references
to “the Last Reported Sale Price of a unit of Reference Property comprised of
the kind and amount of shares of stock, securities or other property or assets
(including cash or any combination thereof) that a holder of one share of
Common Stock immediately prior to such Merger Event would have owned or been
entitled to receive based on the Weighted Average Consideration.” The Company
shall not become a party to any Merger Event unless its terms are consistent
with this Section 15.06.  None of
the foregoing provisions shall affect the right of a holder of Notes to convert
its Notes into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, as set forth in Section 15.01 and Section 15.02
prior to the effective date of such Merger Event.


 


(c)           With respect to each $1,000 principal
amount of Notes surrendered for conversion after the effective date of any such
Merger Event, the Company’s Conversion Obligation shall be settled in cash or
units of Reference Property, at the Company’s election, in accordance with Section 15.02(b) as
follows:


 


(i)            (A) if
the Company elects to satisfy its Conversion Obligation in respect of such
conversion by delivering solely Reference Property, the Company shall deliver
to the converting Noteholder a number of units of Reference Property (each such
unit comprised of the kind and amount of shares of stock, securities or other
property or assets 


 


75

















 


(including cash or any combination thereof) that a
holder of one share of Common Stock immediately prior to such Merger Event
would have owned or been entitled to receive based on the Weighted Average
Consideration) equal to (1) the aggregate principal amount of Notes to be
converted, divided by $1,000, multiplied by (2) the then-applicable
Conversion Rate; (B) if the Company elects to satisfy its Conversion
Obligation in respect of such conversion by paying solely cash, the Company
shall pay to the converting Noteholder cash in an amount per $1,000 principal
amount of Notes being converted equal to the sum of the Daily Conversion Values
for each of the twenty consecutive Trading Days during the related Cash
Settlement Averaging Period, such Daily Conversion Values determined as if the
reference to “the Daily VWAP of the Common Stock” in the definition thereof
were instead a reference to “the Daily VWAP of a unit of Reference Property
comprised of the kind and amount of shares of stock, securities or other
property or assets (including cash or any combination thereof) that a holder of
one share of Common Stock immediately prior to such Merger Event would have
owned or been entitled to receive based on the Weighted Average Consideration”;
and (C) if the Company elects to satisfy its Conversion Obligation by
paying or delivering, as the case may be, of a combination of cash and
Reference Property, the Company shall pay and deliver, as the case may be, in
respect of each $1,000 principal amount of Notes being converted, a Settlement Amount
equal to the sum of the Daily Settlement Amounts for each of the twenty
consecutive Trading Days during the Cash Settlement Averaging Period for such
Note, such Daily Settlement Amounts determined as if the reference to “the
Daily VWAP of the Common Stock” in the definition of Daily Conversion Value and
Daily Share Amount were instead a reference to “the Daily VWAP of a unit of
Reference Property comprised of the kind and amount of shares of stock,
securities or other property or assets (including cash or any combination
thereof) that a holder of one share of Common Stock immediately prior to such
Merger Event would have owned or been entitled to receive based on the Weighted
Average Consideration.”


 


(ii)           The
Company will deliver the cash in lieu of fractional units of Reference Property
as set forth pursuant to Section 15.02(j) (provided that the amount
of such cash shall be determined as if references in such Section to “the
Daily VWAP” were instead a reference to “the Daily VWAP of a unit of Reference
Property composed of the kind and amount of shares of stock, securities or
other property or assets (including cash or any combination thereof) that a
holder of one share of Common Stock immediately prior to such Merger Event
would have owned or been entitled to receive based on the Weighted Average
Consideration”).


 


(iii)          The
Daily Settlement Amounts (if applicable) and Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day
of the Cash Settlement Averaging Period.


 


(iv)          For
purposes of this Section 15.06, the “Weighted
Average Consideration” shall mean the weighted average of the types
and amounts of consideration received by the holders of the Common Stock
entitled to receive cash, securities or other property or assets with respect
to or in exchange for such Common Stock in any Merger Event who affirmatively
make such an election.


 


76
















 


(v)                                 The
Company shall notify the holders of the Weighted Average Consideration as soon
as practicable after the Weighted Average Consideration is determined.


 


(d)                                 The
above provisions of this Section shall similarly apply to successive
Merger Events.


 


Section 15.07. 
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 will, 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 national securities exchange or automated quotation system, the Company
will list and keep 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; provided that
the Company shall have no such obligation to list and keep listed any Common
Stock issuable upon conversion of the Notes prior to the date that is the tenth
Business Day immediately after the date of this Indenture.


 


Section 15.08. 
Responsibility of Trustee. 
The Trustee and any other Conversion Agent shall not at any time be
under any duty or responsibility to any Noteholder to determine the Conversion
Rate (or any adjustment thereto) or whether any facts exist that may require
any adjustment (including any increase) of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. 
The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities, 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 provisions contained in any supplemental indenture entered
into pursuant to Section 15.06 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 15.06 or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 8.01, may accept (without any
independent investigation) as conclusive evidence of the correctness of any 


 


77

















 


such provisions, and shall be protected in relying
upon, the Officers’ Certificate (which the Company shall be obligated to file
with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.  Neither the
Trustee nor the Conversion Agent shall be responsible for determining whether
any event contemplated by Section 15.01(b) has occurred that makes
the Notes eligible for conversion or no longer eligible therefor until the
Company has delivered to the Trustee and the Conversion Agent the notices referred
to in Section 15.01(b) with respect to the commencement or
termination of such conversion rights, on which notices the Trustee and the
Conversion Agent may conclusively rely, and the Company agrees to deliver such
notices to the Trustee and the Conversion Agent immediately after the
occurrence of any such event or at such other times as shall be provided for in
Section 15.01(b).


 


Section 15.09. 
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 Conversion Rate pursuant to Section 15.04;
or


 


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


 


(c)                                  of
any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale 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; the Company shall cause to be filed with the Trustee and to be mailed
to each Noteholder at its address appearing on the Note Register provided for
in Section 2.06 of this Indenture, as promptly as possible but in any
event at least twenty 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, options 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 15.10. 
Stockholder Rights Plans. 
To the extent that the Company has a stockholder rights plan or other “poison
pill” in effect upon conversion of the Notes, each share of Common Stock, if
any, issued upon such conversion shall be entitled to receive the appropriate
number of rights, if any, and the certificates representing the Common Stock
issued upon such conversion shall bear such legends, if any, in each case as
may be provided by the terms of any such stockholder rights plan or poison
pill, as the same may be amended from time 


 


78

















 


to time.  If
prior to the time of conversion, however, the rights have separated from the
shares of Common Stock in accordance with the provisions of the applicable
stockholder rights agreement so that the holders of the Notes would not be
entitled to receive any rights in respect of Common Stock, if any, issuable
upon conversion of the Notes, the Conversion Rate will be adjusted at the time
of separation as if the Company has distributed to all holders of Common Stock,
shares of Capital Stock of the Company, evidences of indebtedness or other of
its assets or property as provided in Section 15.04(c), subject to
readjustment in the event of the expiration, termination or redemption of such
rights.


 


Section 15.11. 
Exchange in Lieu of Conversion. 
When a holder surrenders its Notes for conversion, the Company may, at
its election (the “Exchange Election”),
direct the Conversion Agent to surrender, on or prior to the second Business
Day following the relevant Conversion Date, 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 for exchange in lieu of conversion, the Designated Institution must
agree to timely deliver, in exchange for such Notes, the shares of Common Stock
and/or cash that would otherwise be due upon conversion as described in Section 15.02
above and in respect of which the Company has notified to converting
Noteholders.  If the Company makes an
Exchange Election, the Company shall, by the close of business on the second
Business Day following the relevant Conversion Date as part of its Settlement
Notice, notify the holder surrendering its Notes for conversion that it has
made such election.  In addition, the Company
shall concurrently notify the Designated Institution of the Settlement Method
(and, if applicable, the Specified Dollar Amount) that Company has elected with
respect to such conversion and the relevant deadline for delivery of the
consideration due upon conversion.  Any
Notes exchanged by the Designated Institution will remain outstanding.


 


If the Designated Institution agrees to accept any
Notes for exchange but does not timely deliver the related consideration due
upon conversion to the Conversion Agent, or if the Designated Institution does
not accept such Notes for exchange, the Company shall, within the time period
specified in Section 15.02(c), convert such Notes into cash and/or shares
of Common Stock, as applicable in accordance with the provisions of Section 15.02.


 


For the avoidance of doubt, in no event will the
Company’s designation of a Designated Institution pursuant to this Section 15.11
require the Designated Institution to accept any Notes for exchange.


 


ARTICLE
XVI


 


REPURCHASE
OF NOTES AT OPTION OF HOLDERS


 


Section 16.01.  Repurchase of Notes by the Company at
Option of the Holder.


 


(a)                                  On
each of August 15, 2013, August 15, 2018, August 15, 2023, August 15,
2028 and August 15, 2033 (each, a “Repurchase
Date”), each holder shall have the option to require the Company to
repurchase Notes for which that holder has properly delivered and not withdrawn
a written Repurchase Notice (as described below) at a repurchase price in cash
equal to 100% of the principal amount of those Notes, plus accrued and unpaid
interest, accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Additional Interest, if any, on those 


 


79

















 


Notes,
to, but not including, such Repurchase Date (the “Repurchase Price”); provided
that, if the Repurchase Date is on a date that is after an Interest
Record Date and on or prior to the corresponding Interest Payment Date, the
Repurchase Price shall be 100% of the principal amount of the Notes repurchased
but shall not include accrued and unpaid interest, Contingent Interest, if any,
and Additional Interest, if any. 
Instead, the Company shall pay such accrued and unpaid interest,
Contingent Interest, if any, and Additional Interest, if any, on the Interest
Payment Date, to the holder of Record on the corresponding Interest Record
Date.  Not later than twenty Business
Days prior to any Repurchase Date, the Company shall mail a notice (the “Repurchase Company Notice”) by electronic
transmission or first-class mail, postage prepaid, to the Trustee, the Paying Agent
and the Conversion Agent and to each holder (and to beneficial owners if
required by applicable law).  The
Repurchase Company Notice shall include a form of Repurchase Notice to be
completed by a holder and shall state:


 


	
   

  	
   

  	
  (i)

  	
  the Repurchase Price;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)

  	
  the Repurchase Date;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv)

  	
  briefly, the conversion rights, if any, that exist
  at the date of the Repurchase Company Notice or as a result of 

  
	
   

  	
  the Repurchase Company Notice with respect to the
  Notes;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v)

  	
  if applicable, the applicable Conversion Rate, any
  adjustments to the applicable Conversion Rate;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vi)

  	
  if applicable, that the Notes with respect to which
  a Repurchase Notice has been delivered by a holder may 

  
	
   

  	
  be converted only if the holder withdraws the
  Repurchase Notice in accordance with the terms of the Indenture;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (vii)

  	
  that the holder must exercise the repurchase right
  on or prior to the close of business on the Business Day 

  
	
   

  	
  immediately preceding the Repurchase Date (the “Repurchase Expiration Time”);

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (viii)

  	
  that the Repurchase Price for any Note as to which a
  Repurchase Notice has been given and not withdrawn 

  
	
   

  	
  shall be paid promptly following the later of the
  Business Day immediately following the Repurchase Date and the time of 

  
	
   

  	
  surrender of such Note as described in clause (xi)
  below;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ix)

  	
  the procedures the holder must follow to exercise
  its right to require the Company to repurchase such 

  
	
   

  	
  holder’s Notes under this Section 16.01 and a
  brief description of that right;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (x)

  	
  the procedures for withdrawing a Repurchase Notice;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (xi)

  	
  that Notes must be surrendered to the Paying Agent
  (by effecting book-entry transfer of the Notes or 

  
	
   

  	
  delivering Notes in certificated form, together with
  necessary endorsements, as the case may be) to collect payment;

  



 


80

















 


	
   

  	
   

  	
  (xii)

  	
  that, unless the Company defaults in making payment
  on Notes for which a Repurchase Notice has been 

  
	
   

  	
  submitted, interest, Contingent Interest, if any, or
  Additional Interest, if any, on such Notes shall cease to accrue from and
  after the Repurchase Date; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (xiii)

  	
  the CUSIP, “ISIN” or other similar number(s), as the
  case may be, of the Notes.

  



 


At the
Company’s request, the Trustee shall give such Repurchase Company Notice to
each holder in the Company’s name and at the Company’s expense; provided however, that, in all cases, the
text of such Repurchase Company Notice shall be prepared by the Company.


 


(b)                                 A
holder may exercise its rights specified in Section 16.01(a) upon
delivery to the Paying Agent of a duly completed notice of repurchase (a “Repurchase Notice”) in the form set forth
on the reverse of the Notes as Annex B during the period beginning at any time
from the opening of business on the date that is 20 Business Days prior to the
Repurchase Date until the Repurchase Expiration Time, stating:


 


(i)                                     if
Notes in certificated form have been issued, the certificate number(s) of
the Notes which the holder shall deliver to be repurchased or, if Notes in
certificated form have not been issued for such Note, the Repurchase Notice
shall comply with the appropriate Depositary procedures for book-entry
transfer;


 


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


 


(iii)                               that Notes are to be
repurchased by the Company pursuant to the applicable provision of the Notes
and the Indenture.


 


The delivery of such Note (together with all necessary
endorsements) to the Paying Agent at any time after delivery of the Repurchase
Notice at the offices of the Paying Agent shall be a condition to receipt by
the holder of the Repurchase Price therefor; provided
however, that such Repurchase Price shall be so paid pursuant to
this Section 16.01 only if the Note (together with all necessary
endorsements) so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Repurchase Notice.


 


The Company shall repurchase from the holder thereof,
pursuant to this Section 16.01, a portion of a Note, if the principal
amount of such portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to
the repurchase of all of a Note also apply to the repurchase of such portion of
such Note.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 16.01 shall be consummated by the delivery
of the consideration to be received by the holder promptly following the later
of the Business Day immediately following the Repurchase Date and the time of
delivery of the Note (together with all necessary endorsements or notifications
of book-entry transfer).


 


81

















 


Notwithstanding anything herein to the contrary, any
holder delivering to the Paying Agent the Repurchase Notice contemplated by
this Section 16.01 shall have the right to withdraw such Repurchase Notice
by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 16.02 below at any time prior to the Repurchase Expiration
Time.


 


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


 


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


 


(d)                                 In
connection with any repurchase, the Company shall:


 


(i)                                     comply
with the provisions of Rule 13e-4, Rule 14e-1 and other tender offer rules under
the Exchange Act, if required 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 federal and state securities laws in connection with any offer by the
Company to purchase the Notes.


 


Section 16.02. 
Withdrawal of Repurchase Notice. 
A 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 this Section 16.02 at any time prior to the close of
business on the Business Day immediately preceding the Repurchase Date,
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 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.


 


82
















 


Section 16.03.  Deposit of 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 5.04) on or prior to
11:00 a.m., New York City time, on the Repurchase Date an amount of money
sufficient to repurchase all of the Notes to be repurchased at the appropriate
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 Repurchase Expiration Time) will be made promptly following the later of
(i) the Repurchase Date with respect to such Note (provided the holder has
satisfied the conditions in Section 16.01) 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 16.01 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 Repurchase Price.


 


(b)                                 If
by 11:00 a.m., New York City time, on the Repurchase 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
pursuant to Section 16.01, then (i) such Notes will cease to be
outstanding, (ii) interest, including Contingent Interest, if any, and
Additional Interest, if any, will cease to accrue on such Notes, and (iii) all
other rights of the holders of such Notes will terminate (other than the right
to receive the Repurchase Price, and previously accrued but unpaid interest,
including Contingent Interest, if any, and Additional Interest, if any, upon
delivery of the 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.


 


(c)                                  Upon
surrender of a Note that is to be repurchased in part pursuant to Section 16.01,
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.


 


Section 16.04. 
Repurchase at Option of Holders upon a Fundamental Change.


 


(a)                                  If
there shall occur a Fundamental Change at any time prior to the Maturity Date,
then each Noteholder shall have the right, at such holder’s option, to require
the Company to repurchase for cash all of such holder’s Notes, or any portion
thereof that is an integral multiple of $1,000 principal amount, on the date
(the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than twenty Business Days and not
more than forty-five Business Days after the date of the Fundamental Change
Company Notice (as defined below) at a repurchase price equal to 100% of the
principal amount thereof, together with accrued and unpaid interest, including
accrued and unpaid Contingent Interest, if any, and accrued and unpaid
Additional Interest, if any, thereon to, but excluding, the Fundamental Change
Repurchase Date (the “Fundamental Change
Repurchase Price”), unless the Fundamental Change Repurchase Date is
after an Interest Record Date and on or prior to the related Interest Payment
Date, in which case interest accrued to the Interest Payment Date will be paid
to holders of the Notes as of such Interest Record Date and the Fundamental Change
Repurchase Price payable to the holder surrendering the Note for repurchase
pursuant to this 


 


83

















 


Section 16.04
shall be equal to 100% of the principal amount of the Notes subject to
repurchase.  Repurchases of Notes under
this Section 16.04 shall be made, at the option of the holder thereof,
upon:


 


(i)                                     delivery
to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in
the form set forth on the reverse of the Note as Annex C thereto on or prior to
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, such
delivery being a condition to receipt by the holder of the Fundamental Change
Repurchase Price therefor; provided
that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 16.04 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 the Indenture;


 


provided, however, that if the Notes are
not in certificated form, the Fundamental Change Repurchase Notice must comply
with appropriate Depositary procedures.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 16.04 shall be consummated by the payment
of the Fundamental Change Repurchase Price promptly following the later of the
Fundamental Change Repurchase Date and the time of the book-entry transfer or
delivery of the Note as described in Section 16.06(a).


 


Notwithstanding anything herein to the contrary, any
holder delivering to the Paying Agent the Fundamental Change Repurchase Notice
contemplated by this Section 16.04 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 16.05 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)                                 On
or before the twentieth day after the occurrence of the effective date of a
Fundamental Change, the Company shall send or caused to be sent by electronic
transmission or 


 


84

















 


by
first-class mail, postage prepaid, to all holders of record of the Notes (and
to beneficial owners if required by applicable law) a 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 shall also 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 and whether the Fundamental Change is
a Make-Whole Fundamental Change, in which case the effective date of the
Make-Whole Fundamental Change;


 


(iii)                               the last date on which a
holder may exercise the repurchase right pursuant to this Section 16.04;


 


(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)                           if applicable, the
applicable Conversion Rate, 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 of the Indenture;


 


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


 


(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.


 


At the
Company’s request, the Trustee shall give any Fundamental Change Company Notice
in the Company’s name and provided to the Trustee at the Company’s expense; provided that the Company must make such
request at least seven Business Days (or such shorter period as may be
satisfactory to the Trustee) prior to the date by which the Fundamental Change
Repurchase Notice must be given to holders in accordance with this Section 16.04(b).  No failure of the Company to give the a
Fundamental Change Company Notice  and no
defect therein shall limit 


 


85

















 


the
Noteholders’ repurchase rights or affect the validity of the proceedings for
the repurchase of the Notes pursuant to this Section 16.04.


 


(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 shall:


 


(i)                                     comply
with the provisions of Rule 13e-4, Rule 14e-1 and any other tender
offer rules under the Exchange Act, if required 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 federal and state securities laws in connection with any offer by the
Company to purchase the Notes.


 


Section 16.05. 
Withdrawal of Fundamental Change Repurchase Notice.


 


(a)                                  A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the Corporate Trust Office of the Paying
Agent in accordance with this Section 16.05 at any time prior to the close
of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, 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 16.06. 
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 5.04) on or prior to
11:00 a.m., New York City time, on the Fundamental Change Repurchase Date
an amount of money sufficient to repurchase all of the 


 


86

















 


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 promptly following the later of (i) the
Fundamental Change Repurchase Date with respect to such Note (provided the
holder has satisfied the conditions in Section 16.04) 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 16.04 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 Fundamental Change Repurchase
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 as a result of the corresponding Fundamental Change, then (i) such
Notes will cease to be outstanding, (ii) interest, including Contingent
Interest, if any, and Additional Interest, if any, will cease to accrue on such
Notes, and (iii) all other rights of the holders of such Notes will
terminate (other than the right to receive the Fundamental Change Repurchase
Price, and previously accrued but unpaid interest, including Contingent
Interest, if any, and Additional Interest, if any, upon delivery of the 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.


 


(c)                                  Upon
surrender of a Note that is to be repurchased in part pursuant to 16.04, 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
XVII



TAX TREATMENT


 


Section 17.01. 
Contingent Debt Tax Treatment.


 


(a)                                  The
Company and each Noteholder, by acquiring a beneficial interest in a Note,
agree (except to the extent otherwise required by final administrative or
judicial determination to the contrary) (i) to treat the Note as
indebtedness for U.S. federal income tax purposes that is subject to Treasury
regulation Section 1.1275-4 or any successor thereto (the “Contingent Debt
Regulations”), (ii) that each Noteholder shall be bound by the Company’s
application of the Contingent Debt Regulations to the Note, including the
Company’s determination of the “comparable yield” and “projected payment
schedule” within the meaning of the Contingent Debt Regulations, (iii) to
treat the cash and the fair market value of any Common Stock received upon the
conversion of the Note as a contingent payment for purposes of the Contingent
Debt Regulations, (iv) to accrue interest with respect to the outstanding
Note as Tax Original Issue Discount according to the “noncontingent bond method”
set forth in the Contingent Debt Regulations, using the comparable yield of
9.375% compounded semi-annually and (v) that the 


 


87

















 


Company
and each Noteholder will not take any position on any U.S. federal income tax
return that is inconsistent with (i), (ii), (iii) or (iv) unless
required by final administrative or judicial determination to the
contrary.  A Noteholder may obtain the
issue price, the amount of Tax Original Issue Discount, issue date, yield to
maturity, comparable yield and projected payment schedule for the Notes, as
determined by the Company pursuant to the Contingent Debt Regulations, by
submitting a written request to the Company at the following address: 600 Hale
Street, Prides Crossing, Massachusetts 01965, Attention: Chief Financial
Officer.


 


(b)                                 Each
Note shall bear a legend relating to U.S. federal income tax matters in the
form set forth in Exhibit B.


 


Section 17.02. 
Calculation of Tax Original Issue Discount.  The Company shall file with the Trustee
promptly at the end of each calendar year (i) a written notice specifying
the amount of Tax Original Issue Discount (including daily rates and accrual
periods) accrued on outstanding Notes as of the end of such year and (ii) such
other specific information relating to such Tax Original Issue Discount as may
then be required under the Internal Revenue Code of 1986, as amended, or the
Treasury regulations promulgated thereunder.


 


ARTICLE
XVIII



MISCELLANEOUS PROVISIONS


 


Section 18.01. 
Provisions Binding on Company’s Successors.  All the covenants, stipulations, promises and
agreements of the Company contained in this Indenture shall bind its successors
and assigns whether so expressed or not.


 


Section 18.02. 
Official Acts by Successor Corporation.  Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation or other entity that shall at the time be the lawful sole successor
of the Company.


 


Section 18.03. 
Addresses for Notices, Etc. 
Any notice or demand that by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Noteholders on the
Company shall be deemed to have been sufficiently given or made, for all
purposes if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is
filed by the Company with the Trustee) to Affiliated Managers Group, Inc.,
600 Hale Street, Prides Crossing, Massachusetts 01965, Attention: Chief
Financial Officer.  Any notice,
direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served
by a facsimile transmission or being deposited postage prepaid by registered or
certified mail in a post office letter box addressed to the Corporate Trust
Office.


 


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


 


88

















 


Any notice or communication mailed to a Noteholder
shall be mailed to it by first class mail, postage prepaid, at its address as
it appears on the Note Register and shall be sufficiently given to it if so
mailed within the time prescribed.


 


Failure to mail a notice or communication to a
Noteholder or any defect in it shall not affect its sufficiency with respect to
other Noteholders.  If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.


 


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


 


Section 18.04. 
Governing Law.  THE
INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS INDENTURE AND THE NOTES, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS
AND RULES 327(B).


 


Section 18.05. 
Evidence of Compliance with Conditions Precedent; Certificates and
Opinions of Counsel to Trustee.  Upon
any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers’ Certificate stating that such action is permitted by the
terms of this Indenture.


 


Each certificate provided for by or on behalf of the
Company in this Indenture and delivered to the Trustee with respect to
compliance with this Indenture (other than the Officers’ Certificates provided
for in Section 5.08) shall include (a) a statement that the Person
making such certificate is familiar with the requested action and this
Indenture; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement contained in such
certificate is based; (c) a statement that, in the judgment of such
person, he or she has made such examination or investigation as is necessary to
enable him or her to express an informed judgment as to whether or not such
action is permitted by this Indenture; and (d) a statement as to whether
or not, in the judgment of such Person, such action is permitted by this
Indenture.


 


Notwithstanding anything to the contrary in this Section 18.05,
if any provision in this Indenture specifically provides that the Trustee shall
or may receive an Opinion of Counsel in connection with any action to be taken
by the Trustee or the Company hereunder, the Trustee shall receive such Opinion
of Counsel.


 


Section 18.06. 
Legal Holidays.  In any
case where any Interest Payment Date, Redemption Date, Repurchase Date,
Fundamental Change Repurchase Date, Conversion Date or Maturity Date is not be
a Business Day, then any action to be taken on such date need not be taken on
such date, but may be taken on the next succeeding Business Day with the same
force and effect as if taken on such date, and no interest shall accrue for the
period from and after such date.


 


89

















 


Section 18.07. 
No Security Interest Created. 
Nothing in this 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 18.08. 
Trust Indenture Act.  This
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 upon such qualification regardless of
whether this Indenture shall ever be so qualified; provided that this Section 18.08 shall not require that
this Indenture or the Trustee be qualified under the Trust Indenture Act prior
to the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time such
qualification is in fact required under the terms of 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 18.09. 
Benefits of Indenture. 
Nothing in this 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 Indenture.


 


Section 18.10. 
Table of Contents, Headings, Etc. 
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.


 


Section 18.11. 
Authenticating Agent.  The
Trustee may appoint an authenticating agent that shall be authorized to act on
its behalf and subject to its direction in the authentication and delivery of
Notes in connection with the original issuance thereof and transfers and
exchanges of Notes hereunder, including under Section 2.05, Section 2.06,
Section 2.07, Section 2.08, Section 3.06, Section 11.04, Section 15.02,
Section 16.03 and Section 16.06 as fully to all intents and purposes
as though the authenticating agent had been expressly authorized by this
Indenture and those Sections to authenticate and deliver Notes.  For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be
deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustee’s certificate of authentication.  Such authenticating agent shall at all times
be a Person eligible to serve as trustee hereunder pursuant to Section 8.09.


 


Any corporation or other entity into which any authenticating
agent may be merged or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger, consolidation or
conversion to which any authenticating agent shall be a party, or any
corporation or other entity succeeding to all or substantially all of the
corporate trust business of any authenticating agent, shall be the successor of
the authenticating agent hereunder, if such successor corporation or other
entity is otherwise eligible under this Section 


 


90

















 


18.11, without the execution or filing of any paper or
any further act on the part of the parties hereto or the authenticating agent
or such successor corporation or other entity.


 


Any authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate the
agency of any authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any authenticating agent shall cease to be eligible
under this Section, the Trustee may appoint a successor authenticating agent
(which may be the Trustee), shall give written notice of such appointment to
the Company and shall mail notice of such appointment to all Noteholders as the
names and addresses of such holders appear on the Note Register.


 


The Company agrees to pay to the authenticating agent
from time to time reasonable compensation for its services although the Company
may terminate the authenticating agent, if it determines such agent’s fees to
be unreasonable.


 


The provisions of Section 8.02, Section 8.03,
Section 8.04, Section 9.03 and this Section 18.11 shall be
applicable to any authenticating agent.


 


If an authenticating agent is appointed pursuant to
this Section 18.11, the Notes may have endorsed thereon, in addition to
the Trustee’s certificate of authentication, an alternative certificate of
authentication in the following form:


 


	
   

  	
   

  	
  ,

  
	
   

  	
  as Authenticating
  Agent, certifies that this is one of the Notes

  
	
   

  	
  described in the
  within-named Indenture.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  
				



 


Section 18.12. 
Execution in Counterparts. 
This 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 18.13. 
Severability.  In the event
any provision of this 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.


 


Section 18.14. 
Waiver of Jury Trial.  EACH
OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.


 


Section 18.15. 
Force Majeure.  In no event
shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work 


 


91

















 


stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall
use reasonable efforts that are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.


 


Section 18.16. 
Calculations in Respect of the Notes.


 


The Company and its agents shall make all calculations
under this Indenture and the Notes (including, without limitation, the Last
Reported Sale Price, accrued interest payable and the Conversion Rate) in good
faith.  In the absence of manifest error,
such calculations shall be final and binding on all holders.  The Company shall provide a copy of such
calculations to the Trustee and the Conversion Agent as required hereunder, and
both of the Trustee and Conversion Agent shall be entitled to rely conclusively
on the accuracy of any such calculation without independent verification.  The Trustee shall forward the Company’s
calculations to any Noteholder upon the written request of that Noteholder.


 


92

















 


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


 


	
   

  	
  AFFILIATED MANAGERS GROUP, 

  
	
   

  	
   

  	
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Kingston, III

  
	
   

  	
   

  	
  Name: John Kingston, III

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President, General

  
	
   

  	
   

  	
   

  	
  Counsel and Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON 

  
	
   

  	
   

  	
  TRUST COMPANY, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vaneta Bernard

  
	
   

  	
   

  	
  Name: Vaneta Bernard

  
	
   

  	
   

  	
  Title: Vice President

  
					



 


93
















EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]


 


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


 


THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS THE LATER OF ONE YEAR
AFTER THE LAST ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY IS
FREELY TRADABLE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT WITHOUT
VOLUME RESTRICTIONS BY HOLDERS OTHER THAN AFFILIATES OF AFFILIATED MANAGERS
GROUP, INC. (THE “COMPANY”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED OR
OTHERWISE BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS
OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION 


 


A-1

















 


SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.


 


[INSERT TAX LEGEND (SEE EXHIBIT B)]


 


A-2

















 


AFFILIATED MANAGERS GROUP, INC.


 


3.95% Convertible Senior Note due 2038


 


	
  No. [    ]

  	
   

  	
  $[    ]

  
	
   

  	
   

  	
   

  
	
  CUSIP
  No. [    ]

  	
   

  	
   

  



 


Affiliated Managers Group, Inc., a Delaware
corporation (the “Company”), for
value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [    ] dollars
($[    ]) on August 15, 2038 and to pay interest
thereon, as provided on the reverse hereof, until the principal and any unpaid
and accrued interest are paid or duly provided for.


 


Interest Payment Dates: February 15 and August 15,
with the first payment to be made on February 15, 2009.


 


Record Dates: February 1 and August 1.


 


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


 


A-3

















 


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


 


	
   

  	
  AFFILIATED
  MANAGERS GROUP, 

  
	
   

  	
   

  	
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Dated:


 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

as Trustee, certifies that this is one of the Notes described


in the within-named Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-4

















 


[FORM OF REVERSE OF NOTE]


 


AFFILIATED MANAGERS GROUP, INC.

3.95% Convertible Senior Note due 2038


 


1.                                       Interest. 
This Note shall bear interest at the rate of 3.95% per year (subject to
increase pursuant to the Indenture (as defined below)) from August 6,
2008, or from the most recent date to which interest had been paid or provided
for to, but excluding, the next scheduled Interest Payment Date until August 15,
2038.  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.  Interest will be computed
on the basis of a 360-day year of twelve 30-day months.  The Company also will pay Additional Interest
as provided for, and under the circumstances specified in, Section 5.10
and Section 7.01 of the Indenture and will pay Contingent Interest as
provided for, and under the circumstances specified in, Article 14 of the
Indenture


 


2.                                       Maturity. 
The Notes will mature on August 15, 2038.


 


3.                                       Method of Payment.  Payment of the principal of and premium
(including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price), if any, and accrued and unpaid interest and Contingent
Interest, if any, and Additional Interest, if any, on this Note shall be made
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.  Subject to the terms and conditions of the
Indenture, payment in respect of the Redemption Price, the Repurchase Price,
the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, will be made to the holder who surrenders a
Note to a Paying Agent to collect such payments in respect of the Note.  If a payment date falls on a date that is not
a Business Day, payment shall be postponed until the next succeeding Business
Day, and no interest or other amount shall be paid as a result of any such
postponement.


 


4.                                       Paying Agent, Registrar, Conversion Agent.  Initially, The Bank of New York Mellon Trust
Company, N.A. (the “Trustee”) will
act as Paying Agent, Note Registrar and Conversion Agent.  The Company may change any Paying Agent, Note
Registrar or Conversion Agent without notice.


 


5.                                       Indenture. 
The Company issued the Notes under an Indenture dated as of August 6,
2008 (the “Indenture”) between the
Company and the Trustee.  The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb) (the “Trust Indenture Act”)
as amended and in effect from time to time. 
The Notes are subject to all such terms, and holders are referred to the
Indenture and the TIA for a statement of such terms.  In the case of any conflict between the
provisions of this Note and the Indenture, the provisions of the Indenture
shall control.  The Notes are general
unsecured senior obligations of the Company limited to $400,000,000 aggregate
principal amount ($460,000,000 if the Initial Purchaser has elected to exercise
its option in full as set forth in the Purchase Agreement), except as otherwise
provided in the Indenture (except for Notes issued in substitution for
destroyed, mutilated, lost or


 


A-5

















 


stolen Notes). 
Terms used herein without definition and which are defined in the
Indenture have the meanings assigned to them in the Indenture.


 


6.                                       Optional Redemption.  Prior to August 15, 2013, the Notes
shall not be redeemable at the Company’s option.  On or after August 15, 2013, the
Company, at its option, may redeem the Notes for cash at any time, in whole or
in part, at a redemption price (the “Redemption Price”) equal to 100% of the
principal amount of the Notes redeemed, plus any accrued and unpaid interest,
accrued and unpaid Contingent Interest, if any, and accrued and unpaid
Additional Interest, if any, on the Notes redeemed up to, but not including,
the Redemption Date; provided however,
that, in no event shall a Redemption Date be a Legal Holiday; provided further, that, if the Redemption
Date is on a date that is after an Interest Record Date and on or prior to the
corresponding Interest Payment Date, the Redemption Price shall be 100% of the
principal amount of the Notes redeemed but shall not include accrued and unpaid
interest, accrued and unpaid Contingent Interest, if any, and Additional
Interest, if any.  Instead, the Company
shall pay such interest, Contingent Interest, if any, and Additional Interest,
if any, on the Interest Payment Date to the holder of record on the
corresponding Interest Record Date. 
Notwithstanding the foregoing, no Notes may be redeemed by the Company
if the principal amount of the Notes has been accelerated and such acceleration
has not been rescinded on or prior to the Redemption Date (except in the case
of an acceleration resulting from a default by the Company in the payment of
the Redemption Price with respect to such Notes).


 


7.                                       Notice of Redemption.  Notice of Redemption will be sent by
electronic transmission or by first-class mail, postage prepaid, at least
thirty (30) days but not more than sixty (60) days before the Redemption Date
to each holder of Notes to be redeemed at its address appearing in the Note
Register.  Notes in denominations larger
than $1,000 principal amount may be redeemed in part but only in integral
multiples of $1,000 principal amount.


 


8.                                       Purchase by the Company at the Option of the Holder.  Subject to the terms and conditions of the
Indenture, on each of August 15, 2013, August 15, 2018, August 15,
2023, August 15, 2028 and August 15, 2033 (each, a “Repurchase Date”), each holder shall have
the option to require the Company to repurchase Notes for which that holder has
properly delivered and not withdrawn a written Repurchase Notice (in the form
set forth below as Annex B) at a repurchase price in cash equal to 100% of the
principal amount of those Notes, plus accrued and unpaid interest, accrued and unpaid
Contingent Interest, if any, and accrued and unpaid Additional Interest, if
any, on those Notes, to, but not including, such Repurchase Date (the “Repurchase Price”); provided that, if the Repurchase Date is
on a date that is after an Interest Record Date and on or prior to the
corresponding Interest Payment Date, the Repurchase Price shall be 100% of the
principal amount of the Notes repurchased but shall not include accrued and
unpaid interest, Contingent Interest, if any, and Additional Interest, if
any.  Instead, the Company shall pay such
accrued and unpaid interest, Contingent Interest, if any, and Additional
Interest, if any, on the Interest Payment Date, to the holder of Record on the
corresponding Interest Record Date.


 


9.                                       Repurchase at Option of Holder Upon a Fundamental
Change.  Subject to the terms
and conditions of the Indenture, if there shall occur a Fundamental Change at
any time prior to the Maturity Date, then each Noteholder shall have the right,
at such holder’s option, to require the Company to repurchase for cash all of
such holder’s Notes, or any portion thereof 


 


A-6

















 


that is an integral multiple of $1,000 principal
amount, on the date (the “Fundamental Change
Repurchase Date”) specified by the Company that is not less than
twenty Business Days and not more than forty-five Business Days after the date
of the Fundamental Change Company Notice at a repurchase price equal to 100% of
the principal amount thereof, together with accrued and unpaid interest,
including accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental
Change Repurchase Date (the “Fundamental
Change Repurchase Price”), unless the Fundamental Change Repurchase
Date is after an Interest Record Date and on or prior to the related Interest
Payment Date, in which case interest accrued to the Interest Payment Date will
be paid to holders of the Notes as of such Interest Record Date and the Fundamental
Change Repurchase Price payable to the holder surrendering the Note for
repurchase pursuant to this paragraph 9 shall be equal to 100% the principal
amount of the Notes subject to repurchase.


 


10.                                 Conversion. 
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 at the
applicable Conversion Rate specified in the Indenture.  Upon conversion of a Note, the Company will
satisfy its conversion obligation by paying or delivering, as the case may be,
cash, shares of Common Stock or a combination of cash and shares of Common
Stock, in accordance with the terms of the Indenture.


 


The initial Conversion Rate is 7.9586 shares of Common
Stock per $1,000 principal amount of Notes (which results in an effective
initial Conversion Price of approximately $125.65 per share) subject to
adjustment in the event of certain circumstances as specified in the Indenture,
including upon the occurrence of a Make-Whole Fundamental Change.  The Company will deliver cash in lieu of any
fractional share.


 


A Note in respect of which a holder had delivered a
Fundamental Change Purchase Notice or a Repurchase Notice exercising the option
of such holder to require the Company to purchase such Note may be converted
only if the Fundamental Change Purchase Notice or Repurchase Notice, as the
case may be, is withdrawn in accordance with the terms of the Indenture.


 


11.                                 Denominations, Transfer, Exchange.  The Notes are in registered form, without
coupons, in denominations of $1,000 principal amount and integral multiples of
$1,000 principal amount.  The transfer of
Notes may be registered and Notes may be exchanged as provided in the
Indenture.  All Notes presented or
surrendered for registration of transfer or for exchange, redemption,
repurchase or conversion shall (if so required by the Company, the Trustee, the
Note Registrar or any co-registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and duly executed, by the Noteholder thereof or its attorney-in-fact
duly authorized in writing.  No service
charge shall be made for any such registration of transfer or exchange, but the
Company and the Trustee may require payment of a sum sufficient to cover any
tax or similar governmental charge that may be imposed in connection with
certain transfers or exchanges.  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, 


 


A-7

















 


such portion thereof surrendered for conversion, (ii) any
Note selected for redemption or, if a portion of any Note is selected for
redemption, such portion thereof selected for redemption or (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn)
in accordance with Article 16 of the Indenture.


 


12.                                 Persons Deemed Owners.  The registered holder of a Note may be
treated as the owner of such Note for all purposes.


 


13.                                 Merger or Consolidation.  Except as provided in the Indenture, the
Company shall not consolidate with, or merge with or into, or sell, convey,
transfer, lease its properties and assets substantially as an entirety to
another Person, unless (i) the resulting, surviving or transferee Person
(the “Successor Company”), if not
the Company, shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia,
and the Successor Company (if not the Company) shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Notes, this Indenture; and (ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing under the Indenture.


 


14.                                 Amendments, Supplements and Waivers.  Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the consent of the holders of
at least a majority in aggregate principal amount of the outstanding Notes, and
certain existing Defaults or Events of Default may be waived with the consent
of the holders of a majority in aggregate principal amount of the Notes then
outstanding.  In accordance with the
terms of the Indenture, the Company, with the consent of the Trustee, may amend
or supplement this Indenture or the Notes without notice to or the consent of
any Noteholder, including, but not limited to, to cure any ambiguity, defect,
omission or inconsistency in the Indenture or conform the terms of the
Indenture to the description thereof in the Offering Memorandum and to make any
other change that does not materially and adversely affect the rights of any
holder.


 


15.                                 Defaults and Remedies.  In case one or more Events of Default shall
have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), then, and in each and
every such case (other than as a result of certain events of bankruptcy,
insolvency or reorganization specified in the Indenture), unless the principal
of all of the Notes shall have already become due and payable, either the
Trustee or the holders of at least 25% in aggregate principal amount of the
Notes then outstanding may declare 100% of the principal of and premium, if
any, and accrued and unpaid interest, accrued and unpaid Contingent Interest,
if any, and accrued and unpaid Additional Interest, if any, on all the Notes to
be due and payable immediately, and upon any such declaration the same shall
become and shall automatically be immediately due and payable, all as and to
the extent, and subject to the exceptions, provided in the Indenture.  If an Event of Default as a result of certain
events of bankruptcy, insolvency or reorganization specified in the Indenture
occurs and is continuing, the principal of all the Notes and accrued and unpaid
interest, accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Additional Interest, if any, shall be immediately due and 


 


A-8

















 


payable without any declaration or other act on the
part of the Trustee or any holder, all as and to the extent provided in the
Indenture.


 


Holders may not enforce the Indenture or the Notes
except as provided in the Indenture.  The
holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it.  However, the Trustee
may refuse to follow any direction that conflicts with any rule of law or
the Indenture, is unduly prejudicial to the rights of other holders or would
involve the Trustee in personal liability and the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.  The Trustee may withhold
notice of any continuing default (except a default in payment of any amounts
due with respect to any Note), if it in good faith determines that, withholding
the notice is in the best interests of holders. 
The Company must deliver to the Trustee an annual compliance
certificate.


 


16.                                 No Recourse Against Others.  No past, present or future director, officer,
employee or shareholder, as such, of the Company shall have any liability for
any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation.  Each holder, by accepting a
Note, waives and releases all such liability. 
The waiver and release are part of the consideration for the issue of
the Notes.


 


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


 


18.                                 Governing Law.  THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS NOTE, INCLUDING WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B).


 


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


 


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


 


AFFILIATED MANAGERS GROUP, INC.


600 HALE STREET


PRIDES CROSSING, MASSACHUSETTS 01965


ATTENTION: CHIEF FINANCIAL OFFICER


 


A-9

















 


SCHEDULE A


 


AFFILIATED MANAGERS GROUP, INC.

3.95% Convertible Senior Notes due 2038


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of decrease in 

  Principal Amount of 

  this Global Note

  	
   

  	
  Amount of increase in 

  Principal Amount of 

  this Global Note

  	
   

  	
  Principal Amount of this

   Global Note following 

  such decrease or increase

  	
   

  	
  Signature of 

  authorized signatory 

  of Trustee or 

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10
















 


ANNEX A


 


NOTICE OF CONVERSION


 


To:
AFFILIATED MANAGERS GROUP, INC.


 


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, shares of
Common Stock or a combination of cash and shares of Common Stock, as
applicable, in accordance with the terms of the Indenture referred to in this
Note, and directs that any shares of Common Stock issuable and deliverable upon
such conversion, together with any cash comprising the Daily Conversion Values
or a portion of the Daily Settlement Amounts for each of the twenty Trading
Days during the Cash Settlement Averaging Period and for any 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.


 


	
  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 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)

  	
   

  	
   

  



 


A-11

















 


	
   

  	
   

  	
   

  
	
  (City, State and Zip
  Code)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please print name and
  address.

  	
   

  	
   

  
	
   

  	
   

  	
  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

  



 


A-12

















 


ANNEX
B


 


REPURCHASE NOTICE


 


To:
AFFILIATED MANAGERS GROUP, INC.


 


The undersigned registered owner of this Note hereby acknowledges
receipt of a notice from AFFILIATED MANAGERS GROUP, INC. (the “Company”) as to
the occurrence of a Repurchase Date and specifying the 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 Repurchase Date does not fall during the
period after an Interest Record Date and on or prior to the corresponding
Interest Payment Date, accrued and unpaid interest, including Contingent
Interest, if any, and Additional Interest, if any, thereon to, but excluding,
such 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.

  



 


A-13

















 


ANNEX
C


 


FUNDAMENTAL CHANGE
REPURCHASE NOTICE


 


To:
AFFILIATED MANAGERS GROUP, INC.


 


The undersigned registered owner of this Note hereby acknowledges
receipt of a notice from AFFILIATED MANAGERS GROUP, INC. (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
an Interest Record Date and on or prior to the corresponding Interest Payment
Date, accrued and unpaid interest, including Contingent Interest, if any, and
Additional Interest, if any, 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.

  



 


A-14

















 


ANNEX
D


 


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.


 


In connection with any transfer of the within Note occurring prior to
the Resale Restriction Termination Date, as defined in the Indenture governing
such Note, the undersigned confirms that such Note is being transferred:


 


o                        To
Affiliated Managers Group, Inc. or a subsidiary thereof; or


 


o                        Pursuant
to a registration statement that has become or been declared effective under
the Securities Act of 1933, as amended; or


 


o                        Pursuant
to and in compliance with Rule 144A under the Securities Act of 1933, as
amended; or


 


o                        Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or


 


o                        Pursuant
to another available exemption from registration under the Securities Act of
1933, as amended.


 


	
  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.

  	
   

  	
   

  



 


A-15

















 


EXHIBIT
B


 


FORM OF TAX LEGEND


 


THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE
DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273, AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.  THE COMPANY AGREES, AND, BY ACCEPTING A
BENEFICIAL OWNERSHIP INTEREST IN THIS SECURITY, EACH HOLDER OF THIS SECURITY
WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES (1) TO
TREAT THIS SECURITY AS A DEBT INSTRUMENT THAT IS SUBJECT TO TREAS. REG. SEC.
1.1275-4 (THE “CPDI REGULATIONS”), (2) TO TREAT THE FAIR MARKET VALUE OF
ANY STOCK RECEIVED UPON ANY CONVERSION OF THIS SECURITY OR UPON A PURCHASE OF
THIS SECURITY AT THE HOLDER’S OPTION AS A CONTINGENT PAYMENT FOR PURPOSES OF
THE CPDI REGULATIONS, AND (3) TO ACCRUE INTEREST WITH RESPECT TO THE
SECURITY AS ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES ACCORDING TO THE “NONCONTINGENT BOND METHOD,” SET FORTH IN THE CPDI
REGULATIONS, AND TO BE BOUND BY THE COMPANY’S DETERMINATION OF THE “COMPARABLE
YIELD” AND “PROJECTED PAYMENT SCHEDULE,” WITHIN THE MEANING OF THE CPDI
REGULATIONS, WITH RESPECT TO THIS SECURITY. THE COMPANY AGREES TO PROVIDE
PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE
OF THIS SECURITY, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD TO
MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE. ANY SUCH WRITTEN
REQUEST SHOULD BE SENT TO THE COMPANY AT THE FOLLOWING ADDRESS: AFFILIATED
MANAGERS GROUP, INC., 600 HALE STREET, PRIDES CROSSING, MASSACHUSETTS 01965,
ATTENTION: CHIEF FINANCIAL OFFICER.


 


B-1