exv4w1



 






EXHIBIT 4.1




CAL DIVE INTERNATIONAL, INC.




3.25% Convertible Senior Notes Due 2025










INDENTURE




Dated as of March 30, 2005










JPMORGAN CHASE BANK, NATIONAL ASSOCIATION




TRUSTEE










 









 








Cross-Reference
Table*




	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	(a)(1)
	 	7.10
	 	(a)(2)
	 	7.10
	 	(a)(3)
	 	N.A.
	 	(a)(4)
	 	N.A.
	 	(a)(5)
	 	N.A.
	 	(b)
	 	7.08, 7.10
	 	(c)
	 	N.A.
	311
	(a)
	 	7.11
	 	(b)
	 	7.11
	 	(c)
	 	N.A.
	312
	(a)
	 	2.05
	 	(b)
	 	12.03
	 	(c)
	 	12.03
	313
	(a)
	 	7.06
	 	(b)(1)
	 	7.06
	 	(b)(2)
	 	7.06
	 	(c)
	 	12.02
	 	(d)
	 	7.06
	314
	(a)
	 	4.02
	 	(b)
	 	N.A.
	 	(c)(1)
	 	12.04
	 	(c)(2)
	 	12.04
	 	(c)(3)
	 	N.A.
	 	(d)
	 	N.A.
	 	(e)
	 	12.05
	 	(f)
	 	4.04
	315
	(a)
	 	7.01(a)
	 	(b)
	 	7.05
	 	(c)
	 	7.01
	 	(d)
	 	7.01(c)
	 	(e)
	 	6.11
	316
	(a)(1)(A)
	 	6.05
	 	(a)(1)(B)
	 	6.04
	 	(a)(2)
	 	N.A.
	 	(b)
	 	6.07
	 	(c)
	 	1.05(e)
	317
	(a)(1)
	 	6.08
	 	(a)(2)
	 	6.09
	 	(b)
	 	2.04
	318
	(a)
	 	12.01












     N.A. means not applicable.
 








	*	 	This Cross-Reference Table is not part of the
Indenture.




 









 










TABLE OF CONTENTS







	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	Definitions and Incorporation by Reference
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions.
	 	 	1	 
	Section 1.02. Other Definitions.
	 	 	9	 
	Section 1.03. Incorporation By Reference Of Trust Indenture Act
	 	 	10	 
	Section 1.04. Rules of Construction
	 	 	10	 
	Section 1.05. Acts of Holders.
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	The Securities
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	12	 
	Section 2.02. Execution and Authentication
	 	 	13	 
	Section 2.03. Registrar, Paying Agent and Conversion Agent.
	 	 	13	 
	Section 2.04. Paying Agent to Hold Money and Securities in Trust
	 	 	14	 
	Section 2.05. Securityholder Lists
	 	 	14	 
	Section 2.06. Transfer and Exchange
	 	 	15	 
	Section 2.07. Replacement Securities
	 	 	16	 
	Section 2.08. Outstanding Securities; Determinations of Holders’ Action
	 	 	17	 
	Section 2.09. Temporary Securities
	 	 	18	 
	Section 2.10. Cancellation
	 	 	18	 
	Section 2.11. Persons Deemed Owners
	 	 	19	 
	Section 2.12. Global Securities
	 	 	19	 
	Section 2.13. CUSIP Numbers
	 	 	25	 
	Section 2.14. Contingent Debt Tax Treatment
	 	 	25	 
	Section 2.15. Calculation of Tax Original Issue Discount
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	Redemption and Repurchases
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Company’s Right to Redeem; Notices to Trustee
	 	 	26	 
	Section 3.02. Selection of Securities to Be Redeemed
	 	 	27	 
	Section 3.03. Notice of Redemption
	 	 	27	 
	Section 3.04. Effect of Notice of Redemption
	 	 	28	 
	Section 3.05. Deposit of Redemption Price
	 	 	28	 
	Section 3.06. Securities Redeemed in Part
	 	 	29	 
	Section 3.07. Repurchase of Securities by the Company at Option of the Holder
	 	 	29	 
	
Section 3.08. Repurchase of Securities at Option of the Holder Upon a Fundamental Change
	 	 	31	 
	Section 3.09. Effect of Repurchase Notice or Fundamental Change Repurchase Notice.
	 	 	34	 






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	 	 	Page	 
	Section 3.10. Deposit of Repurchase Price or Fundamental Change Repurchase Price
	 	 	35	 
	Section 3.11. Securities Purchased in Part
	 	 	36	 
	Section 3.12. Covenant to Comply with Securities Laws upon Purchase of Securities
	 	 	36	 
	Section 3.13. Repayment to the Company
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	Covenants
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Securities
	 	 	36	 
	Section 4.02. SEC and Other Reports
	 	 	37	 
	Section 4.03. Compliance Certificate
	 	 	37	 
	Section 4.04. Further Instruments and Acts
	 	 	37	 
	Section 4.05. Maintenance of Office or Agency
	 	 	37	 
	Section 4.06. Delivery of Certain Information
	 	 	38	 
	Section 4.07. Additional Amounts Notice
	 	 	38	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	Successor Person
	 	 	 	 
	 
	 	 	 	 
	Section 5.01. When Company May Merge or Transfer Assets 
	 	 	39	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	Defaults and Remedies
	 	 	 	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	40	 
	Section 6.02. Acceleration
	 	 	42	 
	Section 6.03. Other Remedies
	 	 	42	 
	Section 6.04. Waiver of Past Defaults
	 	 	43	 
	Section 6.05. Control by Majority
	 	 	43	 
	Section 6.06. Limitation on Suits
	 	 	43	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	44	 
	Section 6.08. Collection Suit by Trustee
	 	 	44	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	44	 
	Section 6.10. Priorities
	 	 	45	 
	Section 6.11. Undertaking for Costs
	 	 	45	 
	Section 6.12. Waiver of Stay, Extension or Usury Laws
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01. Duties of Trustee
	 	 	46	 
	Section 7.02. Rights of Trustee
	 	 	47	 
	Section 7.03. Individual Rights of Trustee
	 	 	49	 
	Section 7.04. Trustee’s Disclaimer
	 	 	49	 
	Section 7.05. Notice of Defaults
	 	 	50	 






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	 	 	Page	 
	Section 7.06. Reports by Trustee to Holders
	 	 	50	 
	Section 7.07. Compensation and Indemnity
	 	 	50	 
	Section 7.08. Replacement of Trustee
	 	 	51	 
	Section 7.09. Successor Trustee by Merger
	 	 	52	 
	Section 7.10. Eligibility; Disqualification
	 	 	52	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 8
	 	 	 	 
	Discharge of Indenture
	 	 	 	 
	 
	 	 	 	 
	Section 8.01. Discharge of Liability on Securities
	 	 	53	 
	Section 8.02. Repayment to the Company
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	Amendments
	 	 	 	 
	 
	 	 	 	 
	Section 9.01. Without Consent of Holders
	 	 	53	 
	Section 9.02. With Consent of Holders
	 	 	55	 
	Section 9.03. Compliance With Trust Indenture Act
	 	 	56	 
	Section 9.04. Revocation and Effect of Consents, Waivers and Actions
	 	 	56	 
	Section 9.05. Notation on or Exchange of Securities
	 	 	57	 
	Section 9.06. Trustee to Sign Supplemental Indentures
	 	 	57	 
	Section 9.07. Effect of Supplemental Indentures
	 	 	57	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	Conversions
	 	 	 	 
	 
	 	 	 	 
	Section 10.01. Conversion Privilege
	 	 	57	 
	Section 10.02. Conversion Procedure; Conversion Rate; Fractional Shares
	 	 	62	 
	Section 10.03. Payment Upon Conversion
	 	 	64	 
	Section 10.04. Adjustment of Conversion Rate
	 	 	66	 
	Section 10.05. Effect of Reclassification, Consolidation, Merger or Sale
	 	 	75	 
	Section 10.06. Taxes on Shares Issued
	 	 	76	 
	Section 10.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock
	 	 	77	 
	Section 10.08. Responsibility of Trustee
	 	 	77	 
	Section 10.09. Notice to Holders Prior to Certain Actions
	 	 	78	 
	Section 10.10. Shareholder Rights Plan
	 	 	79	 
	Section 10.11. Unconditional Right of Holders to Convert
	 	 	79	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	Contingent Interest
	 	 	 	 
	 
	 	 	 	 
	Section 11.01. Contingent Interest
	 	 	79	 
	Section 11.02. Payment of Contingent Interest
	 	 	80	 
	Section 11.03. Contingent Interest Notification
	 	 	80	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 12
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	Section 12.01. Trust Indenture Act Controls.
	 	 	80	 
	Section 12.02. Notices
	 	 	80	 
	Section 12.03. Communication by Holders with Other Holders.
	 	 	81	 
	Section 12.04. Certificate and Opinion as to Conditions Precedent
	 	 	82	 
	Section 12.05. Statements Required in Certificate or Opinion
	 	 	82	 
	Section 12.06. Separability Clause
	 	 	82	 
	Section 12.07. Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	82	 
	Section 12.08. legal holidays
	 	 	82	 
	Section 12.09. Governing Law.
	 	 	83	 
	Section 12.10. No Recourse Against Others
	 	 	83	 
	Section 12.11. Successors
	 	 	83	 
	Section 12.12. Multiple Originals
	 	 	83	 
	 
	 	 	 	 
	EXHIBIT A Form of Global Security
	 	 	 	 
	EXHIBIT B Form of Certificated Security
	 	 	 	 
	EXHIBIT C Transfer Certificate
	 	 	 	 
	EXHIBIT D Form of Notice of Redemption
	 	 	 	 
	EXHIBIT E Form of Notice of Repurchase
	 	 	 	 
	EXHIBIT F Notice of Occurrence of Change of Control
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE I Number of Additional Shares
	 	 	 	 






iv









 






     INDENTURE dated as of March 30, 2005 between CAL DIVE INTERNATIONAL, INC., a Minnesota
corporation (“Company”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking
association (“Trustee”).



     Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 3.25% Convertible Senior Notes Due 2025:



ARTICLE 1

Definitions and Incorporation by Reference




     Section 1.01
.. Definitions.



     “144A Global Security” means a permanent Global Security in the form of the Security attached
hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary,
representing Securities sold in reliance on Rule 144A under the Securities Act.



     “Additional Amounts” means the interest that is payable by the Company pursuant to the
Registration Rights Agreement upon a Registration Default (as defined in such agreement).



     “Affiliate” of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For 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.



     “Applicable Procedures” means, with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction and as in effect from time to
time.



     “Bid Solicitation Agent” means the agent of the Company appointed to obtain quotations for the
Securities as set forth under the definition of Trading Price, which such agent shall be appointed
no later than the first Contingent Interest Period and shall at no time be an Affiliate of the
Company. The Company may, from time to time, change the Bid Solicitation Agent.



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



1









 





     “Board Resolution” means a resolution of the Board of Directors.



     “Business Day” means, with respect to any Security, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are authorized or required by
law, regulation or executive order to close in The City of New York.



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



     “Certificated Securities” means Securities that are in the form of the Securities attached
hereto as Exhibit B.



     “Change of Control” means the occurrence at such time after the original issuance of the
Securities when any of the following has occurred:



     (1) a ‘‘person’’ or ‘‘group’’ within the meaning of Section 13(d)(3) of the Exchange Act,
other than the Company, its Subsidiaries or the Company’s or any Subsidiary’s employee benefit
plans, 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 ‘‘beneficial owner,’’ as defined in Rule
13d-3 under the Exchange Act, of shares of Common Stock representing more than 50% of the Voting
Stock; or



     (2) the first day on which a majority of the members of the Board of Directors does not
consist of Continuing Directors; or



     (3) a consolidation, merger or binding share exchange, or any conveyance, transfer, sale,
lease or other disposition of all or substantially all of the Company’s properties and assets to
another Person, other than:




(a) any transaction (i) that does not result in any reclassification, conversion,
exchange or cancellation of Capital Stock and (ii) pursuant to which holders of
the Company’s Capital Stock immediately prior to such transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the total Voting
Stock of the continuing or surviving or successor Person immediately after giving
effect to such issuance; or




(b) any merger, share exchange, transfer of assets or similar transaction solely
for the purpose of changing the Company’s jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of outstanding shares of
Common Stock, if at all, solely into shares of common stock, ordinary shares or
American Depositary Shares of the surviving entity or a direct or indirect parent
of the surviving corporation; or



2









 






(c) any consolidation or merger with or into a Subsidiary, so long as such merger
or consolidation is not part of a plan or a series of transactions designed to or
having the effect of merging or consolidating with any other Person.



     The term “person” includes any syndicate or group that would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act.



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



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



     “Common Stock” means the common stock, no par value, of the Company existing on the date of
this Indenture or any other shares of Capital Stock of the Company into which such Common Stock
shall be reclassified or changed, including, subject to Section 10.05 below, in the event of a
merger, consolidation or other similar transaction involving the Company that is otherwise
permitted hereunder in which the Company is not the surviving Person, the common stock of such
surviving corporation.



     “Company” means the party named as the “Company” in the preamble of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.



     “Company Notice” means a notice to Holders delivered pursuant to Section 3.07 or Section 3.08.



     “Company Request” or “Company Order” means a written request or order signed in the name of
the Company by any Officer.



     “Contingent Interest” means such interest payable as described in Article 11.



     “Contingent Interest Period” means (i) the period commencing on, and including, December 20,
2012 and ending on, and including, June 14, 2013, and (ii) each six-month period from June 15 to
December 14 or from December 15 to June 14 thereafter.



     ‘‘Continuing Director’’ means a director who either was a member of the Board of Directors on
December 31, 2004 or who becomes a member of the Board of Directors subsequent to that date and
whose appointment, election or nomination for election by the Company’s shareholders is duly
approved by a majority of the Continuing Directors on the Board of Directors at the time of such
approval, either by specific vote or by approval of the proxy statement issued by the Company on



3









 





behalf of the Board of Directors in which such individual is named as nominee for director.



     “Conversion Settlement Date” means (A) with respect to the Conversion Settlement Distribution
(other than any Additional Shares which may be issuable pursuant to Section 10.01(c), the third
Business Day immediately following the Cash Settlement Period, and (B) with respect to any
Additional Shares which may be issuable, the later of (i) the fifth Business Day following the
effective date of any Change of Control transaction and (2) the third Business Day immediately
following the Cash Settlement Period.



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



     “Corporate Trust Office” means the designated office of the Trustee at which at any time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 4 New York Plaza, 15th Floor, New York, NY 10004, Attention: Institutional
Trust Services, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by notice to the Holders
and the Company).



     “Current Market Price” of the Common Stock on any day means the average of the Last Reported
Sale Price per share of the Common Stock for each of the ten consecutive Trading Days ending on the
earlier of the day in question and the day before the “Ex-Dividend Date” with respect to the
issuance or distribution requiring such computation, subject to adjustment by the Board of
Directors if another transaction requiring an adjustment to the Conversion Rate pursuant to Section
10.04 occurs during such ten day period.



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



     “Ex-Dividend Date” means the first date upon which a sale of the Common Stock, regular way on
the relevant exchange or in the relevant market for the Common Stock, does not automatically
transfer the right to receive the relevant dividend or distribution from the seller of the Common
Stock to its buyer.



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



     “Fair Market Value”, or “fair market value” means the amount which a willing buyer would pay a
willing seller in an arm’s-length transaction.



     “Fundamental Change” means either a Change of Control or a Termination of Trading.



4









 





     “Global Securities” means Securities that are in the form of the Securities attached hereto as
Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a
nominee thereof, and to the extent that such Securities are required to bear the Legend required by
Section 2.06(g), such Securities shall be in the form of a 144A Global Security.



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



     “Indenture” means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.



     “Interest” means interest payable on each Security pursuant to Section 1 of the Securities.



     “Interest Payment Date” means June 15 and December 15 of each year, commencing June 15, 2005.



     “Interest Record Date” means June 1 and December 1 of each year.



     “Issue Date” of any Security means the date on which the Security was originally issued or
deemed issued as set forth on the face of the Security.



     “Last Reported Sale Price” means, with respect to any security on any date, the closing sale
price (or if no closing sale price is reported, the average of the bid and asked prices or, if more
than one in either case, the average of the average bid and the average asked prices) on that date
as reported by the Nasdaq National Market or, if the Common Stock is not reported by the Nasdaq
National Market, in composite transactions for the principal U.S. national securities exchange on
which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national
or regional securities exchange and not reported by the Nasdaq National Market on the relevant
date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by the National Quotation Bureau or
similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be
the average of the midpoint of the last bid and ask prices for the Common Stock on the relevant
date from each of at least three independent nationally recognized investment banking firms
selected by the Company for this purpose.



     “NYSE” means The New York Stock Exchange, Inc.



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



5









 





     “Officer’s Certificate” means a written certificate containing the information specified in
Sections 12.04 and 12.05, signed in the name of the Company by any Officer, and delivered to the
Trustee. An Officer’s Certificate given pursuant to Section 4.03 shall be signed by the principal
executive officer, principal financial officer or principal accounting officer of the Company but
need not contain the information specified in Sections 12.04 and 12.05.



     “Offering Memorandum” means the offering memorandum of the Company dated March 23, 2005
relating to the offering of the Securities.



     “Opinion of Counsel” means a written opinion containing the information specified in Sections
12.04 and 12.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company
who is reasonably acceptable to the Trustee.



     “Purchase Agreement” means the Purchase Agreement dated March 23, 2005 between the Company, on
the one hand, and Banc of America Securities LLC, as representative of the several initial
purchasers, on the other.



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



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



     “Registration Rights Agreement” means the Registration Rights Agreement, dated the date
hereof, between the Company, on the one hand, and Banc of America Securities LLC, as representative
of the several initial purchasers under the Purchase Agreement, on the other.



     “Responsible Officer” means, when used with respect to the Trustee, any officer of the Trustee
within the Institutional Trust Services department (or any successor department) of the Trustee
located at the Corporate Trust Office of the Trustee who has direct responsibility for the
administration of this Indenture and, for the purposes of Sections 7.01(c)(ii) and 7.05 shall also
mean any other officer of the Trustee to whom any corporate trust matter is referred because of
such person’s knowledge of and familiarity with the particular subject matter.



     “Restricted Security” means a Security required to bear the Legend.



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



6









 





     “SEC” means the Securities and Exchange Commission.



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



     “Security” means any of the Company’s 3.25% Convertible Senior Notes Due 2025, as amended or
supplemented from time to time, issued under this Indenture.



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



     “Stated Maturity”, when used with respect to any Security, means December 15, 2025.



     “Stock Price” means the price per share of Common Stock paid in connection with a Change of
Control transaction pursuant to which Additional Shares are issuable as set forth in Section
10.01(c) hereof, which shall be equal to (i) if Holders of Common Stock receive only cash in such
Change of Control transaction, the cash amount paid per share of Common Stock and (ii) in all other
cases, the average of the Last Reported Sale Prices of the Common Stock on the five Trading Days
prior to, but not including, the effective date of such Change of Control transaction.



     “Subsidiary” means any person of which at least a majority of the outstanding Voting Stock
shall at the time directly or indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.



     “Tax Original Issue Discount” means the amount of ordinary interest income on a Security that
must be accrued as original issue discount for U.S. federal income tax purposes pursuant to
Treasury regulations section 1.1275-4.



     “Termination of Trading” means the occurrence, at any time, of the Common Stock of the Company
(or other common stock into which the Securities are then convertible) being neither listed for
trading on a U.S. national securities exchange nor quoted on the Nasdaq National Market.



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



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



7









 





securities exchange, then on the principal other market on which the Common Stock is then
traded.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid
Solicitation Agent for $5,000,000 principal amount of the Securities at approximately 3:30 p.m.,
New York City time, on such determination date from three independent nationally recognized
securities dealers the Company selects, provided that if three such bids cannot reasonably be
obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation
Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least
one bid for $5,000,000 principal amount of the Securities from a nationally recognized securities
dealer, or in the Company’s reasonable judgment, the bid quotations are not indicative of the
secondary market value of $1,000 principal amount of the Securities, then the Trading Price of the
Securities on any date of determination shall equal the product of (i) the applicable Conversion
Rate for the Securities as of the date of determination and (ii) the average Last Reported Sale
Price of the Common Stock on the five Trading Days ending on such determination date.



     “Treasury regulations” means the U.S. federal income tax regulations, including temporary
regulations, promulgated under the Code, as those regulations may be amended from time to time.
Any reference herein to a specific section of the Treasury regulations shall include any
corresponding provisions of succeeding, similar, substitute, proposed or final Treasury
regulations.



     “Trustee” means the party named as the “Trustee” in the preamble of this Indenture unless and
until a successor replaces it pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.



     “Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant
to which the holders thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



8









 





     Section 1.02. Other Definitions.



	 	 	 
	 	 	Defined in
	Terms:	 	Section:
	“Act”
	 	1.05
	“Accepted Purchased Shares”
	 	10.04(g)
	“Acquisition Value”
	 	10.01(d)
	“Additional Amounts Notice”
	 	4.07
	“Additional Shares
	 	10.01(c)
	“Adjustment Event”
	 	10.04(k)
	“Agent Members”
	 	2.12(e)
	“Bankruptcy Law”
	 	6.01(h)
	“cash”
	 	3.01
	“Cash Amount”
	 	10.03
	“Cash Settlement Period”
	 	10.03
	“contingent debt regulations”
	 	2.14(a)
	“Conversion Agent”
	 	2.03
	“Conversion Date”
	 	10.02(c)
	“Conversion Notice”
	 	10.02(b)
	“Conversion Obligation”
	 	10.01(a)
	“Conversion Rate”
	 	10.02(a)
	“Conversion Settlement Distribution”
	 	10.03
	“Conversion Value”
	 	10.03
	“Depositary”
	 	2.01(b)
	“Determination Date”
	 	10.04(k)
	“Distributed Assets”
	 	10.04(d)
	“DTC”
	 	2.01(b)
	“effective date”
	 	10.01(c)
	“Event of Default”
	 	6.01
	“Exchange Property”
	 	10.01(b)
	“Expiration Time”
	 	10.04(f)
	“Extraordinary Cash Dividend”
	 	10.04(e)
	“Fiscal Quarter”
	 	10.01(a)
	“Fundamental Change Repurchase Date”
	 	3.08(a)
	“Fundamental Change Repurchase Notice”
	 	3.08(c)
	“Fundamental Change Repurchase Price”.
	 	3.08(a)
	“legal holiday”
	 	12.08
	“Legend”
	 	2.06(g)
	“Non-Electing Share”
	 	10.05(b)
	“Notice of Default”
	 	6.01
	“Offer Expiration Time”
	 	10.04(g)
	“Paying Agent”
	 	2.03
	“Public Acquirer Change of Control
	 	10.01(d)
	“Public Acquirer Common Stock”
	 	10.01(d)
	“Purchased Shares”
	 	10.04(f)






9









 






	 	 	 
	 	 	Defined in
	Terms:	 	Section:
	“QIB”
	 	2.01(b)
	“Redemption Price”
	 	3.01
	“Registrar”
	 	2.03
	“Repurchase Date”
	 	3.07(a)
	“Repurchase Notice”
	 	3.07(b)
	“Repurchase Price”
	 	3.07(a)
	“Rule 144A Information”
	 	4.06
	“successor Person”
	 	5.01(a)
	“Trigger Event”
	 	10.04(d)
	“Valuation Period”
	 	10.01(d)






     Section 1.03. Incorporation By Reference Of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the following meanings



     “Commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Securityholder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     “obligor” on the indenture securities means the Company.



     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rules have the meanings assigned to them by such
definitions.



     Section 1.04. Rules of Construction. Unless the context otherwise requires:




	 	(1)  	a term has the meaning assigned to it;
	 
	 	(2)  	an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect from time to time;
	 
	 	(3)  	“or” is not exclusive;
	 
	 	(4)  	“including” means including, without limitation;
	 
	 	(5)  	words in the singular include the plural, and words in the
plural include the singular; and




10









 








	 	(6)  	references to Sections and Articles are to references to
Sections and Articles of this Indenture.





     Section 1.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the Company, as described
in Section 12.02. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.



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



     (c) The principal amount and serial number of any Security and the ownership of Securities
shall be proved by the register for the Securities.



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



     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining



11









 





whether Holders of the requisite proportion of outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.



ARTICLE 2

The Securities




     Section 2.01. Form and Dating. (a) The Securities and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibits A and B, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement required by usage is
in a form acceptable to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of its
authentication. The Securities may, but need not, have the corporate seal of the Company or a
facsimile thereof affixed thereto or imprinted thereon.



     (b) 144A Global Securities. Securities offered and sold within the United States to qualified
institutional buyers as defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued,
initially in the form of a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company (“DTC”) or the nominee thereof (DTC, or any successor thereto,
and any such nominee being hereinafter referred to as the “Depositary”), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount
of the 144A Global Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.



     (c) Global Securities in General. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions, repurchases and conversions.



     Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented thereby shall be made
by the Trustee in accordance with instructions given by the Holder thereof as required by Section
2.12 hereof, and shall be made on the records of the Trustee and the Depositary.



12









 





     (d) Book-Entry Provisions. This Section 2.01(d) shall apply only to Global Securities
deposited with or on behalf of the Depositary.



     The Company shall execute and the Trustee shall, in accordance with this Section 2.01(d),
authenticate and deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depositary or a nominee thereof, (b) shall be delivered by the Trustee to the
Depositary or held by the Trustee pursuant to the Depositary’s instructions and (c) shall be
substantially in the form of Exhibit A attached hereto.



     (e) Certificated Securities. Securities not issued as interests in the Global Securities
shall be issued in certificated form substantially in the form of Exhibit B attached hereto.



     Section 2.02. Execution and Authentication. The Securities shall be executed on behalf of
the Company by two Officers. The signature of two Officers on the Securities may be manual or
facsimile.



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



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



     The Trustee shall authenticate and deliver the Securities for original issue in an aggregate
principal amount of up to $300,000,000 upon one or more Company Orders without any further action
by the Company (other than as contemplated in Section 12.04 and Section 12.05 hereof). The
aggregate principal amount of the Securities due at the Stated Maturity thereof outstanding at any
time may not exceed the amount set forth in the foregoing sentence.



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



     Section 2.03. Registrar, Paying Agent and Conversion Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for exchange
(“Registrar”), an office or agency where Securities may be presented for purchase or payment
(“Paying Agent”) and an office or agency where Securities may be presented for conversion
(“Conversion



13









 





Agent”). The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars, one or more additional paying agents and
one or more additional Conversion Agents. The term Paying Agent includes any additional paying
agent, including any named pursuant to Section 4.05. The term Conversion Agent includes any
additional Conversion Agent, including any named pursuant to Section 4.05.



     The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent,
Conversion Agent, or co-registrar (in each case, if such Registrar, agent or co-registrar is a
Person other than the Trustee). The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall promptly notify the Trustee of the name and address
of any such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 7.07. The Company or any Subsidiary or an Affiliate of either of them may act as Paying
Agent, Registrar, Conversion Agent or co-registrar.



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



     Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as otherwise
provided herein, on or prior to each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and
shares of Common Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall promptly notify the Trustee of any Default by the Company in making any such
payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money and shares of Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying
Agent, it shall segregate the money and shares of Common Stock held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money
and shares of Common Stock held by it to the Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or
shares of Common Stock.



     Section 2.05. Securityholder Lists. The Trustee shall preserve the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on June 1
and December 1 a listing of Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as



14









 





the Trustee may request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders.



     Section 2.06. Transfer and Exchange. (a) Subject to Section 2.12 hereof, upon surrender for
registration of transfer of any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations, of a like aggregate principal amount.
The Company shall not charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.



     At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount upon surrender of
the Securities to be exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney duly authorized in
writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.



     The Company shall not be required to make, and the Registrar need not register, transfers or
exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed
in part, the portion thereof not to be redeemed) or any Securities in respect of which a Repurchase
Notice or Fundamental Change Repurchase Notice has been given and not withdrawn by the Holder
thereof in accordance with the terms of this Indenture (except, in the case of Securities to be
purchased in part, the portion thereof not to be purchased) or any Securities for a period of 15
days before the mailing of a notice of redemption of Securities to be redeemed.



     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers
of a Global Security shall be limited to transfers of such Global Security in whole or in part, to
the Depositary, to nominees of the Depositary or to a successor of the Depositary or such
successor’s nominee.



     (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on the register for
the Securities.



15









 





     (d) Except as otherwise set forth in this Indenture, any such action taken by a Holder shall
be conclusive and binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Security or any Security issued in exchange or
substitution therefor.



     (e) Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.



     (f) No Registrar shall be required to make registrations of transfer or exchange of Securities
during any periods designated in the text of the Securities or in this Indenture as periods during
which such registration of transfers and exchanges need not be made.



     (g) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Security attached
hereto as Exhibits A and B setting forth such restrictions (collectively, the “Legend”), or if a
request is made to remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is delivered to the Company
and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be
reasonably required by the Company and the Registrar and the Trustee (if not the same Person as the
Registrar), that neither the Legend nor the restrictions on transfer set forth therein are required
to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the
Securities Act or that such Securities are not “restricted” within the meaning of Rule 144 under
the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the
Company to the Trustee and Registrar of the sale of such Security pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the written direction of the
Company, shall authenticate and deliver a Security that does not bear the Legend. If the Legend is
removed from the face of a Security and the Security is subsequently held by the Company or an
Affiliate of the Company, the Legend shall be reinstated.



     Section 2.07. Replacement Securities. If (a) any mutilated Security is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount, bearing a certificate number
not contemporaneously outstanding.



16









 





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



     Upon the issuance of any new Securities under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.



     The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.



     Section 2.08. Outstanding Securities; Determinations of Holders’ Action. Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those
cancelled by it, those redeemed or purchased pursuant to Section 2.07, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding. A Security does not
cease to be outstanding because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction, notice, consent, waiver,
or other Act hereunder, Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other act, only
Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without limitation,
determinations pursuant to Article 6 and Article 9).



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



     If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, or on the
Business Day immediately following a Repurchase Date or a Fundamental Change Repurchase Date, or on
Stated Maturity, money or



17









 





securities, if permitted hereunder, sufficient to pay Securities payable on that date, then
from and after such Redemption Date, Repurchase Date, Fundamental Change Repurchase Date or Stated
Maturity, as the case may be, such Securities shall cease to be outstanding and Interest,
Contingent Interest and Additional Amounts, if any, on such Securities shall cease to accrue;
provided, that if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made.



     If a Security is converted in accordance with Article 10, then from and after the time of
conversion on the date of conversion, such Security shall cease to be outstanding and Interest,
Contingent Interest, Additional Amounts, if any, and the rights of the Holders therein shall
terminate (other than the right to receive the Conversion Settlement Distribution).



     Section 2.09. Temporary Securities. Pending the preparation of Certificated Securities, the
Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the Certificated Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the Officers executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.



     If temporary Securities are issued, the Company shall cause Certificated Securities to be
prepared without unreasonable delay. After the preparation of Certificated Securities, the
temporary Securities shall be exchangeable for Certificated Securities upon surrender of the
temporary Securities at the office or agency of the Company designated for such purpose pursuant to
Section 2.03, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Certificated Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as Certificated Securities.



     Section 2.10. Cancellation. All Securities surrendered for payment, purchase by the Company
pursuant to Article 3, conversion, redemption or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee.
The Company may not issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation other than in connection with registrations of transfer or exchange or
that any Holder has converted pursuant to Article 10. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as



18









 





expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with the Trustee’s customary procedure.



     Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal amount of the Security or any portion thereof, or the
payment of any Redemption Price, Repurchase Price or Fundamental Change Repurchase Price in respect
thereof, and Interest, Contingent Interest or Additional Amounts thereon, for the purpose of
conversion and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.



     Section 2.12. Global Securities. (a) Notwithstanding any other provisions of this Indenture
or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in
accordance with Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a beneficial interest
in a Global Security for a Certificated Security shall comply with Section 2.06 and Section
2.12(a)(ii) below and Section 2.12(e) below, and (C) transfers of a Certificated Security shall
comply with Section 2.06, Section 2.12(a)(iii) and Section 2.12(a)(iv) below.




     (i) Transfer of Global Security. A Global Security may not be transferred, in whole
or in part, to any Person other than the Depositary or a nominee or any successor thereof,
and no such transfer to any such other Person may be registered; provided that this Section
2.12(a)(i) shall not prohibit any transfer of a Security that is issued in exchange for a
Global Security but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture or the Securities unless and until such
Security has been registered in the name of such Person. Nothing in this Section
2.12(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions of this Section 2.12.




     (ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security. A beneficial interest in a Global Security may not be exchanged for
a Certificated Security except upon satisfaction of the requirements set forth in this
paragraph below and in Section 2.12(e) below. Upon receipt by the Trustee of a request to
transfer a beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory to the Trustee, together
with:




     (A) so long as the Securities are Restricted Securities, certification in
the form set forth in Exhibit C;



19









 






     (B) written instructions to the Trustee to make, or direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security
to reflect a decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain information
regarding the Depositary account to be decreased; and




     (C) if the Company or the Trustee so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend,



then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Registrar, the aggregate
principal amount of the Securities represented by the Global Security to be decreased by the
aggregate principal amount of the Certificated Security to be issued, shall issue such Certificated
Security and shall debit or cause to be debited to the account of the person specified in such
instructions a beneficial interest in the Global Security equal to the principal amount of the
Certificated Security so issued.




     (iii) Transfer and Exchange of Certificated Securities. When Certificated Securities
are presented to the Registrar with a request:




     (y) to register the transfer of such Certificated Securities; or



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



the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Certificated Securities
surrendered for transfer or exchange:




     (1) shall be duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing; and




     (2) so long as such Securities are Restricted Securities, such Securities are
being transferred or exchanged pursuant to an effective registration statement
under the Securities Act or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and documents, as applicable:




     (A) if such Certificated Securities are being delivered to the Registrar
by a Holder for registration in the name of such



20









 






Holder, without transfer, a certification from such Holder to that
effect; or




     (B) if such Certificated Securities are being transferred to the
Company, a certification to that effect; or




     (C) if such Certificated Securities are being transferred pursuant to an
exemption from registration, (i) a certification to that effect (in the form
set forth in Exhibit C, if applicable) and (ii) if the Company or the Trustee
so requests, an opinion of counsel or other evidence reasonably satisfactory
to it as to the compliance with the restrictions set forth in the Legend.




     (iv) Restrictions on Transfer or Exchange of a Certificated Security for a Beneficial
Interest in a Global Security. A Certificated Security may not be transferred or exchanged
for a beneficial interest in a Global Security except upon satisfaction of the requirements
set forth below.



     Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee, together with:




(I) so long as the Securities are Restricted Securities, certification, in the form set
forth in Exhibit C, that such Certificated Security (A) is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or (B) is being transferred pursuant to
and in compliance with Rule 144 under the Securities Act; and




(II) written instructions directing the Trustee to make, or to direct the Registrar to
make, an adjustment on its books and records with respect to such Global Security to
reflect an increase in the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the Depositary account
to be credited with such increase, then the Trustee shall cancel such Certificated Security
and cause, or direct the Registrar to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Registrar, the aggregate principal
amount of Securities represented by the Global Security to be increased by the aggregate
principal amount of the Certificated Security to be exchanged, and shall credit or cause to
be credited to the account of the person specified in such instructions a beneficial
interest in the Global Security equal to the principal amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the Company shall issue and
the Trustee shall authenticate, upon written order of the Company in the form of an
Officer’s Certificate, a new Global Security in the appropriate principal amount.



21









 





     (b) Subject to the succeeding Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if
so provided. Whenever any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set forth in Exhibit C,
dated the date of such surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to accept for such registration
of transfer or exchange any Security not so accompanied by a properly completed certificate.



     (c) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.12 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 under the Securities Act or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise reasonably acceptable to
the Company and the Trustee, addressed to the Company and the Trustee and in form acceptable to the
Company and the Trustee, to the effect that the transfer of such Security has been made in
compliance with Rule 144 under the Securities Act or such successor provision), be exchanged for a
new Security, of like tenor and aggregate principal amount, which shall not bear the restrictive
Legend. The Company shall inform the Trustee of the effective date of any registration statement
registering the Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the aforementioned
opinion of counsel or registration statement.



     (d) As used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, loan, hypothecation, or other disposition of any Security.



     (e) The provisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only to Global
Securities:




     (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name
of any Person other than the Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in the names of any Person
designated by the Depositary in the event that (i) the Depositary has notified the



22









 






Company that it is unwilling or unable to continue as Depositary for such Global
Security or such Depositary has ceased to be a “clearing agency” registered under Exchange
Act, and a successor Depositary is not appointed by the Company within 90 days (ii) the
Company determines at any time that the Securities shall no longer be represented by Global
Securities and shall inform such Depositary of such determination in writing and
participants in such Depository elect to withdraw their beneficial interests in the Global
Securities from such Depository, following notification by the Depositary of their right to
do so or (iii) an Event of Default has occurred and is continuing. Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and
any Global Security exchanged pursuant to clauses (ii) or (iii) above may be exchanged in
whole or from time to time in part as directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof shall be a Global Security; provided
that any such Security so issued that is registered in the name of a person other than the
Depositary or a nominee thereof or any successor of either of the foregoing pursuant to
this paragraph shall not be a Global Security.




     (ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully registered form, shall have an aggregate principal amount
equal to that of such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to the Registrar. With
regard to any Global Security to be exchanged in part, either such Global Security shall be
so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or
its nominee with respect to such Global Security, the principal amount thereof shall be
reduced by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative thereof.




     (iii) Subject to the provisions of clause (v) below, the registered Holder may grant
proxies and otherwise authorize any person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.




     (iv) In the event of the occurrence of any of the events specified in clause (i)
above, the Company shall promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form.



23









 






     (v) Neither any members of, or participants in, the Depositary (collectively, the
“Agent Members”) nor any other persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global Security, and the
Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and Holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may act, the operation
of customary practices of such Persons governing the exercise of the rights of a Holder of
any Security.




     (vi) Except as expressly set forth in this Indenture, including Sections 2.12(a)(ii)
and 2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the Company or the
Registrar shall have any responsibility or obligation to any beneficial owner in the Global
Securities, a member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Global Securities or with
respect to the delivery to any participant, member, beneficial owner or other Person (other
than the Depository) of any notice (including any notice of redemption) or the payment of
any amount, under or with respect to such Global Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders under the
Securities shall be given or made only to or upon the order of the registered Holders
(which shall be, in the case of a Global Security, the Depository or its nominee). The
rights of beneficial owners in the Global Securities shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository. Other than as
set forth in this Indenture, the Trustee, any Paying Agent, the Conversion Agent, the
Company and the Registrar may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any beneficial
owners. Except as expressly set forth in this Indenture, including Sections 2.12(a)(ii)
and 2.12(e), the Trustee, each Paying Agent, the Conversion Agent, the Company and the
Registrar shall be entitled to deal with any depositary (including the Depository), and any
nominee thereof, that is the Holder of any Global Securities as a Holder for all purposes
of this Indenture relating to such Global Securities (including the payment of principal,
Interest, Contingent Interest, if any, and Additional Amounts, if any, and the giving of
instructions or directions by or to the owner or Holder of a beneficial ownership interest
in such Global



24









 






Securities) as the sole Holder of such Global Securities and shall have no obligations
to the beneficial owners thereof. None of the Trustee, any Paying Agent, the Conversion
Agent, the Company or the Registrar shall have any responsibility or liability for any acts
or omissions of any such depositary with respect to such Global Securities, for the records
of any such depositary, including records in respect of beneficial ownership interests in
respect of any such Global Securities, for any transactions between such depositary and any
participant in such depositary or between or among any such depositary, any such
participant and/or any holder or owner of a beneficial interest in such Global Securities
or for any transfers of beneficial interests in any such Global Securities.



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



     The Trustee shall have no responsibility for the actions or omissions of the Depositary, or
the accuracy of the books and records of the Depositary.



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



     Section 2.14. Contingent Debt Tax Treatment. (a) The Company and each Holder, by acquiring
a beneficial interest in a Security, agree (i) to treat the Security as indebtedness for U.S.
federal income tax purposes that is subject to the Treasury regulations governing contingent
payment debt instruments (the “contingent debt regulations”), (ii) that each Holder shall be bound
by the Company’s application of the contingent debt regulations to the Security, including the
Company’s determination of the “comparable yield” and “projected payment schedule” within the
meaning of the contingent debt regulations, and (iii) that the Company and each Holder will not
take any position on any U.S. federal income tax return that is inconsistent with (i) or (ii),
unless required by applicable law. A Holder may obtain the issue price, the amount of Tax Original
Issue Discount, issue



25









 





date, yield to maturity, comparable yield and projected payment schedule for the Security, as
determined by the Company pursuant to the contingent debt regulations, by submitting a written
request to the Company at the following address: Cal Dive International, Inc., 400 N. Sam Houston
Parkway East, Suite 400, Houston, Texas 77060, Attention: General Counsel.



     (b) Each Security shall bear a legend relating to U.S. federal income tax matters in the form
set forth in Exhibits A and B.



     Section 2.15. 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
Securities 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 Code or the Treasury regulations
promulgated thereunder.



ARTICLE 3

Redemption and Repurchases




     Section 3.01. Company’s Right to Redeem; Notices to Trustee. Prior to December 20, 2012,
the Securities shall not be redeemable at the Company’s option. On or after December 20, 2012, the
Company, at its option, may redeem the Securities for U.S. legal tender (“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 Securities redeemed, plus any accrued and unpaid Interest, accrued and unpaid
Contingent Interest, if any, and accrued and unpaid Additional Amounts, if any, on the Securities
redeemed up to, but not including, the Redemption Date, provided, 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 Securities redeemed but
shall not include accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any, and
Additional Amounts, if any. Instead, the Company shall pay such Interest, Contingent Interest, if
any, and Additional Amounts, if any, on the Interest Payment Date to the Holder of record on the
corresponding Interest Record Date. If the Company elects to redeem Securities 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 Securities to be redeemed and the Redemption
Price. Notwithstanding the foregoing, the Company may not redeem the Securities if it has failed
to pay any Interest, including Contingent Interest, if any, and Additional Amounts, if any, on the
Securities when due and such failure is continuing.



     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



26









 





before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).



     Section 3.02. Selection of Securities to Be Redeemed. If less than all of the Securities
are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall
select the Securities 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 Securities are then traded or quoted). The Trustee
may select for redemption portions of the principal amount of Securities that have denominations
larger than $1,000.



     Securities and portions of Securities 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 Securities
called for redemption also apply to portions of Securities 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 Securities or portions of the Securities selected to be redeemed and, in
the case of any Securities selected for partial redemption, the method it has chosen for the
selection of the Security.



     Following a notice of redemption, Securities and portions of Securities are convertible,
pursuant to Section 10.01(a)(2), by the Holder until the close of business on the Business Day
prior to the Redemption Date. If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the Security so selected,
the converted portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities that have been converted during a selection of Securities 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 mail a notice of redemption (substantially in the form of
Exhibit D) by first-class mail, postage prepaid, to each Holder of Securities to be redeemed.



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




	 	(1)  	the Redemption Date;
	 
	 	(2)  	the Redemption Price;
	 
	 	(3)  	the Conversion Rate;
	 
	 	(4)  	the name and address of the Paying Agent and Conversion Agent;




27









 








	 	(5)  	that Securities may be converted at any time before the close of
business on the Business Day prior to the Redemption Date;
	 
	 	(6)  	that Securities called for redemption and not converted shall be
redeemed on the Redemption Date;
	 
	 	(7)  	that Holders who want to convert their Securities must satisfy the
requirements set forth in the Securities;
	 
	 	(8)  	that Securities called for redemption must be surrendered to the Paying
Agent (by effecting book entry transfer of the Securities or delivering
Certificated Securities, together with necessary endorsements, as the case may be)
to collect the Redemption Price;
	 
	 	(9)  	if fewer than all of the outstanding Securities are to be redeemed, the
certificate numbers, if any, and principal amounts of the particular Securities to
be redeemed;
	 
	 	(10)  	that, unless the Company defaults in making payment of such Redemption
Price, Interest, Contingent Interest, if any, and Additional Amounts, if any, the
Securities called for redemption shall cease to accrue from and after the
Redemption Date; and
	 
	 	(11)  	the CUSIP, “ISIN” or other similar number(s), as the case may be, of
the Securities 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,
Securities called for redemption become due and payable on the Redemption Date and at the
Redemption Price stated in the notice except for Securities that are converted in accordance with
the terms of this Indenture. Upon surrender to the Paying Agent, such Securities 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 Securities shall cease to bear
Interest, Contingent Interest, if any, and Additional Amounts, if any, and the rights of the
Holders therein shall terminate (other than the right to receive the Redemption Price).



     Section 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. (New York City time), on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than
Securities



28









 





or portions of Securities 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 Securities pursuant to Article 10. If such money is then held by the Company or a
Subsidiary or an Affiliate of either in trust and is not required for such purpose it shall be
discharged from such trust.



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



     Section 3.07. Repurchase of Securities by the Company at Option of the Holder. (a) On each
of December 15, 2012, December 15, 2015 and December 15, 2020 (each, a “Repurchase Date”), each
Holder shall have the option to require the Company to repurchase Securities 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 Securities, plus accrued
and unpaid Interest, accrued and unpaid Contingent Interest, if any, and accrued and unpaid
Additional Amounts, if any, on those Securities, 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 Securities repurchased but shall not include accrued and
unpaid Interest, accrued and unpaid Contingent Interest, if any, and Additional Amounts, if any.
Instead, the Company shall pay such accrued and unpaid Interest, Contingent Interest, if any, and
Additional Amounts, if any, on the Interest Payment Date, to the Holder of Record on the
corresponding Interest Record Date. Not later than 20 Business Days prior to any Repurchase Date,
the Company shall mail a Company Notice (substantially in the form of Exhibit E) by first class
mail to the Trustee and to each Holder (and to beneficial owners if required by applicable law).
The Company Notice shall include a form of repurchase Notice to be completed by a Holder and shall
state:




     (i) the Repurchase Price and the Conversion Rate;




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




     (iii) that Securities as to which a Repurchase Notice has been given may be converted
if they are otherwise convertible only in accordance with Article 10 hereof and the terms
of the Securities if the applicable Repurchase Notice has been withdrawn in accordance with
the terms of this Indenture;



29









 






     (iv) that Securities must be surrendered to the Paying Agent (by effecting book entry
transfer of the Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to collect payment;




     (v) that the Repurchase Price for any security 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 Security as
described in clause (iv) above;




     (vi) the procedures the Holder must follow to exercise its right to require the
Company to repurchase such Holder’s Securities under this Section 3.07 and a brief
description of that right;




     (vii) briefly, the conversion rights, if any, that exist at the date of the Company
Notice or as a result of the Company Notice with respect to the Securities;




     (viii) the procedures for withdrawing a Repurchase Notice;




     (ix) that, unless the Company defaults in making payment on Securities for which a
Repurchase Notice has been submitted, Interest, Contingent Interest, if any, or Additional
Amounts, if any, on such Securities shall cease to accrue from and after the Repurchase
Date; and




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



     At the Company’s request, the Trustee shall give such 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 Company Notice shall be prepared by the Company.



     (b) A Holder may exercise its rights specified in Section 3.07(a) upon delivery to the Paying
Agent of a written notice of repurchase (a “Repurchase Notice”) during the period beginning at any
time from the opening of business on the date that is 20 Business Days prior to the relevant
Repurchase Date until the close of business on such Repurchase Date, stating:




     (i) if Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated Securities
have not been issued for such Security, the Repurchase Notice shall comply with the
appropriate Depository procedures for book-entry transfer,



30









 






     (ii) the portion of the principal amount of the Security which the Holder shall
deliver to be repurchased, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000, and




     (iii) that such Security shall be repurchased by the Company as of the Repurchase Date
pursuant to the terms and conditions specified in Section 6 of the Securities and in this
Indenture.



     The delivery of such Security (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 3.07 only if the Security (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 3.07, a portion
of a Security, if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.07
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 Security (together with all necessary endorsements or notifications of book-entry
transfer).



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.07 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 3.09 at any time prior to the close of business on the Repurchase Date.



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



     Section 3.08 . Repurchase of Securities at Option of the Holder Upon a Fundamental Change.
(a) If a Fundamental Change occurs, each Holder shall have the right, at such Holder’s option, to
require the Company to repurchase for cash all of such Holder’s Securities not previously called
for redemption by the Company, or any portion thereof that is equal to or an integral multiple of
$1,000 principal amount, at a repurchase price equal to 100% of the principal amount of those
Securities, plus accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Amounts, if any, on those Securities (the “Fundamental Change
Repurchase Price”) to, but not including,



31









 





the date that is 30 days following the date of the notice of a Fundamental Change mailed by
the Company pursuant to Section 3.08(b) (the “Fundamental Change Repurchase Date”), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.08(c);
provided, that if the Fundamental Change Repurchase Date is on a date that is after an Interest
Record Date and on or prior to the corresponding Interest Payment Date, the Fundamental Change
Repurchase Price shall be 100% of the principal amount of the Securities repurchased but shall not
include accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any, and Additional
Amounts, if any. Instead, the Company shall pay such Interest, Contingent Interest, if any, and
Additional Amounts, if any, on the Interest Payment Date to the Holder of Record on the
corresponding Interest Record Date.



     (b) No later than 15 days after the occurrence of a Fundamental Change, the Company shall mail
a Company Notice of the Fundamental Change (substantially in the form of Exhibit F) by first class
mail to the Trustee and to each Holder (and to beneficial owners if required by applicable law).
The Company Notice shall include a form of Fundamental Change Repurchase Notice to be completed by
the Holder and shall state:




     (i) briefly, the events causing a Fundamental Change and the date of such Fundamental
Change;




     (ii) the date by which the Fundamental Change Repurchase Notice pursuant to this
Section 3.08 must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;




     (iii) the Fundamental Change Repurchase Date;




     (iv) the Fundamental Change Repurchase Price;




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




     (vi) the Conversion Rate;




     (vii) that the Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to Article 10 hereof only
if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms
of this Indenture;




     (viii) that the Securities must be surrendered to the Paying Agent (by effecting book
entry transfer of the Securities or delivering Certificated Securities, together with
necessary endorsements, as the case may be) to collect payment;




     (ix) that the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been



32









 






duly given and not withdrawn shall be paid promptly following the later of the
Business Day immediately following the Fundamental Change Repurchase Date and the time of
surrender of such Security as described in clause (viii);




     (x) briefly, the procedures the Holder must follow to exercise rights under this
Section 3.08;




     (xi) briefly, the conversion rights, if any, that exist on the Securities at the date
of the Company Notice and as a result of such Fundamental Change;




     (xii) the procedures for withdrawing a Fundamental Change Repurchase Notice;




     (xiii) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price on Securities for which a Fundamental Change Repurchase Notice is
submitted, Interest, Contingent Interest and Additional Amounts, if any, on Securities
surrendered for purchase by the Company shall cease to accrue from and after the
Fundamental Change Repurchase Date; and




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



     At the Company’s request, the Trustee shall give such 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 Company Notice shall be prepared by the Company.



     (c) A Holder may exercise its rights specified in this Section 3.08 upon delivery of a written
notice of repurchase (a “Fundamental Change Repurchase Notice”) to the Paying Agent at any time on
or prior to the close of business on the Fundamental Change Repurchase Date, stating:




     (i) If Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated Securities
have not been issued, the Fundamental Change Repurchase Notice shall comply with the
appropriate Depository procedures for book-entry transfer;





     (ii) the portion of the principal amount of the Security which the Holder shall
deliver to be repurchased, which portion must be $1,000 or an integral multiple of $1,000;
and




     (iii) that such Security shall be repurchased pursuant to the terms and conditions
specified in Section 6 of the Securities and in this Indenture.



33









 





     The delivery of such Security (together with all necessary endorsements) to the Paying Agent
with the Fundamental Change Repurchase Notice at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor;
provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.08 only if the Security (together with all necessary endorsements) so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth in the related
Fundamental Change Repurchase Notice.



     The Company shall repurchase from the Holder thereof, pursuant to this Section 3.08, a portion
of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the
repurchase of such portion of such Security.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.08
shall be consummated by the delivery of the Fundamental Change Repurchase Price promptly following

the later of the Business Day following the Fundamental Change Repurchase Date or the time of
delivery of such Security (together with all necessary endorsements or notifications of book-entry
transfer).



     Notwithstanding the foregoing, Holders shall not have the right to require us to repurchase
the Securities upon a Change of Control described in clause (3) of the definition thereof if 90% or
more of the consideration in the transaction or transactions constituting such Change of Control
consists of shares of common stock traded or to be traded immediately following such Change of
Control on a U.S. national securities exchange or the Nasdaq National Market, and, as a result of
such transaction or transactions, the Securities become convertible into such common stock (and any
rights attached thereto).



     Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 3.08(c) shall have the right to
withdraw such Fundamental Change Repurchase Notice by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.09 at any time prior to the close of business on the
Fundamental Change Repurchase Date.



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



     Section 3.09 . Effect of Repurchase Notice or Fundamental Change Repurchase Notice. (a) Upon
receipt by the Paying Agent of the Repurchase Notice or Fundamental Change Repurchase Notice
specified in Section 3.07 or Section 3.08, as applicable, the Holder of the Security in respect of
which such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, was given
shall (unless such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be,
is withdrawn as specified in Section



34









 





3.09(b)) thereafter be entitled solely to receive the Repurchase Price or Fundamental Change
Repurchase Price, as the case may be, with respect to such Security whether or not the Security is,
in fact, properly delivered. Such Repurchase Price or Fundamental Change Repurchase Price shall be
paid to such Holder, subject to receipt of funds and/or securities by the Paying Agent, promptly
following the later of (x) the Business Day following the Repurchase Date or the Fundamental Change
Repurchase Date, as the case may be, with respect to such Security (provided the conditions in
Section 3.07 or Section 3.08, as applicable, have been satisfied) and (y) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.07 or
Section 3.08, as applicable. Securities in respect of which a Repurchase Notice or Fundamental
Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to and
to the extent permitted by Article 10 hereof on or after the date of the delivery of such
Repurchase Notice or Fundamental Change Repurchase Notice unless such Repurchase Notice or
Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section
3.09(b).



     (b) A Repurchase Notice or Fundamental Change Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in accordance with the
Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, at any time (i) in
the case of the Repurchase Notice, if received by the Paying Agent prior to the close of business
on the Repurchase Date or (ii) in the case of the Fundamental Change Repurchase Notice, if received
by the Paying Agent prior to the close of business on the Fundamental Change Repurchase Date, as
the case may be, specifying:




	 	(1)  	the principal amount, if any, of such Security which remains subject to
the original Repurchase Notice or Fundamental Change Repurchase Notice, as the case
may be, and which has been or shall be delivered for purchase by the Company,
	 
	 	(2)  	if Certificated Securities have been issued, the certificate number, if
any, of the Security in respect of which such notice of withdrawal is being
submitted (or, if Certificated Securities have not been issued, that such withdrawal
notice shall comply with the appropriate Depositary procedures), and
	 
	 	(3)  	the principal amount of the Security with respect to which such notice of
withdrawal is being submitted.





     Section 3.10. Deposit of Repurchase Price or Fundamental Change Repurchase Price. Prior to
10:00 a.m. (local time in The City of New York) on the Business Day following the Repurchase Date
or the Fundamental Change Repurchase Date, as the case may be, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of cash in
immediately available funds sufficient to pay the aggregate



35









 





Repurchase Price or Fundamental Change Repurchase Price, as the case may be, of all the
Securities or portions thereof which are to be purchased as of the Repurchase Date or Fundamental
Change Repurchase Date, as the case may be.



     Section 3.11. Securities Purchased in Part. Any Certificated Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not purchased.



     Section 3.12. Covenant to Comply with Securities Laws upon Purchase of Securities. When
complying with the provisions of Section 3.07 or Section 3.08 hereof (provided that such offer or
purchase constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange Act at the time of such offer
or purchase), and subject to any exemptions available under applicable law, the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) and any other applicable tender
offer rules under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under Sections Section 3.07 and Section
3.08 to be exercised in the time and in the manner specified in Sections Section 3.07 and Section
3.08.



     Section 3.13. Repayment to the Company. The Trustee and the Paying Agent shall return to
the Company any cash that remains unclaimed as provided in Section 12 of the Securities, together
with interest, if any, thereon (subject to the provisions of Section 7.01(f)), held by them for the
payment of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be.



ARTICLE 4

Covenants




     Section 4.01. Payment of Securities. The Company shall make all payments in respect of the
Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture.
Any amounts of cash in immediately available funds or shares of Common Stock to be given to the
Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 10:00 a.m., New York
City time, by the Company. The principal amount of, and Interest, Contingent Interest, if any, and
Additional Amounts, if any, on the Securities, and the Redemption Price, Repurchase Price and the
Fundamental Change Repurchase



36









 





Price shall be considered paid on the applicable date due if on such date (which, in the case
of a Repurchase Price or a Fundamental Change Repurchase Price, shall be on the Business Day
immediately following the applicable Repurchase Date or Fundamental Change Repurchase Date, as the
case may be) the Trustee or the Paying Agent holds, in accordance with this Indenture, cash or
securities, if permitted hereunder, sufficient to pay all such amounts then due.



     Section 4.02. SEC and Other Reports. The Company shall deliver to the Trustee, within 15
days after it files such annual and quarterly reports, information, documents and other reports
with the SEC, copies of its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall also comply with the other provisions of TIA Section 314(a). Delivery of
such reports, information and documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on
Officer’s Certificates).



     Section 4.03. Compliance Certificate. The Company shall deliver to the Trustee within 120
days after the end of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2005) an Officer’s Certificate, stating whether or not to the knowledge of the signer
thereof, the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which such Officer may have knowledge and otherwise comply
with Section 314(a)(4) of the TIA.



     The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
within 30 days of any executive officer of the Company becoming aware of any Default or Event of
Default in respect of the performance or observance of any covenant or agreement contained in this
Indenture or the Securities, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.



     Section 4.04. Further Instruments and Acts. The Company shall execute and deliver such
further instruments and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.



     Section 4.05. Maintenance of Office or Agency. The Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency of the Trustee, Registrar, Paying Agent and
Conversion Agent where Securities may be presented or surrendered for payment, where Securities may
be surrendered for registration of transfer, exchange, purchase, redemption or conversion and



37









 





where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee, as listed in Section 12.02,
shall initially be such office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the location, of any
such office or agency (other than a change in the location of the office of the Trustee). If at
any time the Company shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.02.



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



     Section 4.06. Delivery of Certain Information. At any time when the Company is not subject
to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of
Securities or Holder or beneficial owner of shares of Common Stock issued upon conversion thereof,
the Company shall promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial owner of Securities or Holder or beneficial owner of shares
of Common Stock, or to a prospective purchaser of any such security designated by any such Holder,
as the case may be, to the extent required to permit compliance by such Holder or beneficial owner
with Rule 144A under the Securities Act in connection with the resale of any such security. “Rule
144A Information” shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act. Whether a person is a beneficial owner shall be determined by the Company to the
Company’s reasonable satisfaction.



     Section 4.07. Additional Amounts Notice. In the event that the Company is required to pay
Additional Amounts to Holders of Securities pursuant to the Registration Rights Agreement, the
Company shall provide written notice (“Additional Amounts Notice”) to the Trustee of its obligation
to pay Additional Amounts prior to the required payment date for the Additional Amounts, and the
Additional Amounts Notice shall set forth the amount of Additional Amounts to be paid by the
Company on such payment date. The Trustee shall not at any time be under any duty to any Holder of
Securities to determine the Additional Amounts, or with respect to the nature, extent or
calculation of the amount of Additional Amounts when made, or with respect to the method employed
in such calculation of the Additional Amounts.





38









 






ARTICLE 5

Successor Person




     Section 5.01. When Company May Merge or Transfer Assets. The Company shall not consolidate
with or merge with or into any other Person or convey, transfer, sell, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person, unless:




     (a) the resulting, surviving or transferee person (the “successor Person”) and, if any
resulting Conversion Obligation relates to Public Acquirer Common Stock that is not issued
by such successor Person, such public acquirer, will 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 Person (if not the Company) and the public acquirer, as
applicable, will expressly assume, by indenture supplemental hereto, executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all of obligations of the
Company or such successor Person and fully and unconditionally guarantee all of the
obligations of the Company or such successor Person under the Securities and this
Indenture;




     (b) immediately after giving effect to such transaction (and treating any indebtedness
which becomes an obligation of the successor Person as a result of such transaction as
having been incurred by such successor Person as the time of such transaction), no Default
shall have occurred and be continuing;




     (c) the Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer,
sale or lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5 and that all
conditions precedent herein provided relating to such transaction have been satisfied; and




     (d) The Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that Holders will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such transaction and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been the case if
the transaction had not occurred.



     For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the
properties and assets of one or more Subsidiaries (other than to the Company or another
Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially
all of the properties and assets of the Company, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.



39









 





     The successor Person formed by such consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company herein; and thereafter, except
in the case of a lease and obligations the Company may have under a supplemental indenture, the
Company shall be discharged from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Company, the Trustee and the successor Person shall enter
into a supplemental indenture to evidence the succession and substitution of such successor Person
and such discharge and release of the Company.



ARTICLE 6

Defaults and Remedies




     Section 6.01. Events of Default. So long as any Securities are outstanding, each of the
following shall be an “Event of Default”:



     (a) following the exercise by the Holder of the right to convert a Security in accordance with
Article 10 hereof, the Company fails to comply with its obligations to deliver the cash or shares
of Common Stock, if any, required to be delivered as part of the applicable Conversion Settlement
Distribution on the applicable Conversion Settlement Date and such failure continues for a period
of 5 days or more;



     (b) the Company defaults in its obligation to provide timely notice of a Fundamental Change to
the Trustee and each Holder as required under Section 3.08(b);



     (c) the Company defaults in its obligation to redeem any Security, or any portion thereof,
called for redemption by the Company pursuant to and in accordance with Section 3.01 hereof;



     (d) the Company defaults in the payment of the principal amount of any Security when due at
maturity, redemption, upon repurchase or otherwise (including, without limitation, upon the
exercise by a Holder of its right to require the Company to repurchase such Securities pursuant to
and in accordance with Section 3.07 or Section 3.08 hereof);



     (e) the Company defaults in the payment of any Interest, Contingent Interest or Additional
Amounts when due and payable, and continuance of such default for a period of 30 days;



     (f) the Company fails to perform or observe any term, covenant or warranty or agreement in the
Securities or this Indenture (other than those referred



40









 




to in clause (a) through clause (f) above) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;




     (g) a failure to pay when due at maturity or a default, event of default or other similar
condition or event (however described) that results in the acceleration of maturity of indebtedness
for borrowed money of the Company or any Subsidiary (other than indebtedness that is non-recourse
to the Company or any Subsidiary) in an aggregate principal amount of $15 million or more, unless
the acceleration is rescinded, stayed or annulled within 30 days after receipt by the Company of a
Notice of Default;



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



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



     The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether it is voluntary or involuntary or is 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.



     For the avoidance of doubt, clauses (f) and (g) above shall not constitute an Event of Default
until the Trustee notifies the Company, or the Holders of at least



41









 




25% in aggregate principal amount of the Securities at the time outstanding notify the Company
and the Trustee, of such default and the Company does not cure such default (and such default is
not waived) within the time specified in clauses (f) and (g) above after actual receipt of such
notice. Any such notice must specify the default, demand that it be remedied and state that such
notice is a “Notice of Default.”




     Section 6.02. Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.01(h) or Section 6.01(i)) occurs and is continuing (the Event of Default not
having been cured or waived), the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding by notice to the Company
and the Trustee, may declare the principal amount of the Securities and any accrued and unpaid
Interest, any accrued and unpaid Contingent Interest, if any, and accrued and unpaid Additional
Amounts, if any, on all the Securities to be immediately due and payable. Upon such a declaration,
such accelerated amount shall be due and payable immediately. If an Event of Default specified in
Section 6.01(h) or Section 6.01(i) occurs and is continuing, the principal amount of the Securities
and any accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Amounts, if any, on all the Securities shall become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate principal amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration and its consequences, and thereby waive the Events of Default giving rise
to such acceleration, if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the principal amount of
the Securities and any accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if
any, and accrued and unpaid Additional Amounts, if any, that have become due solely as a result of
acceleration. No such rescission shall affect any subsequent Event of Default or impair any right
consequent thereto.



     Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount of the Securities
and any accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Amounts, if any, on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.



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



42









 





     Section 6.04. Waiver of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder), may waive any existing or past Default and its consequences except (1)
an Event of Default described in clauses (a), (c), (d), and (e) of Section 6.01 or (2) an Event of
Default in respect of a provision that under Section 9.02 cannot be amended without the consent of
each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right. This Section 6.04
shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.



     Section 6.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the Securities at the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided, that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent with such direction or
this Agreement. Prior to taking any action under this Indenture, the Trustee may require indemnity
satisfactory to it in its sole discretion against all losses and expenses caused by taking or not
taking such action. This Section 6.05 shall be in lieu of Section 316(a)1(A) of the TIA and such
Section 316(a)1(A) is hereby expressly excluded from this Indenture, as permitted by the TIA.



     Section 6.06. Limitation on Suits. A Securityholder may not pursue any remedy with respect
to this Indenture or the Securities, except in case of a Default due to the non-payment of the
principal amount of the Securities, any accrued and unpaid Interest, any accrued and unpaid
Contingent Interest, if any, or any accrued and unpaid Additional Amounts, if any, unless:




	 	(1)  	the Holder gives to the Trustee written notice stating that a Default is
continuing;
	 
	 	(2)  	the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to pursue
the remedy;
	 
	 	(3)  	such Holder or Holders offer reasonable security or indemnity to the
Trustee against any costs, liability or expense;
	 
	 	(4)  	the Trustee does not comply with the request within 60 days after receipt
of such notice and offer of security or indemnity; and




43









 






	 	(5)  	the Holders of a majority in aggregate principal amount of the Securities
at the time outstanding do not give the Trustee a direction inconsistent with the
request during such 60-day period.





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



     Section 6.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of the principal amount of the
Securities and any accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any,
and accrued and unpaid Additional Amounts, if any, in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities or any Redemption Date,
Repurchase Date or Fundamental Change Repurchase Date, and to convert the Securities in accordance
with Article 10, or to bring suit for the enforcement of any such payment or the right to convert
on or after such respective dates, shall not be impaired or affected adversely without the consent
of such Holder.



     Section 6.08. Collection Suit by Trustee. If an Event of Default described in Section 6.01
clauses (a) through (e) (other than (b)) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the whole amount owing
with respect to the Securities and the amounts provided for in Section 7.07.



     Section 6.09. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount of the Securities and any accrued and unpaid
Interest, accrued and unpaid Contingent Interest, if any, and accrued and unpaid Additional
Amounts, if any, in respect of the Securities 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 on
the Company for the payment of any such amount) shall be entitled and empowered, by intervention in
such proceeding or otherwise:




     (a) to file and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Additional Amounts, if any, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel or any other amounts due the Trustee under Section 7.07) and of the
Holders allowed in such judicial proceeding, and



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



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



     The Company agrees not to object to the Trustee participating as a member of any official
committee of creditors of the Company as it deems necessary or advisable.



     Section 6.10. Priorities. Any money collected by the Trustee pursuant to this Article 6,
and, after an Event of Default, any money or other property distributable in respect of the
Company’s obligations under this Indenture, shall be paid out in the following order:




     FIRST: to the Trustee (including any predecessor Trustee) for amounts due under
Section 7.07;




     SECOND: to Securityholders for amounts due and unpaid on the Securities for the
principal amount of the Securities and any accrued and unpaid Interest, any accrued and
unpaid Contingent Interest, if any, and accrued and unpaid Additional Amounts, if any, as
the case may be, ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and




     THIRD: the balance, if any, to the Company.



     The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each
Securityholder and the Company a notice that states the record date, the payment date and the
amount to be paid.



     Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs,



45









 




including reasonable attorneys’ fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the Securities
at the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such
Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA.




     Section 6.12. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount of the Securities and any
accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Additional Amounts, if any, on Securities, as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law had been enacted.



ARTICLE 7

Trustee




     Section 7.01. Duties of Trustee.




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



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




	 	(1)  	the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied duties
shall be read into this Indenture against the Trustee; and
	 
	 	(2)  	in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture, but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee




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	 	   	shall be under a duty to examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but need
not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein. This Section 7.01(b) shall be in lieu of Section
315(a) of the TIA and such Section 315(a) is hereby expressly excluded from
this Indenture, as permitted by the TIA.





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




	 	(1)  	this Section 7.01 (c) does not limit the effect of Sections
7.01(b) and 7.01(g);
	 
	 	(2)  	the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
	 
	 	(3)  	the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.





     Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly
excluded from this Indenture, as permitted by the TIA.



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



     (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.



     (f) Money held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be
under no liability for interest on any money received by it hereunder unless otherwise agreed in
writing with the Company (provided that any interest earned on money held by the Trustee in trust
hereunder shall be the property of the Company).



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



     Section 7.02. Rights of Trustee. Subject to the provisions of Section 7.01:



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     (a) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in original or facsimile form) believed by
it to be genuine and to have been signed or presented by the proper party or parties;




     (b) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an Officer’s
Certificate;




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




     (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it believes to be authorized or within its rights or powers
conferred under this Indenture;




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




     (f) 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 Holders,
pursuant to the provisions of this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby;




     (g) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;




     (h) 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, note, other evidence of indebtedness
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



48









 






shall determine to make such further inquiry or investigation, it shall be entitled
to, during regular business hours, examine the books, records and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation;




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




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




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




     (l) the permissive rights of the Trustee to take certain actions under this Indenture
shall not be construed as a duty unless so specified herein.



     Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Section 7.10 and Section 7.11.



     Section 7.04. Trustee’s Disclaimer. The Trustee makes no representation as to, and shall
have no responsibility for, the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company’s use or application by the Company of the Securities or of the
proceeds from the Securities, it shall not be responsible for the correctness of any statement in
the registration statement for the Securities under the Securities Act or in any offering document
for the Securities, the Indenture or the Securities (other than its certificate of authentication),
or the determination as to which beneficial owners are entitled to receive any notices hereunder.



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     Section 7.05. Notice of Defaults. If a Default or Event of Default occurs and if it is
known to the Trustee, the Trustee shall give to each Securityholder notice of the Default or Event
of Default within 90 days after it occurs or, if later , within 15 days after it is known to the
Trustee, unless such Default or Event of Default shall have been cured or waived before the giving
of such notice. Notwithstanding the preceding sentence, except in the case of a Default or Event
of Default described in clauses (d) and (e) of Section 6.01, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interest of the Securityholders. The preceding sentence shall be in lieu of
the proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this
Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of a Default
or Event of Default unless a Responsible Officer of the Trustee has received written notice of such
Default or Event of Default, which notice specifically references this Indenture and the
Securities.



     Section 7.06. Reports by Trustee to Holders. Within 75 days after each December 31
beginning with December 31, 2005, the Trustee shall mail to each Securityholder a brief report
dated as of such December 31 that complies with TIA Section 313(a), if required by such Section
313(a). The Trustee also shall comply with TIA Section 313(b). Any reports required by this
Section 8.06 shall be transmitted by mail to Securityholders pursuant to TIA Section 313(c).



     A copy of each report at the time of its mailing to Securityholders shall be filed with the
SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to
notify the Trustee promptly whenever the Securities become listed on any securities exchange and of
any delisting thereof.



     Section 7.07 . Compensation and Indemnity. The Company agrees:




     (a) to pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited (to the extent permitted by law) by any provision
of law in regard to the compensation of a trustee of an express trust);




     (b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except any such expense, disbursement or advance
as may be attributable to its own negligence, willful misconduct or bad faith; and




     (c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to
hold them harmless against, any loss, damage, claim, liability, cost or expense (including
reasonable attorney’s fees and expenses, and taxes (other than taxes based upon, measured
by or determined by the



50









 




income of the Trustee)) incurred without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.




     To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that
held in trust to pay the principal amount of, or the Redemption Price, Repurchase Price,
Fundamental Change Repurchase Price, Interest, Contingent Interest or Additional Amounts, if any,
as the case may be, on particular Securities.



     The Company’s payment, reimbursement and indemnity obligations pursuant to this Section 7.07
shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee and the termination of this Indenture for any reason. In addition to and without prejudice
to its rights hereunder, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 6.01(h) or Section 6.01(i), the expenses, including the
reasonable charges and expenses of its counsel and the compensation for services payable pursuant
to Section 7.07(a), are intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or similar laws.



     For the purposes of this Section 7.07, the “Trustee” shall include any predecessor Trustee;
provided, however, that except as may be otherwise agreed among the parties, the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.



     Section 7.08. Replacement of Trustee. The Trustee may resign at any time by so notifying
the Company; provided, however, no such resignation shall be effective until a successor Trustee
has accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company shall remove the Trustee if:




	 	(1)  	the Trustee fails to comply with Section 7.10;
	 
	 	(2)  	the Trustee is adjudged bankrupt or insolvent;
	 
	 	(3)  	a receiver or public officer takes charge of the Trustee or its property;
or
	 
	 	(4)  	the Trustee otherwise becomes incapable of acting.




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



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



     If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor Trustee.



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



     So long as no Default or Event of Default shall have occurred and be continuing, if the
Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor Trustee,
effective as of a date at least 30 days after delivery of such Resolution to the Trustee, and (ii)
an instrument of acceptance of such appointment, effective as of such date, by such successor
Trustee in accordance with this Indenture, the Trustee shall be deemed to have resigned as
contemplated in this Section 7.08, the successor Trustee shall be deemed to have been accepted as
contemplated in this Indenture, all as of such date, and all other provisions of this Indenture
shall be applicable to such resignation, appointment and acceptance.



     Section 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust business or assets to,
another Person, the resulting, surviving or transferee Person without any further act shall be the
successor Trustee, subject to Sections 7.10 and 7.11.



     Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or any parent holding company)
shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate paragraph of TIA Section
310(b).



52









 





     Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply
with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.



ARTICLE 8

Discharge of Indenture




     Section 8.01. Discharge of Liability on Securities. When (i) the Company causes to be
delivered to the Trustee all outstanding Securities (other than Securities replaced or repaid
pursuant to Section 2.07) for cancellation or (ii) all outstanding Securities have become due and
payable and the Company deposits with the Trustee cash sufficient to pay all amounts due and owing
on all outstanding Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company, then this Indenture
shall, subject to Section 7.07, cease to be of further effect. The Trustee shall join in the
execution of a document prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officer’s Certificate and Opinion of Counsel
and at the cost and expense of the Company.



     Section 8.02. Repayment to the Company. The Trustee and the Paying Agent shall return to
the Company upon written request any money or securities held by them for the payment of any amount
with respect to the Securities that remains unclaimed for two years, subject to applicable
abandoned property law. After return to the Company, Holders entitled to the money or securities
must look to the Company for payment as general creditors unless an applicable abandoned property
law designates another person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that period commencing after
the return thereof.



     Section 8.03. Application of Trust Money. The Trustee shall hold in trust all money and
other consideration deposited with it pursuant to Section 8.01 and shall apply such deposited money
and other consideration through the Paying Agent and in accordance with this Indenture to the
payment of amounts due on the Securities. Money and other consideration so held in trust is
subject to the Trustee’s rights under Section 7.07.



ARTICLE 9

Amendments




     Section 9.01. Without Consent of Holders. The Company and the Trustee may modify or amend
this Indenture or the Securities without the consent of any Securityholder to:



53









 






     (a) add guarantees with respect to the Securities;




     (b) remove any guarantee added to the Securities pursuant to clause (a) above, unless
such guarantee is required pursuant to Section 5.01(a);




     (c) to conform, as necessary, this Indenture and the Securities to the “Description of
Notes” as set forth in the Offering Memorandum;




     (d) add to the covenants of the Company for the benefit of the Holders of Securities;




     (e) surrender any right or power herein conferred upon the Company;




     (f) provide for conversion rights of Holders of Securities if any reclassification or
change of the Common Stock or any consolidation, merger or sale of all or substantially all
of the Company’s assets occurs;




     (g) provide for the assumption by a successor Person of the Company’s obligations to
the Holders of Securities in the case of a merger, consolidation, conveyance, transfer or
lease pursuant to Article 5 hereof;




     (h) provide for uncertificated Securities in addition to or in place of Certificated
Securities; provided, however, that uncertificated Securities are issued in registered form
for purposes of Section 163(f) of the Code or in a manner such that uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;




     (i) change the Conversion Rate in accordance with this Indenture; provided, however,
that any increase in the Conversion Rate other than pursuant to Article 10 shall not
adversely affect the interests of the Holders of Securities (after taking into account U.S.
federal income tax and other consequences of such increase);




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




     (k) make any changes or modifications necessary in connection with the registration of
the Securities under the Securities Act as contemplated in the Registration Rights
Agreement; provided, however, that any such change or modification does not, in the good
faith opinion of the Board of Directors of the Company (as evidenced by a Board Resolution)
and the Trustee, adversely affect the interests of the Holders of Securities in any
material respect;




     (l) cure any ambiguity or to correct or supplement any provision herein which may be
inconsistent with any other provision herein or which



54









 






is otherwise defective; provided, however, that any such change or modification does
not, in the good faith opinion of the Board of Directors of the Company (as evidenced by a
Board Resolution) and the Trustee, adversely affect the interests of the Holders of
Securities in any material respect;




     (m) add or modify any other provisions herein with respect to matters or questions
arising hereunder which the Company and the Trustee may deem necessary or desirable and
which, in the good faith opinion of the Board of Directors of the Company (as evidenced by
a Board Resolution) and the Trustee, shall not adversely affect the interests of the
Holders of Securities in any material respect;




     (n) establish the form of Securities if issued in definitive form (substantially in
the form of Exhibit B); or




     (o) evidence and provide for the acceptance of the appointment under this Indenture of
a successor Trustee in accordance with the terms of this Indenture.



     Section 9.02. With Consent of Holders. Except as provided below in this Section 9.02 and in
Section 9.01, this Indenture or the Securities may be amended, modified or supplemented, and
noncompliance in any particular instance with any provision of this Indenture or the Securities may
be waived, in each case with the written consent of the Holders of at least a majority of the
principal amount of the Securities at the time outstanding.



     Without the written consent or the affirmative vote of each Holder of Securities affected
thereby, an amendment, supplement or waiver under this Section 9.02 may not:




     (a) reduce the principal amount of or change the maturity of any Security, or the
payment date of any installment of Interest, Contingent Interest or Additional Amounts
payable on any Security;




     (b) reduce the Redemption Price, Repurchase Price or Fundamental Change Repurchase
Price of, any Security or change the time at which or circumstances under which the
Securities may be redeemed or repurchased;




     (c) change the currency of payment of such Securities or Interest, Contingent
Interest, Additional Amounts, Redemption Price, Fundamental Change Repurchase Price or
Repurchase Price thereon;




     (d) alter the manner of calculation or rate of accrual of Interest, Contingent
Interest or Additional Amounts, or extend the time for payment of any such amount or the
Redemption Price, Fundamental Change Repurchase Price or Repurchase Price of any Security;



55









 






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




     (f) adversely affect the repurchase option of the Holders of the Securities as
provided in Article 3 or the right of the Holders of the Securities to convert any Security
as provided in Article 10, except as otherwise permitted pursuant to Article 5 or Section
10.05 hereof;




     (g) modify the redemption provisions of Article 3 in a manner adverse to the Holders
of the Securities;




     (h) change the Company’s obligation to maintain an office or agency in the places and
for the purposes specified in this Indenture;




     (i) modify any of the provisions of this Section, or reduce the percentage of the
aggregate principal amount of outstanding Securities required to amend, modify or
supplement the Indenture or the Securities or waive an Event of Default, except to provide
that certain other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby; or




     (j) reduce the percentage of the aggregate principal amount of the outstanding
Securities the consent of whose Holders is required for any such supplemental indenture
entered into in accordance with this Section 9.02 or the consent of whose Holders is
required for any waiver provided for in this Indenture.



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



     After an amendment under this Section 9.02 becomes effective, the Company shall mail to each
Holder a notice briefly describing the amendment.



     Section 9.03. Compliance With Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall comply with the TIA as then in effect.



     Section 9.04. Revocation and Effect of Consents, Waivers and Actions. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting Holder’s Security,
even if notation of the consent, waiver or action is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder’s Security
or portion of the Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective.



56









 




After an amendment, waiver or action becomes effective, it shall bind every Securityholder.




     Section 9.05. Notice of Amendments, Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article 9 may, and shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Securities.



     The Trustee shall hold in trust all money and other consideration deposited with it pursuant
to Section 8.01 and shall apply such deposited money and other consideration through the Paying
Agent and in accordance with this Indenture to the payment of amounts due on the Securities. Money
and other consideration so held in trust is subject to the Trustee’s rights under Section 7.07.



     Section 9.06. Trustee to Sign Supplemental Indentures. The Trustee shall sign any
supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein
does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such supplemental
indenture the Trustee shall receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.



     Section 9.07. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



ARTICLE 10

Conversions




     Section 10.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this Article 10, a Holder of a Security 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 Security prior to the close of business on the Business Day
immediately preceding Stated Maturity into cash and shares of Common Stock, if any, at the
Conversion Rate (the “Conversion Obligation”) in effect on the date of conversion only as follows:



57









 






     (1) during any fiscal quarter of the Company (a “Fiscal Quarter”) commencing
after March 31, 2005 (and only during such Fiscal Quarter), if the Last Reported
Sale Price of the Common Stock for at least 20 Trading Days during the period of 30
consecutive Trading Days ending on the last Trading Day of the immediately
preceding Fiscal Quarter is greater than or equal to 120% of the Conversion Price
in effect on such last Trading Day;




     (2) at any time prior to the close of business on the Business Day immediately
preceding the Redemption Date, if the Company has called the Securities for
redemption pursuant to Article 3 hereof, even if the Securities are not otherwise
convertible at that time;




     (3) as provided in clause (b) of this Section 10.01.



     The Company or, at its option, the Conversion Agent on behalf of the Company, shall determine
on a daily basis during the time periods specified in Section 10.01(a)(1) whether the Securities
shall be convertible as a result of the occurrence of an event specified in such Sections and, if
the Securities shall be so convertible, the Company or the Conversion Agent, as applicable, shall
promptly deliver to the Trustee and Conversion Agent or the Company, as applicable written notice
thereof. Whenever the Securities shall become convertible pursuant to this Section 10.01 (as
determined in accordance with this Section 10.01), the Company or, at the Company’s request, the
Trustee in the name and at the expense of the Company, shall promptly notify the Holders of the
event triggering such convertibility in the manner provided in Section 12.02, and the Company shall
also promptly disseminate a press release through Dow Jones & Company, Inc. or Bloomberg Business
News and publish such information on the Company’s Website or through another public medium the
Company may use at that time. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.



     (b) In the event that:




     (1) (A) the Company distributes to all or substantially all holders of Common
Stock rights or warrants entitling them to purchase, for a period expiring within
60 days after the date of such distribution, Common Stock at less than the Last
Reported Sale Price of the Common Stock on the Trading Day immediately preceding
the announcement date for such distribution; or (B) the Company distributes to all
or substantially all holders of Common Stock assets (including cash), debt
securities or rights or warrants to purchase the Company’s securities, 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 announcement date of such distribution, then, in
either case, the Securities may be surrendered for conversion



58









 






at any time on and after the date that the Company gives notice to the Holders
of such distribution, which shall be not less than 20 Business Days prior to the
Ex-Dividend Date for such distribution, until the earlier of the close of business
on the Business Day immediately preceding the Ex-Dividend Date or the date the
Company announces that such distribution shall not take place, even if the
Securities are not otherwise convertible at such time; provided that no Holder of a
Security shall have the right to convert if the Holder may otherwise participate in
such distribution without conversion; or




     (2) a Change of Control occurs pursuant to clause (1) of the definition
thereof set forth above or clause (3) of the definition thereof set forth above
pursuant to which the Common Stock is to be converted into cash, securities or
other property, then the Securities may be surrendered for conversion at any time
from and after the date which is 15 days prior to the anticipated effective date of
such transaction until 15 days after the actual effective date of such transaction
(or, if such transaction also constitutes a Change of Control pursuant to which
Holders have a right to require the Company to repurchase the Securities pursuant
to Section 3.08, until the Business Day immediately preceding the applicable
Fundamental Change Repurchase Date). The Company shall notify Holders at the time
the Company publicly announces the Change of Control transaction giving rise to the
above conversion right (but in no event less than 15 days prior to the effective
date of such transaction). If the Company engages in any reclassification of the
Common Stock (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no par
value to par value) or is party to a consolidation, merger, binding share exchange
or transfer of all or substantially all of its assets pursuant to which Holders of
Common Stock would be entitled to receive cash, securities or other property, then
at the effective time of such transaction, to the extent that it constitutes a
Change of Control as described in this paragraph above as giving rise to a
conversion right, the Conversion Obligation and the Conversion Settlement
Distribution shall be based on the applicable Conversion Rate and the kind and
amount of cash, securities or other property that a holder of one share of the
Common Stock would have received in such transaction (such property, collectively,
the “Exchange Property”). In addition, if a Holder converts Securities following
the effective time of any such transaction, any amounts of the Conversion
Settlement Distribution to be settled in shares of Common Stock shall be paid in
such Exchange Property rather than shares of Common Stock. If the transaction also
constitutes a Change of Control, (A) a Holder can require the Company to repurchase
all or a portion of its Securities pursuant to Section 3.08 or, (B) if such Holder
elects,



59









 






instead, to convert all or a portion of its Securities, such Holder shall
receive Additional Shares upon conversion pursuant to Section 10.01(c), in each
case, subject to the terms and conditions set forth in each such Section.



     (c) If and only to the extent a Holder timely elects to convert Securities during the period
specified in Section 10.01(b)(2) above on or prior to December 20, 2012, and 10% or more of the
consideration for the Common Stock in such Change of Control transaction consists of consideration
other than common stock traded or scheduled to be traded immediately following such transaction on
a U.S. national securities exchange or the Nasdaq National Market, the Conversion Rate shall be
increased by an additional number of shares of Common Stock (the “Additional Shares”) as described
below; provided that if the Stock Price paid in connection with such transaction is greater than
$150.00 or less than $45.00 (subject in each case to adjustment as described below), no Additional
Shares shall be added to the Conversion Rate. Notwithstanding this Section 10.01(c), if the
Company elects to adjust the Conversion Rate pursuant to Section 10.01(d), the provisions of
Section 10.01(d) shall apply in lieu of the provisions of this Section 10.01(c). The Company shall
notify Holders, at least 20 days prior to the anticipated effective date of such transaction
causing any increase of the Conversion Rate pursuant to this Section 10.01(c), whether the Company
elects to increase the Conversion Rate as described above or to adjust the Conversion Rate pursuant
to Section 10.01(d).



     The number of Additional Shares to be added to the Conversion Rate as described in the
immediately preceding paragraph shall be determined by reference to the table attached as Schedule
I hereto, based on the effective date of such Change of Control transaction and the Stock Price
paid in connection with such transaction; provided that if the Stock Price is between two Stock
Price amounts in the table or such effective date is between two effective dates in the table, the
number of Additional Shares shall be determined by a straight-line interpolation between the number
of Additional Shares set forth for the higher and lower Stock Price amounts and the two dates, as
applicable, based on a 365-day year. The “effective date” with respect to a Change of Control
transaction means the date that a Change of Control becomes effective.



     With respect to any Securities tendered for conversion to which Additional Shares apply, any
shares of Common Stock to be delivered upon conversion of such Securities pursuant to Section 10.02
shall be delivered to Holders who elect to convert their Securities on the later of (i) the fifth
Business Day following the effective date and (2) the third Business Day following the final day of
the Cash Settlement Period.



     The Stock Prices set forth in the first row of the table in Schedule I hereto shall be
adjusted as of any date on which the Conversion Rate of the Securities is adjusted pursuant to
Section 10.04. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior
to such adjustment, multiplied by a fraction,



60









 




the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise
to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares shall be adjusted in the same manner as the Conversion Rate as set
forth in Section 10.04.




     Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion of the Securities exceed 22.1729 per $1,000 principal amount of
Securities, subject to adjustments in the same manner as the Conversion Rate as set forth in
Section 10.04.



     (d) Notwithstanding the provisions of Section 10.01(c), in the case of a Change of Control
that would lead to the issuance of Additional Shares as set forth in clause (c) above that is also
a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by
Additional Shares as described in Section 10.01(c), elect to adjust the Conversion Rate and the
related Conversion Obligation such that from and after the effective date of such Public Acquirer
Change of Control, Holders of Securities shall be entitled to convert their Securities (subject to
the satisfaction of the conditions to conversion set forth in Section 10.01(a)) into Public
Acquirer Common Stock. The Conversion Rate following the effective date of such transaction will
be a number of shares of Public Acquirer Common Stock equal to the product of the Conversion Rate
in effect immediately before the Public Acquirer Change of Control times the average of the
quotients obtained, for each Trading Day in the 10 consecutive Trading Day period ending on the
Trading Day immediately preceding the effective date of such Public Acquirer Change of Control (the
“Valuation Period”), of:




(i) the Acquisition Value of our Common Stock on each such Trading Day in the Valuation
Period, divided by




(ii) the Last Reported Sale Price of the Public Acquirer Common Stock on each such Trading Day
in the Valuation Period.



     The “Acquisition Value” of the Common Stock means, for each Trading Day in the Valuation
Period, the value of the consideration paid per share of Common Stock in connection with such
Public Acquirer Change of Control, as follows:




(i) for any cash, 100% of the face amount of such cash;




(ii) for any Public Acquirer Common Stock, 100% of the Last Reported Sale Price of such Public
Acquirer Common Stock on such trading day; and




(iii) for any other securities, assets or property, 102% of the fair market value of such
security, asset or property on such Trading Day, as determined by three independent nationally
recognized investment banks selected by the Company for this purpose.



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     “Public Acquirer Change of Control” means an event constituting a corporate transaction that
would otherwise obligate the Company to increase the Conversion Rate as described in Section
10.01(c) and the acquirer, the Person formed by or surviving the merger or consolidation or any
entity that is direct or indirect “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act) of more than 50% of such Person’s or Acquirer’s Voting Stock has a class of common stock
traded on a national securities exchange or quoted on a U.S. national securities exchange or quoted
on the National Association of Securities Dealers Automated Quotation System or which shall be so
traded or quoted when issued or exchanged in connection with such Change of Control (the “Public
Acquirer Common Stock”); provided, that if there is more than one of such entity, the relevant
entity shall be such entity with the most direct beneficial ownership to such acquirer’s or
Person’s capital stock.



     Upon a Public Acquirer Change of Control, if the Company so elects, Holders may convert their
Securities (subject to the satisfaction of the conditions to conversion set forth in Section
10.01(a)) at the adjusted Conversion Rate described above but shall not be entitled to the
increased Conversion Rate described in Section 10.01(c). The Company shall notify Holders of its
election in its notice to Holders pursuant to Section 10.01(b)(2) above. Holders may convert their
Securities upon a Public Acquirer Change of Control during the period specified in Section
10.01(b)(2). In addition, Holders can also, subject to certain conditions, require the Company to
repurchase all or a portion of their Securities as described in Section 3.08.



     After any adjustment of the Conversion Rate in connection with a Public Acquirer Change of
Control, the Conversion Rate shall be subject to further similar adjustments in the event that any
of the events described in Section 10.03(a)(i) occur thereafter.



     Section 10.02. Conversion Procedure; Conversion Rate; Fractional Shares. (a) Subject to
Section 10.01 and the Company’s rights under Section 10.03, each Security shall be convertible at
the office of the Conversion Agent into a combination of cash and fully paid and nonassessable
shares (calculated to the nearest 1/100th of a share) of Common Stock, if any at a rate (the
“Conversion Rate”) equal to, initially, 15.5600 shares of Common Stock for each $1,000 principal
amount of Securities. The Conversion Rate shall be adjusted in certain instances as provided in
Section 10.04 hereof, but shall not be adjusted for any accrued and unpaid Interest, Contingent
Interest, or Additional Amounts, if any. Upon conversion, no payment shall be made by the Company
with respect to any accrued and unpaid Interest, including Contingent Interest, if any. Instead,
such amount shall be deemed paid by the applicable Conversion Settlement Distribution delivered
upon conversion of any Security. In addition, no payment or adjustment shall be made in respect of
dividends on the Common Stock with a record date prior to the Conversion Date. Notwithstanding the
foregoing, upon conversion, a Holder shall receive any accrued and unpaid Additional Amounts to the
Conversion Date. The Company shall not issue any fraction of a share of Common Stock in



62









 




connection with any conversion of Securities, but instead shall, subject to Section 10.03
hereof, make a cash payment (calculated to the nearest cent) equal to such fraction multiplied by
the Last Reported Sale Price of the Common Stock on the Trading Day prior to the Conversion Date.




     (b) Before any Holder of a Security shall be entitled to convert the same into a combination
of cash and Common Stock, if any, such Holder shall (1) in the case of Global Securities, comply
with the procedures of the Depositary in effect at that time for converting a beneficial interest
in a Global Security, and in the case of Certificated Securities, surrender such Securities, duly
endorsed to the Company or in blank, at the office of the Conversion Agent, and (2) give written
notice to the Company in the form on the reverse of such Certificated Security (the “Conversion
Notice”) at said office or place that such Holder elects to convert the same and shall state in
writing therein the principal amount of Securities to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for Common Stock included in
the Conversion Settlement Distribution, if any, to be registered.



     Before any such conversion, a Holder also shall pay all taxes or duties, if any, as provided
in Section 10.06 and any amount payable pursuant to Section 10.02(g).



     If more than one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares of Common Stock, if any, that shall be deliverable upon conversion as
part of the Conversion Settlement Distribution shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent permitted thereby)
so surrendered.



     (c) A Security shall be deemed to have been converted as of the close of business on the date
(the “Conversion Date”) that the Holder has complied with Section 10.02(b).



     (d) The Company shall, on the Conversion Settlement Date, (i) pay the cash component
(including cash in lieu of any fraction of a share to which such Holder would otherwise be
entitled) of the Conversion Obligation determined pursuant to Section 10.03 to the Holder of a
Security surrendered for conversion, or such Holder’s nominee or nominees, and (ii) issue, or cause
to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates for the number of full shares of Common Stock, if any, to which such Holder
shall be entitled as part of such Conversion Obligation. The Company shall not be required to
deliver certificates for shares of Common Stock while the stock transfer books for such stock or
the security register are duly closed for any purpose, but certificates for shares of Common Stock
shall be issued and delivered as soon as practicable after the opening of such books or security
register, and the Person or Persons entitled to receive the Common Stock as part of the applicable
Conversion Settlement Distribution upon such conversion shall be



63









 




treated for all purposes as the record holder or holders of such Common Stock, as of the close
of business on the applicable Conversion Settlement Date.




     (e) In case any Security 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 Security so surrendered, without charge to such Holder (subject to the provisions of Section
10.06 hereof), a new Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Securities.



     (f) By delivering the combination of cash and shares of Common Stock, if any, together with a
cash payment in lieu of any fractional shares to the Conversion Agent or to the Holder or such
Holder’s nominee or nominees, the Company shall have satisfied in full its Conversion Obligation
with respect to such Security, and upon such delivery, accrued and unpaid Interest, if any, and
Contingent Interest, if any, with respect to such Security shall be deemed to be paid in full
rather than canceled, extinguished or forfeited, and such amounts shall no longer accrue.



     (g) If a Securityholder delivers a Conversion Notice after the Interest Record Date for a
payment of Interest (including Contingent Interest, if any) but prior to the corresponding Interest
Payment Date, such Securityholder must pay to the Company, at the time such Securityholder
surrenders Securities for conversion, an amount equal to the Interest (including Contingent
Interest, if any, and excluding, for the avoidance of doubt, Additional Amounts, if any), that has
accrued and shall be paid on the related Interest Payment Date. The preceding sentence shall not
apply if (1) the Company has specified a Redemption Date that is after an Interest Record Date but
on or prior to the corresponding Interest Payment Date, (2) the Company has specified a Fundamental
Change Repurchase Date during such period referred to in clause (1) of this paragraph or (3) if any
overdue Interest exists at the time of conversion with respect to the Securities converted.



     Section 10.03. Payment Upon Conversion. (a) Upon conversion of Securities, the Company
shall deliver to Holders surrendering Securities for conversion, for each $1,000 principal amount
of Securities, a settlement amount (the “Conversion Settlement Distribution”) on the Conversion
Settlement Date consisting of:




     (i) cash amount (the “Cash Amount”) equal to the lesser of $1,000 and the Conversion
Value; and




     (ii) to the extent the Conversion Value exceeds $1,000, a number of shares of Common
Stock equal to the sum of, for each day of the Cash Settlement Period described below, the
greater of:




     (A) zero and



64









 






     (B) the quotient of




     (1) 10% of the difference between (x) the product of the
Conversion Rate (plus any Additional Shares as described under Section
10.01(c) or, if the Securities are converted during a Registration
Default, 103% of such Conversion Rate and any such Additional Shares)
and the Last Reported Sale Price of the Common Stock on such date, and
(y) $1,000, divided by




     (2) the Last Reported Sale Price of the Common Stock for such day.



     The Company shall not issue fractional shares of Common Stock upon conversion of the
Securities. Instead, the Company shall pay the cash value of such fractional shares based upon the
Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the
Conversion Date.



     The ‘‘Conversion Value’’ means the product of (1) the Conversion Rate in effect (plus any
Additional Shares as described under Section 10.01(c)) or, if the Securities are converted during a
Registration Default, 103% of such Conversion Rate (and any such Additional Shares) and (2) the
average of the Last Reported Sale Prices of the Common Stock for the Trading Days during the Cash
Settlement Period.



     The ‘‘Cash Settlement Period’’ with respect to any Securities converted means the 10
consecutive Trading Days beginning on the second Trading Day after the Conversion Date for those
Securities.



     (b) If a Holder tenders Securities for conversion and the Conversion Value is being determined
at a time when the Securities are convertible into Exchange Property, the Conversion Value of each
Security shall be determined based on the kind and amount of such Exchange Property and the value
thereof during the Cash Settlement Period. Settlement of Securities tendered for conversion after
the effective date of any transaction giving rise to Exchange Property shall be as set forth above.



     For the purposes of this Section, the Last Reported Sale Price of the Common Stock shall be
deemed to equal the sum of (A) 100% of the value of any Exchange Property consisting of cash
received per share of Common Stock, (B) the Last Reported Sale Price of any Exchange Property
received per share of Common Stock consisting of securities that are traded on a U.S. national
securities exchange or approved for quotation on the Nasdaq National Market and (3) the Fair Market
Value of any other Exchange Property received per share, as determined by three independent
nationally recognized investment banks selected by the Company for this purpose. Settlement (in
cash and/or shares) will occur on the third Business Day following the final day of such Cash
Settlement Period.




65










 






     Section 10.04
.. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company in accordance with this Section 10.04:



          (a)      In case the Company shall hereafter pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at
the opening of business on the date following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution by a fraction,




     (i) the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding at the close of business on the date fixed for such determination plus
(B) the total number of shares of Common Stock constituting the dividend or distribution;
and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination,



such increase to become effective immediately after the opening of business on the day following
the date fixed for such determination. If any dividend or distribution of the type described in
this Section 10.04 is declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.




          (b)      In case the Company shall issue rights, warrants or options (other than pursuant to any
dividend reinvestment or share repurchase plans) to all holders of its outstanding shares of Common
Stock entitling them (for a period expiring within 60 days after the date of such distribution) to
subscribe for or purchase shares of Common Stock at a price per share less than the Current Market
Price on the date fixed for determination of stockholders entitled to receive such rights or
warrants, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of
stockholders entitled to receive such rights or warrants by a fraction,




          (i)      the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the date fixed for determination of stockholders entitled to receive
such rights or warrants plus (B) the total number of additional shares of Common Stock
offered for subscription or purchase, and



          (ii)      the denominator of which is the sum of (A) the number of shares of Common Stock
outstanding on the date fixed for determination of stockholders entitled to receive such
rights or warrants plus (B) the total number of additional shares of Common Stock that the
aggregate offering



66









 






price of the total number of shares of Common Stock offered for subscription or
purchase would purchase at the Current Market Price of the Common Stock on such date.



     Such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the day following the date
fixed for determination of stockholders entitled to receive such rights or warrants. To the extent
that shares of Common Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. In the event that such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate
that would then be in effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any rights, options or
warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received by the Company for such rights
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.



     (c)      In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be proportionately reduced,
such increase or reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or combination becomes
effective.



     (d)      In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock shares of any class of Capital Stock of the Company or evidences of
its indebtedness or assets (including securities, but excluding any rights, options or warrants
referred to in Section 10.04(b) and excluding any dividend or distribution (x) paid exclusively in
cash or (y) referred to in Section 10.04(a)) (any of the foregoing hereinafter in this Section
10.04(d) called the “Distributed Assets”), then, in each such case, the Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate
in effect on the Record Date with respect to such distribution by a fraction,




          (i)      the numerator of which shall be the Current Market Price per share of the Common
Stock on such Record Date; and



67









 






          (ii)      the denominator of which shall be the Current Market Price per share of the
Common Stock less the Fair Market Value (as determined by the Board of Directors and
described in a resolution of the Board of Directors) on the Record Date of the portion of
the Distributed Assets so distributed applicable to one share of Common Stock,



such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided, however, that in the event (1) the then Fair Market Value (as
so determined) of the portion of the Distributed Assets so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price of the Common Stock on such
Record Date or (2) the Current Market Price of Common Stock on the Record Date exceeds the then
Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed
applicable to one share of Common Stock by less than $1.00, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to receive upon
conversion the amount of Distributed Assets such Holder would have received had such Holder
converted each Security on the Record Date for such distribution. In the event that such dividend
or distribution is not so paid or made, the Conversion Rate shall 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 the Fair Market Value of any distribution for purposes of this
Section 10.04(d) 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
Current Market Price of the Common Stock.




     Rights or warrants distributed by the Company to all holders of Common Stock entitling the
Holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this Section 10.04 (and
no adjustment to the Conversion Rate under this Section 10.04 shall 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 10.04. If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of any distribution (or
deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto that was counted



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for purposes of calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 10.04 was made, (1) in the case of any such rights or warrants that shall
all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate
shall be readjusted upon such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder or holders of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights
or warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.




     No adjustment of the Conversion Rate shall be made pursuant to this Section 10.04(d) in
respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent
that such rights or warrants are actually distributed, or reserved by the Company for distribution
to Holders of Securities upon conversion by such Holders of Securities to Common Stock.



     For purposes of this Section 10.04(d) and Section 10.04(a) and (b), any dividend or
distribution to which this Section 10.04(d) is applicable that also includes shares of Common
Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), 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 or warrants (and any
Conversion Rate adjustment required by this Section 10.04(d) with respect to 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 or warrants (and any further Conversion Rate adjustment
required by Section 10.04(a) and (b) with respect to such dividend or distribution shall then be
made), except (A) the Record Date of such dividend or distribution shall be substituted as “the
date fixed for the determination of stockholders entitled to receive such dividend or other
distribution”, “the date fixed for the determination of stockholders entitled to receive such
rights or warrants” and “the date fixed for such determination” within the meaning of Section
10.04(a) and (b), and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding at the close of business on the date fixed for such determination”
within the meaning of Section 10.04(a).



     If any Distributed Assets requiring any adjustment pursuant to this Section 10.04(d) consists
of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the
Company which are or in connection with such distribution will be listed or quoted for trading on a
U.S. national securities exchange or the Nasdaq National Market, the Conversion Rate in effect
immediately before the close of business on the Record Date fixed for determination of shareholders
entitled to receive the distribution shall instead be



69









 





increased by multiplying the Conversion Rate then in effect by a fraction, (A) the numerator of
which is the sum of (1) the average of the Last Reported Sale Prices of such distributed security
for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend
Date on the Nasdaq National Market or such other national or regional exchange or market on which
such securities are then listed or quoted plus (2) the average of the Closing Prices of the Common
Stock over the same Trading Day period and (B) the denominator of which is such average of the Last
Reported Sale Prices of the Common Stock for the 10 Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date on the Nasdaq National Market or such other national
or regional exchange or market on which the securities are then listed or quoted.




     (e)      In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock cash (an “Extraordinary Cash Dividend”) (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary), then, in such case, the Conversion Rate shall be increased so that the
same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior
to the close of business on the Record Date for such Extraordinary Cash Dividend by a fraction,




          (i) the numerator of which shall be the Current Market Price of the Common Stock on
such Record Date, and




          (ii) the denominator of which shall be such Current Market Price of the Common Stock
minus the amount per share of such dividend or the amount of cash so distributed applicable
to one share of Common Stock,



such adjustment to be effective immediately prior to the opening of business on the day following
such Record Date; provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current Market Price of the
Common Stock on such Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion the amount of cash such
Holder would have received had such Holder converted each Security on such Record Date. In the
event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.




     (f)      In case a tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration per share of Common
Stock having a Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors) that as of the last
time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Last Reported



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Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, the
Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the Expiration Time by a fraction,





          (i)      the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Last Reported Sale Price of the Common
Stock on the first Trading Day after the Expiration Time, and




          (ii)      the denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by the
Last Reported Sale Price of the Common Stock on the first Trading Day after the Expiration
Time,



such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that 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 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.




     (g)      In case of a tender or exchange offer made by a Person other than the Company or any
Subsidiary for an amount that increases the offeror’s ownership of Common Stock to more than
twenty-five percent (25%) of the Common Stock outstanding and shall involve the payment by such
Person of consideration per share of Common Stock having a Fair Market Value (as determined by the
Board of Directors, whose determination shall be conclusive, and described in a resolution of the
Board of Directors) that as of the last time (the “Offer Expiration Time”) tenders or exchanges may
be made pursuant to such tender or exchange offer (as it shall have been amended) exceeds the Last
Reported Sale Price of the Common Stock on the first Trading Day after the Offer Expiration Time,
and in which, as of the Offer Expiration Time the Board of Directors is not recommending rejection
of the offer, the Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the Offer Expiration
Time by a fraction




      
    (i)           the numerator of
which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum



71









 






specified in the terms of the tender or exchange offer) of all shares of Common Stock
validly tendered or exchanged and not withdrawn as of the Offer Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the “Accepted Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Accepted Purchased Shares) at the Offer Expiration Time and the Last Reported Sale Price of
the Common Stock on the first Trading Day after the Offer Expiration Time, and




          (ii) the denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Accepted Purchase Shares) at the Offer Expiration Time
multiplied by the Last Reported Sale Price of the Common Stock on the first Trading Day
after the Offer Expiration Time,



such adjustment to become effective immediately prior to the opening of business on the day
following the Offer Expiration Time. In the event that such Person is obligated to purchase shares
pursuant to any such tender or exchange offer, but such Person is permanently prevented by
applicable law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if
such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment
described in this Section 10.04(g) shall not be made if, as of the Offer Expiration Time, the
offering documents with respect to such offer disclose a plan or intention to cause the Company to
engage in any transaction described in Section 10.05. Notwithstanding the foregoing, the adjustment
described in this Section 10.04(g) shall not be made to the extent of any such increase in the
Conversion Rate that would cause the Company, upon making such adjustment, to solicit shareholder
consent as then required by the Nasdaq National Market or other national securities exchange on
which the Common Stock is then listed.




     (h)      The Company may make such increases in the Conversion Rate, in addition to those required
by this Section 10.04, as the Board of Directors considers to be advisable to avoid or diminish any
U.S. federal income tax to holders of Common Stock resulting from any stock distribution; provided,
however, that such increase in the Conversion Rate shall not adversely affect the interests of the
Holders of Securities (after taking into account U.S. federal income tax and other consequences of
such increase).



     To the extent permitted by applicable law and the listing requirements of the Nasdaq National
Market or any national securities exchange on which the Common Stock is then listed, the Company
from time to time may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) days, the increase is irrevocable during the period and the Board of
Directors shall have made a determination that such increase would be in the best interests of the
Company, which determination shall be conclusive. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company



72









 





shall mail to Holders of record of the Securities a notice of the increase at least fifteen
(15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it shall be in effect.




     (i)      All calculations under this Article 10 shall be made by the Company and shall be made to
the nearest cent or to the nearest one-ten thousandth of a share, as the case may be, with one
half-cent and 0.005 of a share, respectively, being rounded upward. No adjustment to the
Conversion Rate shall be required unless the adjustment requires an increase or decrease of at
least 1.0% of the Conversion Rate. However, any adjustments which are not required to be made
because they would have required an increase or decrease of less than 1.0% shall be carried forward
and be made on the first to occur of (i) any subsequent adjustment, (ii) the first day of the next
calendar year and (iii) upon any conversion of the Securities. Notwithstanding the foregoing, no
adjustment need be made for:




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




          (ii) the issuance of any shares of Common Stock or options or rights to purchase those
shares pursuant to any present or future employee, director or consultant benefit plan or
program of or assumed by the Company or any of its Subsidiaries,




          (iii) the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security outstanding as of the date the
Securities were first issued,




          (iv) a change in the par value of the Common Stock, or




          (v) accrued and unpaid Interest, including Contingent Interest or Additional Amounts,
if any.




To the extent the Securities become convertible into cash, assets, property or securities
(other than Capital Stock of the Company), no adjustment need be made thereafter as to the
cash, assets, property or such securities.



     (j)      Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent (if other than the Trustee) an Officer’s 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 Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery



73









 





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 Security at his last address appearing on the Security register provided for in Section 2.03
of this Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.




     (k)      In any case in which this Section 10.04 provides that an adjustment shall become effective
immediately after (1) a record date or Record Date for an event, (2) the date fixed for the
determination of stockholders entitled to receive a dividend or distribution pursuant to Section
10.04(a), (3) a date fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 10.04(b), (4) the effective date of any subdivision or combination of
Common Stock, (5) the Expiration Time for any tender or exchange offer pursuant to Section
10.04(f), or (6) the Offer Expiration Time for a tender offer or exchange offer pursuant to Section
10.04(g) (each a “Determination Date”), the Company may elect to defer until the occurrence of the
relevant Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any Security
converted after such Determination Date and before the occurrence of such Adjustment Event, the
additional shares of Common Stock or other securities issuable upon such conversion by reason of
the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (y) paying to such Holder any amount in cash
in lieu of any fraction pursuant to Section 10.04(a). For purposes of this Section 10.04(k), the
term “Adjustment Event” shall mean:




          (i) in any case referred to in clause (1) hereof, the occurrence of such event,




          (ii) in any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,




          (iii) in any case referred to in clause (3) hereof, the date of expiration of such
rights or warrants,




          (iv) in any case referred to in clause (4) hereof, the date of such subdivision or
combination, and




          (v) in any case referred to in clause (5) or clause (6) hereof, the date a sale or
exchange of Common Stock pursuant to such tender or exchange offer is consummated and
becomes irrevocable.



     (l)      For purposes of this Section 10.04, 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 shall not pay any



74









 





dividend or make any distribution on shares of Common Stock held in the treasury of the
Company.




     Section 10.05 . Effect of Reclassification, Consolidation, Merger or Sale.
(a) If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a subdivision or combination to which Section
10.04(c) applies or a change in par value), (ii) any consolidation, merger, binding share exchange
or combination of the Company with another Person as a result of which holders of Common Stock
shall be entitled to receive Exchange Property with respect to or in exchange for such Common
Stock, or (iii) any sale or conveyance of all or substantially all the properties and assets of the
Company to any other Person as a result of which holders of Common Stock shall be entitled to
receive Exchange Property with respect to or in exchange for such Common Stock, then the Company or
the successor or purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) providing for the conversion and settlement of the
Securities as set forth in this Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 10. If, in the case of any such reclassification, change, merger,
consolidation, binding share exchange, combination, sale or conveyance, the Exchange Property
receivable thereupon by a holder of Common Stock 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, change, merger, consolidation, statutory share exchange, combination, sale
or conveyance, then such supplemental indenture shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary by reason of the
foregoing.



     (b)      The Conversion Obligation with respect to each $1,000 principal amount of Securities
converted following the effective date of any such transaction, shall be calculated (as provided in
clause (c) below) based on the Exchange Property assuming such holder of Common Stock did not
exercise his rights of election, if any, as to the kind or amount of Exchange Property receivable
upon such consolidation, merger, binding share exchange, sale or conveyance (provided that, if the
Exchange Property receivable upon such consolidation, merger, binding share exchange, sale or
conveyance is not the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised (“Non-Electing Share”), then for the purposes of this
Section 10.05 the Exchange Property receivable upon such consolidation, merger, binding share
exchange, sale or conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares).



     (c)      The Conversion Obligation in respect of any Securities converted following the effective
date of any such transaction shall be computed in the same manner as set forth in Section 10.03(a)
except that (1) the Cash Settlement Period



75









 





shall be the 10 Trading Day period beginning on the second Trading Day after the
Conversion Date (or, in the event the Conversion Date is on the Business Day prior to the Stated
Maturity, the 10 Trading Day period beginning on the second Trading Day after the Stated Maturity),
and (2) if the Securities become convertible into Exchange Property, the Last Reported Sale Price
of the Common Stock shall be deemed to equal the sum of (A) 100% of the value of any Exchange
Property consisting of cash received per share of Common Stock, (B) the Last Reported Sale Price of
any Exchange Property received per share of Common Stock consisting of securities that are traded
on a U.S. national securities exchange or approved for quotation on the Nasdaq National Market and
(3) the Fair Market Value of any other Exchange Property received per share, as determined by three
independent nationally recognized investment banks selected by the Company for this purpose.
Settlement (in cash and/or shares) shall occur on the third Business Day following the final day of
such Cash Settlement Period, provided, that any amount of the Conversion Settlement Distribution to
be delivered in shares of Common Stock shall be paid in Exchange Property rather than shares of
Common Stock. If the Exchange Property includes more than one kind of property, the amount of
Exchange Property of each kind to be delivered shall be in the proportion that the value of the
Exchange Property (as calculated pursuant to Section 10.03) of such kind bears to the value of all
such Exchange Property. If the foregoing calculations would require the Company to deliver a
fractional share or unit of Exchange Property to a Holder of Securities being converted, the
Company shall deliver cash in lieu of such fractional share or unit based on the value of the
Exchange Property.




     (d)      The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder of Securities, at its address appearing on the Security register provided for
in Section 2.03 of this Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental indenture.



     (e)      The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges, combinations, sales
and conveyances.



     If this Section 10.05 applies to any event or occurrence, Section 10.04 shall not apply.



     
Section 10.06. Taxes on Shares Issued. The issue of stock certificates on
conversions of Securities shall be made without charge to the converting Holder for any tax in
respect of the issue thereof, except for applicable withholding, if any. The Company shall not,
however, be required to pay any tax or duty which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the Holder of any
Securities converted, and the Company shall not be required to issue or deliver any such stock
certificate unless and until the Person or Persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.



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     Section 10.07. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock. (a) 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 for the conversion of the Securities from time to time as such Securities
are presented for conversion.



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



     (c)      (i) The Company covenants that all shares of Common Stock which may be issued upon
conversion of Securities shall upon issue be fully paid and non-assessable by the Company and free
from all taxes, liens and charges with respect to the issue thereof.




          (ii) The Company covenants that, if any shares of Common Stock to be provided for the
purpose of conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be validly
issued upon conversion, the Company shall in good faith and as expeditiously as possible,
to the extent then permitted by the rules and interpretations of the Securities and
Exchange Commission (or any successor thereto), endeavor to secure such registration or
approval, as the case may be.



     Section 10.08. Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to any Holder of
Securities to determine the Conversion Rate or whether any facts exist which may require any
adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent
shall not be accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Security; 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 Security
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 10. 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



77









 





Section 10.05 relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by Holders upon the conversion of their Securities after any
event referred to in such Section 10.05 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon the Officer’s Certificate (which the
Company shall be obligated to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.





Section 10.09 . 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 10.04; or




          (b)      the Company shall authorize the granting to the holders of all of its Common Stock
of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate pursuant to
Section 10.04(b); or




          (c)      of any reclassification or reorganization of the Common Stock of the Company
(other than a subdivision or combination of its outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par value to par value), or of any
consolidation, merger or statutory share exchange 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 Holder of Securities
at his address appearing on the register provided for in Section 2.03 of this Indenture, as
promptly as possible but in any event at least ten (10) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution of rights or warrants, or, if a record is not to be taken,
the date as of which the Holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, or statutory share exchange, 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, or statutory share
exchange, 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,




78









 








reclassification, consolidation, merger, or statutory share exchange, sale, transfer, dissolution,
liquidation or winding up.




     Section 10.10
.. Shareholder Rights Plan. To the extent that the Company has a rights plan in
effect upon conversion of the Securities into Common Stock, a Holder who converts securities shall
receive, in addition to the Common Stock, the rights under the rights plan, unless prior to any
conversion, the rights have separated from the Common Stock, in which case the Conversion Rate
shall be adjusted at the time of separation as if the Company distributed to all Holders of Common
Stock, shares of the Company’s Capital Stock, evidences of indebtedness or assets as described in
Section 10.04(d) above, subject to readjustment in the event of the expiration, termination or
redemption of such rights. In lieu of any such adjustment, the Company may amend such applicable
shareholder rights agreement to provide that upon conversion of the Securities the Holders shall
receive, in addition to the Common Stock issuable upon such conversion, the rights which would have
attached to such Common Stock if the rights had not become separated from the Common Stock under
such applicable shareholder rights agreement.



     Section 10.11
.. Unconditional Right of Holders to Convert. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to convert its Security in accordance with this Article 10 and to bring an action
for the enforcement of any such right to convert, and such rights shall not be impaired or affected
without the consent of such Holder.



ARTICLE 2



Contingent Interest




     Section 11.01
.. Contingent Interest. (a) The Company shall pay Contingent Interest with
respect to the Securities for any Contingent Interest Period if the average Trading Price of
Securities for the five consecutive Trading Days ending on the third Trading Day immediately
preceding the first day of the relevant Contingent Interest Period equals or exceeds 120% of the
principal amount of such Securities.



     (b)      The amount of Contingent Interest payable per $1,000 principal amount of Securities 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 Securities 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 Securities. The Company shall make any such calculations using the Trading
Price provided by the Bid Solicitation Agent. The Bid Solicitation Agent shall be entitled in its
sole discretion to consult



79









 





with the Company and to request the assistance of the Company in connection with the Bid
Solicitation Agent’s duties pursuant to this Article 11, and the Company agrees, if requested by
the Bid Solicitation Agent, to cooperate with, and provide assistance to, the Trustee in carrying
out its duties under this Article 11.




     Section 11.02
.. 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 Securities that are submitted for
conversion, as payments of Interest.



     Section 11.03
.. Contingent Interest Notification. (a) By the first Business Day of a
Contingent Interest Period for which Contingent Interest shall be payable, the Company shall
disseminate a press release containing this information or publish the information on its Website
or through such other public medium as it may use at that time.



ARTICLE 3



Miscellaneous




     Section 12.01
.. Trust Indenture Act Controls. If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included in this Indenture
by the TIA, the required provision shall control.



     Section 12.02
.. Notices. Any request, demand, authorization, notice, waiver, consent or
communication by the Company or the Trustee to the other is duly given if in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission to the following facsimile numbers:



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	 	if to the Company:
	 	 
	 
	 	 	 	 
	

	 	Cal Dive International, Inc.

400 N. Sam Houston Parkway East, Suite 400

Houston, Texas 77060

Attn: General Counsel

Facsimile: 281-618-0505	 	 
	 
	 	 	 	 
	

	 	With a copy to:	 	 
	 
	 	 	 	 
	

	 	Fulbright & Jaworski L.L.P.

1301 McKinney, Suite 5100

Houston Texas 77010

Facsimile: 713-651-5246

Attention: Arthur Rogers, Esq.	 	 
	 
	 	 	 	 
	

	 	if to the Trustee:	 	 
	 
	 	 	 	 
	

	 	JPMorgan Chase Bank, National Association

4 New York Plaza, 15th Floor

New York, NY 10004

Attn: Institutional Trust Services

Fax: 212-623-6167	 	 






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



     Any notice or communication given to a Securityholder shall be delivered to the
Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage
prepaid, at the Securityholder’s address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time prescribed.



     Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not received by the addressee;
provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until
the Trustee actually receives same at the address given above.



     If the Company mails a notice or communication to the Securityholders, it shall mail a copy to
the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.



     Section 12.03
.. Communication by Holders with Other Holders. Securityholders may communicate
pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities.



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The Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone
else shall have the protection of TIA Section 312(c).



     Section 12.04 .Certificate and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:




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




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



     Section 12.05 . Statements Required in Certificate or Opinion. Each Officer’s Certificate or
Opinion of Counsel with respect to compliance with a covenant or condition provided for in this
Indenture shall include:




          (1)      a statement that each person making such Officer’s Certificate or Opinion of
Counsel has read such covenant or condition;




          (2)      a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officer’s Certificate or Opinion of
Counsel are based;




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




          (4)      a statement that, in the opinion of such person, such covenant or condition has
been complied with.



     Section 12.06 . Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.



     Section 12.07 . Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the
Conversion Agent and the Paying Agent may make reasonable rules for their functions.



     Section 12.08 . legal holidays. A “legal holiday” is any day other than a Business Day. If
any specified date (including a date for giving notice) is a legal holiday, the action shall be
taken on the next succeeding day that is not a legal holiday, and, if the action to be taken on
such date is a payment in respect of the



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Securities, no interest shall accrue with respect to such payment for the intervening period.




     Section 12.09 .Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF.



     Section 12.10 . No Recourse Against Others. A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the
issue of the Securities.



     Section 12.11 . Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.



     Section 12.12 . Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.



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     IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on
behalf of the respective parties hereto as of the date first above written.



	 	 	 	 	 	 	 
	 	 	CAL DIVE INTERNATIONAL, INC.
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ A. Wade Pursell


Name: A. Wade Pursell

Title: Senior Vice President and CFO
	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ James Lewis Connor, III	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name: James Lewis Connor, III

Title: Senior Vice President and General Counsel	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL

             ASSOCIATION, as Trustee
	 
	 	 	 	 	 	 
	

	 	By:
	 	/s/ Paul J. Schmalzel	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name: Paul J. Schmalzel

Title: Vice President	 	 






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EXHIBIT A




[FORM OF FACE OF GLOBAL SECURITY]




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



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



     THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:




	 	(1)  	REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT OF 1933;
	 
	 	(2)  	AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 3.25%
CONVERTIBLE SENIOR NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO CAL DIVE INTERNATIONAL, INC. OR




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ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND




	 	(3)  	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.





     The foregoing legend may be removed from this Security upon the earlier of the Resale
Restriction Termination Date or the transfer of the Securities pursuant to clause 2(C) or 2(D)
above.



     FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”), THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE OF
THIS SECURITY IS $1000 PER $1000 OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS SECURITY IS MARCH
30, 2005. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 7.045%, COMPOUNDED SEMI-ANNUALLY.



     THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST,
THE ISSUE PRICE, AMOUNT OF TAX 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: CAL DIVE INTERNATIONAL, INC., 400 N SAM HOUSTON PARKWAY EAST, SUITE 400,
HOUSTON, TEXAS 77060, ATTENTION: GENERAL COUNSEL.



     Pursuant to Section 2.14 of the Indenture, the foregoing legend is required for U.S. federal
income tax purposes.



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CAL DIVE INTERNATIONAL, INC.




3.25% Convertible Senior Notes Due 2025




	 	 	 
	 CUSIP: 127914AA7

 ISSUE DATE: March 30, 2005

No. R-1
	 	Principal Amount: $300,000,000






     CAL DIVE INTERNATIONAL, INC., a Minnesota corporation, promises to pay to Cede & Co. or
registered assigns, the principal amount of Three Hundred Million Dollars, on December 15, 2025.



     Interest Rate: 3.25% per year.



     Interest Payment Dates: June 15 and December 15 of each year, commencing June 15, 2005.



     Interest Record Date: June 1 and December 1 of each year.



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




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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



	 	 	 	 	 	 	 
	Dated: [          ], 2005	 	CAL DIVE INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Name:	 	 	 	 
	

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Name:	 	 	 	 
	

	 	Title:	 	 	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.




By                                                             

Authorized Officer




Dated: [          ], 2005




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[FORM OF REVERSE OF GLOBAL SECURITY]




3.25% Convertible Senior Notes Due 2025




     This Security is one of a duly authorized issue of 3.25% Convertible Senior Notes Due 2025
(the “Securities”) of Cal Dive International, Inc., a Minnesota corporation (including any
successor corporation under the Indenture hereinafter referred to, the “Company”), issued under an
Indenture, dated as of March 30, 2005 (the “Indenture”), between the Company and JPMorgan Chase
Bank, National Association, as trustee (the “Trustee”). The terms of the Security include those
stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act
of 1939, as amended (“TIA”), and those set forth in this Security. This Security is subject to all
such terms, and Holders are referred to the Indenture and the TIA for a statement of all such
terms. To the extent permitted by applicable law, in the event of any inconsistency between the
terms of this Security and the terms of the Indenture, the terms of the Indenture shall control.
Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture
unless otherwise indicated.



1. Interest.




     The Securities shall bear interest on the principal amount thereof at a rate of 3.25% per
year. The Company shall pay Contingent Interest, if any, as set forth in the Indenture and in
Section 3 hereof. The Company shall also pay Additional Amounts, if any, as set forth in Section
4.07 of the Indenture and the Registration Rights Agreement.



     Interest shall be payable semi-annually in arrears on each Interest Payment Date to Holders at
the close of business on the preceding Interest Record Date. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30 day months.



     The Company shall pay Interest to the Securityholder of record on the Interest Record Date
even if the Company elects to redeem or Securityholders elect to require the Company to repurchase,
the Securities on a date that is after an Interest Record Date but on or prior to the corresponding
Interest Payment Date. In that instance, the Company shall pay accrued and unpaid Interest on the
Securities being redeemed to, but not including, the Redemption Date, the Repurchase Date or the
Fundamental Change Repurchase Date, as the case may be, to the Securityholder of record on the
Interest Record Date.



     If the principal amount of any Security, or any accrued and unpaid Interest, Contingent
Interest, if any, or Additional Amounts, if any, are not paid when due (whether upon acceleration
pursuant to Section 6.02 of the Indenture, upon the date set for payment of the Redemption Price
pursuant to Section 5 hereof, upon the date set for payment of the Repurchase Price or Fundamental



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Change Repurchase Price pursuant to Section 6 hereof, upon the Stated Maturity of the
Securities, upon the Interest Payment Dates or upon the Additional Amounts Payment Dates as defined
in the Registration Rights Agreement), then in each such case the overdue amount shall, to the
extent permitted by law, bear cash interest at the rate of 3.25% per annum, compounded
semiannually, which interest shall accrue from the date such overdue amount was originally due to
the date payment of such amount, including interest thereon, has been made or duly provided for.
All such interest shall be payable in cash on demand but if not so demanded shall be paid quarterly
to the Holders on the last day of each quarter.




2. Method of Payment.




     Except as provided below, the Company shall pay Interest, including Contingent Interest, if
any, and Additional Amounts, if any, on (i) Global Securities, to DTC in immediately available
funds, (ii) any Certificated Security having an aggregate principal amount of $2,000,000 or less,
by check mailed to the Holder of such Security and (iii) any Certificated Security having an
aggregate principal amount of more than $2,000,000, by wire transfer in immediately available funds
if requested by the Holder of any such Security as least five business days prior to the relevant
Interest Payment Date.



     At Stated Maturity, the Company shall pay Interest on Certificated Securities at the Company’s
office or agency maintained for that purpose, which initially shall be the office or agency of the
Trustee located at 4 New York Plaza, 15th Floor, New York, NY 10004.



     Subject to the terms and conditions of the Indenture, the Company shall make payments in cash
in respect of Redemption Prices, Repurchase Prices, Fundamental Change Repurchase Prices and at
Stated Maturity to Holders who surrender Securities to a Paying Agent to collect such payments in
respect of the Securities. The Company shall pay cash amounts in money of the United States that at
the time of payment is legal tender for payment of public and private debts. However, the Company
may make such cash payments by check payable in such money.



3. Contingent Interest




     The Company shall pay Contingent Interest under the circumstances and in the amounts described
in Article 11 of the Indenture. Such Contingent Interest, if any, shall be payable 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 Securities that are submitted for conversion, as
payments of Interest.



4. Indenture.




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     The Securities are general unsecured obligations of the Company limited to $300,000,000
aggregate principal amount. The Indenture does not limit other indebtedness of the Company,
secured or unsecured.



5. Redemption at the Option of the Company.




     No sinking fund is provided for the Securities. The Securities are redeemable for cash at the
option of the Company, in whole or in part, at any time or from time to time on or after December
20, 2012 upon not less than 30 nor more than 60 days’ notice by mail for a redemption price (the
“Redemption Price”) equal to the principal amount of those Securities plus accrued and unpaid
Interest, accrued and unpaid Contingent Interest, if any, and Additional Amounts, if any, on those
Securities up to, but not including, the Redemption Date.



     In no event shall any Security be redeemable before December 20, 2012.



6. Purchase By the Company at the Option of the Holder.




     Subject to the terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, all or any portion of the Securities held by such Holder
on December 20, 2012, December 15, 2015 and December 15, 2020 in integral multiples of $1,000 at a
Repurchase Price equal to 100% of the principal amount of those Securities plus accrued and unpaid
Interest, accrued and unpaid Contingent Interest, if any, and Additional Amounts, if any, on those
Securities up to, but not including, the Repurchase Date. To exercise such right, a Holder shall
deliver to the Paying Agent a Repurchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20 Business Days prior to
such Repurchase Date until the close of business on the Repurchase Date, and shall deliver the
Securities to the Paying Agent as set forth in the Indenture.



     At the option of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder after the
occurrence of a Fundamental Change for a Fundamental Change Repurchase Price equal to the principal
amount of those Securities plus accrued and unpaid Interest, accrued and unpaid Contingent
Interest, if any, and Additional Amounts, if any, on those Securities up to, but not including, the
Fundamental Change Repurchase Date.



     Holders have the right to withdraw any Repurchase Notice or Fundamental Change Repurchase
Notice, as the case may be, by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.



     If cash sufficient to pay the Repurchase Price or Fundamental Change Repurchase Price, as the
case may be, of all Securities or portions thereof to be purchased as of the Repurchase Date or the
Fundamental Change Repurchase



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Date, as the case may be, is deposited with the Paying Agent, Interest, Contingent Interest,
if any, and Additional Amounts, if any, shall cease to accrue on such Securities (or portions
thereof) on and following such Repurchase Date or Fundamental Change Repurchase Date, and the
Holder thereof shall have no other rights as such other than the right to receive the Repurchase
Price or Fundamental Change Repurchase Price upon surrender of such Security.




7. Notice of Redemption.




     Notice of redemption pursuant to Section 5 of this Security shall be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at
the Holder’s registered address. If money sufficient to pay the Redemption Price of all Securities
(or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent
prior to or on the Redemption Date, immediately on and after such Redemption Date Interest,
Contingent Interest, if any, and Additional Amounts, if any, shall cease to accrue on such
Securities or portions thereof. Securities in denominations larger than $1,000 principal amount may
be redeemed in part but only in integral multiples of $1,000 of principal amount.



8. Conversion.




     Subject to the occurrence of certain events and in compliance with the provisions of the
Indenture (including, without limitation, the conditions to conversion of this Security set forth
in Section 10.01 thereof), a Holder is entitled, at such Holder’s option, to convert the Holder’s
Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple of
$1,000), into cash or a combination of cash and fully paid and nonassessable shares of Common Stock
at the Conversion Rate in effect at the time of conversion.



     The Company shall notify Holders of any event triggering the right to convert the Securities
as specified in the Indenture.



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



     The initial Conversion Rate is 15.5600 shares of Common Stock per $1,000 principal amount,
subject to adjustment in certain events described in the Indenture. The Conversion Rate shall not
be adjusted for any accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any or
accrued and unpaid Additional Amounts, if any. Upon conversion, no payment shall be made by the
Company with respect to accrued and unpaid Interest and accrued and unpaid Contingent Interest, if
any. Instead, such amount shall be deemed paid by the



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cash and shares of Common Stock, if any, delivered upon conversion of any Security. A Holder
shall receive, however, accrued and unpaid Additional Amounts, if any. In addition, no payment or
adjustment shall be made in respect of dividends on the Common Stock, except as set forth in the
Indenture.




     In addition, following certain corporate transactions as set forth in Section 10.01(b) of the
Indenture that occur prior to December 20, 2012 and that also constitute a Change of Control, a
Holder who elects to convert its Securities in connection with such corporate transaction shall be
entitled to receive Additional Shares of Common Stock upon conversion. Notwithstanding the
previous sentence, in the case of a Public Acquirer Change of Control, the Company may, in lieu of
increasing the Conversion Rate by Additional Shares, elect to adjust the Conversion Rate and
Conversion Obligation such that from and after the effective date of such Public Acquirer Change of
Control, Holders of the Securities shall be entitled to convert their Securities into a number of
shares of Public Acquirer Common Stock, as determined pursuant to Section 10.01(d) of the
Indenture.



     To surrender a Security for conversion, a Holder must (1) complete and manually sign the
Conversion Notice attached hereto (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent,
(3) furnish appropriate endorsements and transfer documents, (4) if required by Section 10.02(g) of
the Indenture, pay Interest and Contingent Interest and (5) pay any transfer or similar tax, if
required.



     No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead
of any fractional share of Common Stock that would otherwise be issued upon conversion of such
Security, the Company shall pay a cash adjustment as provided in the Indenture.



     In the event that the Company (i) is a party to a consolidation, merger, binding share
exchange or combination, (ii) reclassifies the Common Stock, (iii) sells or conveys all or
substantially all of its property or assets to any Person, and as a result of any such event the
Holders of Common Stock would be entitled to receive Exchange Property for their Common Stock, upon
conversion of the Securities after the effective date of such event, the Conversion Obligation and
the Conversion Settlement Distribution shall be based on the applicable Conversion Rate and the
Exchange Property, in each case in accordance with the Indenture.



9. Paying Agent, Conversion Agent and Registrar.




     Initially, the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The Company
may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than
notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act
as Paying Agent, Conversion Agent or Registrar.



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10. Denominations; Transfer; Exchange.




     The Securities are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed or any Securities in respect of which a Repurchase Notice or
Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be purchased).



11. Persons Deemed Owners.




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



12. Unclaimed Money or Securities.




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



13. Amendment; Waiver.




     Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities
may be amended with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Securities and (ii) certain Events of Defaults may be waived
with the written consent of the Holders of a majority in aggregate principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities (i) to add guarantees with respect to the Securities, (ii) to remove any guarantee added
to the Securities pursuant to clause (i), unless such guarantee is required pursuant to Section
5.01(a) of the Indenture, (iii) to conform as necessary, the Indenture and this Security to the
“Description of Notes” as set forth in the Offering Memorandum, (iv) to add to the covenants of the
Company for the benefit of the Holders of Securities, (v) to surrender any right or power conferred
upon the Company in the Indenture, (vi) to provide for conversion rights of Holders of Securities
if any reclassification or change of the Company’s



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Common Stock or any consolidation, merger or sale of all or substantially all of the Company’s
assets occurs, (vii) to provide for the assumption by a successor Person of the Company’s
obligations to the Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 of the Indenture, (viii) to provide for uncertificated
Securities in addition to or in place of Certificated Securities; provided, however, that
uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that uncertificated Securities are described in Section 163(f)(2)(B) of the
Code, (ix) to change the Conversion Rate in accordance with the Indenture; provided, however, that
any increase in the Conversion Rate other than pursuant to Article 10 shall not adversely affect
the interests of the Holders of Securities (after taking into account U.S. federal income tax and
other consequences of such increase), (x) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, (xi) to make any changes or
modifications necessary in connection with the registration of the Securities under the Securities
Act as contemplated by the Registration Rights Agreement; provided, however, that any such change
or modification does not, in the good faith opinion of the Board of Directors of the Company (as
evidenced by a Board Resolution) and the Trustee, adversely affect the interests of the Holders of
Securities in any material respect, (xii) to cure any ambiguity or to correct or supplement any
provision in the Indenture which may be inconsistent with any other provision in the Indenture or
which is otherwise defective; provided, however, that any such change or modification does not, in
the good faith opinion of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, adversely affect the interests of the Holders of Securities in any
material respect, (xiii) to add or modify any other provisions of the Indenture with respect to
matters or questions arising under the Indenture which the Company and the Trustee may deem
necessary or desirable and which, in the good faith opinion of the Board of Directors of the
Company (as evidenced by a Board Resolution) and the Trustee, shall not adversely affect the
interests of the Holders of Securities in any material respect, (xiv) to establish the form of
Securities if issued in definitive form and (xv) to evidence and provide for the acceptance of the
appointment under the Indenture of a successor Trustee.




14. Defaults and Remedies.




     If any Event of Default with respect to Securities shall occur and be continuing, the
principal amount of the Securities and any accrued and unpaid Interest, accrued and unpaid
Contingent Interest, if any, and accrued and unpaid Additional Amounts, if any, on all the
Securities may be declared due and payable in the manner and with the effect provided in the
Indenture.



15. Trustee Dealings with the Company.




     Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to



A-11









 





it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.




16. Calculations in Respect of Securities.




     The Company or its agents shall be responsible for making all calculations called for under
the Securities including, but not limited to, determination of the market prices for the Securities
and of the Common Stock and the amounts of Contingent Interest and Additional Amounts, if any,
accrued on the Securities. Any calculations made in good faith and without manifest error shall be
final and binding on Holders of the Securities. The Company or its agents shall be required to
deliver to the Trustee a schedule of its calculations and the Trustee shall be entitled to
conclusively rely upon the accuracy of such calculations without independent verification.



17. U.S. Federal Income Tax Treatment.




     For purposes of Sections 1272, 1273 and 1275 of the Code, this Security is being issued with
Tax Original Issue Discount and the issue date of this Security is March 30, 2005. In addition,
this Security is subject to the Treasury regulations governing contingent payment debt instruments.
For purposes of Sections 1272, 1273 and 1275 of the Code, the comparable yield of this Security is
7.045%, compounded semi-annually (which shall be treated as the yield to maturity for U.S. federal
income tax purposes).



     The Company and each Holder, by acquiring a beneficial interest in a Security, agree (i) to
treat the Security as indebtedness for U.S. federal income tax purposes that is subject to the
Treasury regulations governing contingent payment debt instruments (the “contingent debt
regulations”), (ii) that each Holder shall be bound by the Company’s application of the contingent
debt regulations to the Security, including the Company’s determination of the “comparable yield”
and “projected payment schedule” within the meaning of the contingent debt regulations, and (iii)
that the Company and each Holder will not take any position on any U.S. federal income tax return
that is inconsistent with (i) or (ii), unless required by applicable law. The Company agrees to
provide promptly to the Holder of this Security, upon written request, the issue price, amount of
Tax 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: Cal Dive
International, Inc., 400 N. Sam Houston Parkway East, Suite 400, Houston, TX 77060, Attention:
General Counsel.



18. No Recourse Against Others.




     A director, officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of



A-12









 





such obligations or their creation. By accepting a Security, each Securityholder waives and
releases all such liability. The waiver and release are part of the consideration for the issue of
the Securities.




19. Authentication.




     This Security shall not be valid until an authorize signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.



20. Abbreviations.




     Customary abbreviations may be used in the name of a Securityholder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).



21. Governing Law.




     THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.



22. Copy of Indenture.




     The Company shall furnish to any Securityholder upon written request and without charge a copy
of the Indenture which has in it the text of this Security in larger type. Requests may be made to:


Cal Dive International, Inc.

400 N. Sam Houston Parkway East

Suite 400, Houston, TX 77060

Attn: General Counsel

Facsimile No.: 281-618-0505



23. Registration Rights.




     The Holders of the Securities are entitled to the benefits of a Registration Rights Agreement,
dated March 30, 2005, between the Company and Banc of America Securities LLC, as representative of
the initial purchasers, including the right to receive Additional Amounts upon a Registration
Default (as defined in such agreement). The Company shall make payments of Additional Amounts on
the Additional Amounts Payment Dates (as defined in the Registration Rights Agreement), but
otherwise in accordance with the provisions set forth herein for the payment of Interest.




A-13










 









	 	 	 	 	 	 	 
	ASSIGNMENT FORM	 	 	 	 	 	CONVERSION NOTICE
	 	 	 	 	 	 	 
	To assign this Security, fill in the
	 	 	 	 	 	To convert this Security, check
	form below:
	 	 	 	 	 	the box o
	 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	I or we
assign and transfer this Security to

                                                                                


                                        

	 	 	 	 	 	To convert only part of this Security, state the principal
amount to be

 converted (which must be $1,000 or an integral multiple of $1,000):
	(Insert assignee’s soc. sec. or tax ID no.)

	 	 	 	 	 	If you want the stock certificate
made out in another
	                                                                                
	 	 	 	 	 	 person’s name fill in the form below:
	                                                                                
	 	 	 	 	 	                                                                                
	                                                                                
	 	 	 	 	 	                                                                                
	(Print or
type assignee’s name, address and zip code)
	 	 	 	 	 	(Insert the other person’s
soc. sec. tax ID no.)


                                                                                
	and irrevocably appoint


	 	 	 	 	 	                                                                                
	                    
agent to transfer this Security on the books of the
	 	 	 	 	 	                                                                                
	Company. The
agent may substitute another to act for him.
	 	 	 	 	 	                                                                                
	 
	 	 	 	 	 	                                                                                
	
	 	 	 	 	 	(Print or type other person’s name, address and zip code)








Date:                      Your Signature:                                                             




                                                                                                                        




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




Signature Guaranteed




                                                            




Participant in a Recognized Signature




Guarantee Medallion Program




By:                                                             

     Authorized Signatory




A- 14









 








SCHEDULE OF INCREASES AND DECREASES

OF GLOBAL SECURITY




Initial Principal Amount of Global Security: Three Hundred Million Dollars ($300,000,000).




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount of	 	 	 	 	 	 
	 	 	 	 	Amount of Increase	 	 	 	Amount of Decrease	 	 	 	Global Security	 	 	 	Notation by	 	 
	 	 	 	 	in Principal Amount	 	 	 	in Principal Amount	 	 	 	After Increase or	 	 	 	Registrar or	 	 
	 	Date	 	 	of Global Security	 	 	 	of Global Security	 	 	 	Decrease	 	 	 	Security Custodian	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





A- 15









 






EXHIBIT B




[FORM OF FACE OF CERTIFICATED SECURITY]




     THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT OF 1933”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:




	 	(1)  	REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT OF 1933;






	 	(2)  	AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION
DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 3.25%
CONVERTIBLE SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO CAL DIVE INTERNATIONAL, INC. OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND






	 	(3)  	AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.





     The foregoing legend may be removed from this Security upon the earlier of the Resale
Restriction Termination Date or the transfer of the Securities pursuant to clause 2(C) or 2(D)
above.



     FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”), THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE



B- 1









 





DISCOUNT. THE ISSUE PRICE OF THIS SECURITY IS $1000 PER $1000 OF PRINCIPAL AMOUNT, AND THE
ISSUE DATE OF THIS SECURITY IS MARCH 30, 2005. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED
STATES FEDERAL INCOME TAX REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES
OF SECTIONS 1272, 1273 AND 1275 OF THE CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 7.045%,
COMPOUNDED SEMI-ANNUALLY.




     THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST,
THE ISSUE PRICE, AMOUNT OF TAX 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: CAL DIVE INTERNATIONAL, INC., 400 N. SAM HOUSTON PARKWAY EAST, SUITE 400,
HOUSTON, TX 77060, ATTENTION: GENERAL COUNSEL.



     Pursuant to Section 2.14 of the Indenture, the foregoing legend is required for U.S. federal
income tax purposes.



B- 2









 





CAL DIVE INTERNATIONAL, INC.




3.25% Convertible Senior Notes Due 2025




	 	 	 
	CUSIP: 127914AA7
	 	 
	ISSUE DATE: March 30, 2005

	 	Principal Amount: $[          ]
	No. R-1
	 	 






     CAL DIVE INTERNATIONAL, INC., a Minnesota corporation, promises to pay to                      or
registered assigns, the principal amount of                                         , on December 15, 2025.



     Interest Rate: 3.25% per year.



     Interest Payment Dates: December 15 and June 15 of each year, commencing June 15, 2005.



     Interest Record Date: December 1 and June 1 of each year.



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



B- 3









 





     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



	 	 	 	 	 	 	 
	Dated: [                    ]	 	CAL DIVE INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Title:	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	CAL DIVE INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	 	 	 
	

	 	 	 	 	 	 
	

	 	Title:	 	 	 	 
	

	 	 	 	 	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION




                                                            ,

JPMorgan Chase Bank, National Association

as Trustee, certifies that this is one

of the Securities referred to in the

within-mentioned Indenture.



By                                         

      Authorized Signatory




Dated: [                    ]




B- 4









 








[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO

EXHIBIT A]




B- 5









 








EXHIBIT C




CAL DIVE INTERNATIONAL, INC.




3.25% Convertible Senior Notes Due 2025




Transfer Certificate




     In connection with any transfer of any of the Securities within the period prior to the
expiration of the holding period applicable to the sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the
undersigned registered owner of this Security hereby certifies with respect to $                     
principal amount of the above-captioned Securities presented or surrendered on the date hereof (the
“Surrendered Securities”) for registration of transfer, or for exchange or conversion where the
securities issuable upon such exchange or conversion are to be registered in a name other than that
of the undersigned registered owner (each such transaction being a “transfer”), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:




	 	   	[_] A transfer of the Surrendered Securities is made to the Company or any
subsidiaries; or






	 	   	[_] The transfer of the Surrendered Securities is pursuant to an effective
registration statement under the Securities Act; or






	 	   	[_] The transfer of the Surrendered Securities complies with Rule 144A under
the Securities Act; or






	 	   	[_] The transfer of the Surrendered Securities is pursuant to Rule 144 under
the Securities Act and each of the conditions set forth in such rule have been met;





and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge,
such Securities are not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).




C- 1









 









	 	   	[_] The transferee is an Affiliate of the Company.





	 	 	 	 	 
	DATE:

	 	

Signature(s)
	 	 






     (If the registered owner is a corporation, partnership or fiduciary, the title of the person
signing on behalf of such registered owner must be stated.)



Signature Guaranteed







Participant in a Recognized Signature




Name:




Address:




Tax I.D.:





C- 2









 






EXHIBIT D




CAL DIVE INTERNATIONAL, INC.

NOTICE OF REDEMPTION




[DATE]




To the Holders of the 3.25% Convertible Senior Notes Due 2025

issued by Cal Dive International, Inc.:




     Cal Dive International, Inc. (the “Issuer”) by this written notice hereby exercises, pursuant
to Section 3.01 of that certain Indenture (the “Indenture”), dated as of March 30, 2005, between
the Issuer and JPMorgan Chase Bank, National Association, its right to redeem $[___] of its
3.25% Convertible Senior Notes Due 2025 (the “Securities”). All capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.



1. Redemption Date: [_______ _, ____]




2. Redemption Price: $[______]




3. Conversion Rate: Each $1,000 principal amount of the Securities is convertible at your option
into [insert number of shares] shares of the Issuer’s common stock, no par value (the “Common
Stock”), subject to adjustment, during the period described below.




4. Paying Agent and Conversion Agent: [NAME] [ADDRESS]




5. The Securities called for redemption may be converted at your option at any time from the date
of this Notice of Redemption until 5:00 p.m. on the Business Day immediately prior to the
Redemption Date set forth above.




6. The Securities called for redemption and not converted at your election prior to 5:00 p.m. on
the Business Day immediately prior to Redemption Date set forth above shall be redeemed on the
business day immediately following such Redemption Date.




7. If you elect to convert your Securities, you must satisfy the requirements for conversion set
forth in your Securities.




8. Your Securities called for redemption must be surrendered by you (by effecting book entry
transfer of the Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to [Name of Paying Agent] at [insert address] in order for you to
collect the Redemption Price.




D-1









 








9. [The Securities bearing the following Certificate Number(s) in the principal amount set forth
below opposite such Certificate Number(s) are being redeemed:




	 	 	 
	Certificate Number(s)

	 	Principal Amount]






10. Unless the Company defaults in making the payment of the Redemption Price owed to you,
Interest, Contingent Interest, if any, and Additional Amounts, if any, on your Securities called
for redemption shall cease to accrue on and after the Redemption Date.





11. Cusip Number: o



	 	 	 	 	 
	 	CAL DIVE INTERNATIONAL, INC.

 	 
	 	 	 
	 	 	 
	 	 	 




D-2









 






	 	 	 	 	 



EXHIBIT E




CAL DIVE INTERNATIONAL, INC.




NOTICE OF REPURCHASE




[DATE]




To the Beneficial Owners of the 3.25% Convertible Senior Notes Due 2025

(the “Securities”) issued by Cal Dive International, Inc.:





     Cal Dive International, Inc. (the “Issuer”) by this written notice hereby notifies you,
pursuant to Section 3.07 of that certain Indenture (the “Indenture”), dated as of March 30, 2005,
between the Issuer and JPMorgan Chase Bank, National Association, that you may request the Issuer
to repurchase your Securities by delivery of a Repurchase Notice. Included herewith is the form of
Repurchase Notice to be completed by you if you wish to have your Securities repurchased by the
Issuer. All capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture.



1. Repurchase Date: o




2. Repurchase Price: o




3. Conversion Rate: To the extent described in Item 5 below, each $1,000 principal amount of the
Securities is convertible into [insert number of shares] shares of the Issuer’s common stock, no
par value (the “Common Stock”), subject to adjustment.




4. Paying Agent and Conversion Agent: [NAME] [ADDRESS]




5. The Securities as to which you have delivered a Repurchase Notice to the Paying Agent may be
converted if they are otherwise convertible pursuant to Article 10 of the Indenture and the terms
of the Securities only if you withdraw such Repurchase Notice pursuant to the terms of the
Indenture. You may be entitled to have your Securities converted into a combination of cash and
shares of the Issuer’s common stock:





(i) during any fiscal quarter commencing after March 31, 2005 (and only during such
quarter, if the last reported sale price (as defined in the Indenture) of the Issuer’s
common stock for at least 20 trading days in the 30 trading-day period ending on the last
trading day of the preceding fiscal quarter was 120% or more of the conversion price (as
defined in the Indenture) on such trading day;




(ii) if the Issuer has called the Securities for redemption; or



E-1









 






(iii) upon the occurrence of certain specified corporate transactions described in the
Indenture.



6. The Securities as to which you have delivered a Repurchase Notice must be surrendered by you (by
effecting book entry transfer of the Securities or delivering Certificated Securities, together
with necessary endorsements, as the case may be) to [Name of Paying Agent] at [insert address] in
order for you to collect the Repurchase Price.




7. The Repurchase Price for the Securities as to which you have delivered a Repurchase Notice and
not withdrawn such Repurchase Notice shall be paid promptly following the later of the business day
immediately following such Repurchase Date and the date you deliver such Securities to [Name of
Paying Agent].




8. In order to exercise your option to have the Issuer repurchase your Securities, you must deliver
the Repurchase Notice, duly completed by you with the information required by such Repurchase
Notice (as specified in Section 3.07 of the Indenture) and deliver such Repurchase Notice to the
Paying Agent at any time from 9:00 a.m. on [insert day that is 20 Business Days prior to Repurchase
Date] until 5:00 p.m. on the [insert day that is the Repurchase Date].




9. In order to withdraw any Repurchase Notice previously delivered by you to the Paying Agent, you
must deliver to the Paying Agent, by 5:00 p.m. on [insert day that is the the Repurchase Date], a
written notice of withdrawal specifying (i) the certificate number, if any, of the Securities in
respect of which such notice of withdrawal is being submitted, (ii) the principal amount of the
Securities in respect of which such notice of withdrawal is being submitted, and (iii) if you are
not withdrawing your Repurchase Notice for all of your Securities, the principal amount of the
Securities which still remain subject to the original Repurchase Notice.




10. Unless the Issuer defaults in making the payment of the Repurchase Price owed to you, Interest,
Contingent Interest, if any, and Additional Amounts, if any, on your Securities as to which you
have delivered a Repurchase Notice shall cease to accrue on and after the Repurchase Date.




11. Cusip Number: o




CAL DIVE INTERNATIONAL, INC.




E-2









 








EXHIBIT F




CAL DIVE INTERNATIONAL, INC.

NOTICE OF OCCURRENCE

OF FUNDAMENTAL CHANGE




[DATE]




To the Holders of the 3.25% Convertible Senior Notes Due 2025

(the “Securities”) issued by Cal Dive International, Inc.:




     Cal Dive International, Inc. (the “Issuer”) by this written notice hereby notifies you,
pursuant to Section 3.08 of that certain Indenture (the “Indenture”), dated as of March 30, 2005,
between the Issuer and JPMorgan Chase Bank, National Association, that a Fundamental Change (as
such term and other capitalized terms used herein and not otherwise defined herein is defined in
the Indenture) as described below has occurred. Included herewith is the form of Fundamental Change
Repurchase Notice to be completed by you if you wish to have your Securities repurchased by the
Issuer.



1. Fundamental Change: [Insert brief description of the Fundamental Change and the date of the
occurrence thereof].




2. Date by which Fundamental Change Repurchase Notice must be delivered by you to Paying Agent in
order to have your Securities repurchased:




3. Fundamental Change Repurchase Date:




4. Fundamental Change Repurchase Price:




5. Paying Agent and Conversion Agent: [NAME] [ADDRESS]




6. Conversion Rate: To the extent described in Item 7 below, each $1,000 principal amount of the
Securities is convertible into [insert number of shares] shares of the Issuer’s common stock, no
par value (the “Common Stock”), subject to adjustment.




7. The Securities as to which you have delivered a Fundamental Change Repurchase Notice to the
Paying Agent may be converted if they are otherwise convertible pursuant to Article 10 of the
Indenture and the terms of the Securities only if you withdraw such Fundamental Change Repurchase
Notice pursuant to the terms of the Indenture. You may be entitled to have your Securities
converted into shares of the Issuer’s common stock (or, at the option of the Issuer, cash or a
combination of cash and shares of the Issuer’s common stock):





     (i) during any fiscal quarter commencing after March 31, 2005 (and only during such
fiscal quarter), if the last reported sale price (as defined in the Indenture) of the
Issuer’s common stock for at least 20 trading days



 









 






in the 30 trading-day period ending on the last trading day of the preceding fiscal
quarter was 120% or more of the conversion price (as defined in the Indenture) on such
last trading day;




     (ii) if the Issuer has called the Securities for redemption; or




     (iii) upon the occurrence of certain specified corporate transactions described in
the Indenture.



8. The Securities as to which you have delivered a Fundamental Change Repurchase Notice must be
surrendered by you (by effecting book entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to [Name of Paying Agent] at
[insert address] in order for you to collect the Fundamental Change Repurchase Price.




9. The Fundamental Change Repurchase Price for the Securities as to which you have delivered a
Fundamental Change Repurchase Notice and not withdrawn such Notice shall be paid promptly following
the later of the Business Day immediately following such Fundamental Change Repurchase Date and the
date you deliver such Securities to [Name of Paying Agent].




10. In order to have the Issuer repurchase your Securities, you must deliver the Fundamental Change
Repurchase Notice, duly completed by you with the information required by such Fundamental Change
Repurchase Notice (as specified in Section 3.08 of the Indenture) and deliver such Fundamental
Change Repurchase Notice to the Paying Agent at any time from 9:00 a.m. on the date of the
occurrence of the Change of Control until 5:00 p.m. on the Fundamental Change Repurchase Date.




11. In order to withdraw any Fundamental Change Repurchase Notice previously delivered by you to
the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. on the Fundamental Change
Repurchase Date, a written notice of withdrawal specifying (i) the certificate number, if any, of
the Securities in respect of which such notice of withdrawal is being submitted, (ii) the principal
amount of the Securities in respect of which such notice of withdrawal is being submitted, and
(iii) if you are not withdrawing your Fundamental Change Repurchase Notice for all of your
Securities, the principal amount of the Securities which still remain subject to the original
Fundamental Change Repurchase Notice.




12. Unless the Issuer defaults in making the payment of the Fundamental Change Repurchase Price
owed to you, Interest, Contingent Interest, if any, and Additional Amounts, if any, on your
Securities as to which you have delivered a Fundamental Change Repurchase Notice shall cease to
accrue on and after the Fundamental Change Repurchase Date.




F-2









 








13. Cusip Number: 127914AA7



	 	 	 	 	 
	 	CAL DIVE INTERNATIONAL, INC.

 	 
	 	 	 
	 	 	 
	 	 	 




F-3









 






	 	 	 	 	 



SCHEDULE I




The following table sets forth the Stock Prices and the number of Additional Shares per $1,000
principal amount of Securities.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price	 
	Effective Date	 	$45.00	 	 	$45.10	 	 	$50.00	 	 	$55.00	 	 	$61.00	 	 	$67.00	 	 	$74.00	 	 	$82.00	 	 	$91.00	 	 	$101.00	 	 	$112.00	 	 	$124.00	 	 	$135.00	 	 	$150.00	 
	December 15, 2005
	 	 	0.00	 	 	 	6.61	 	 	 	5.63	 	 	 	4.71	 	 	 	3.88	 	 	 	3.25	 	 	 	2.71	 	 	 	2.24	 	 	 	1.85	 	 	 	1.53	 	 	 	1.28	 	 	 	1.07	 	 	 	0.92	 	 	 	0.76	 
	December 15, 2006
	 	 	0.00	 	 	 	6.61	 	 	 	5.43	 	 	 	4.50	 	 	 	3.66	 	 	 	3.04	 	 	 	2.48	 	 	 	2.02	 	 	 	1.65	 	 	 	1.35	 	 	 	1.10	 	 	 	0.92	 	 	 	0.79	 	 	 	0.65	 
	December 15, 2007
	 	 	0.00	 	 	 	6.52	 	 	 	5.24	 	 	 	4.26	 	 	 	3.40	 	 	 	2.75	 	 	 	2.21	 	 	 	1.76	 	 	 	1.41	 	 	 	1.13	 	 	 	0.92	 	 	 	0.76	 	 	 	0.65	 	 	 	0.54	 
	December 15, 2008
	 	 	0.00	 	 	 	6.39	 	 	 	5.01	 	 	 	3.98	 	 	 	3.08	 	 	 	2.43	 	 	 	1.89	 	 	 	1.46	 	 	 	1.13	 	 	 	0.89	 	 	 	0.71	 	 	 	0.58	 	 	 	0.49	 	 	 	0.40	 
	December 15, 2009
	 	 	0.00	 	 	 	6.33	 	 	 	4.85	 	 	 	3.75	 	 	 	2.77	 	 	 	2.05	 	 	 	1.53	 	 	 	1.10	 	 	 	0.80	 	 	 	0.60	 	 	 	0.47	 	 	 	0.37	 	 	 	0.32	 	 	 	0.26	 
	December 15, 2010
	 	 	0.00	 	 	 	6.29	 	 	 	4.64	 	 	 	3.40	 	 	 	2.37	 	 	 	1.64	 	 	 	1.09	 	 	 	0.70	 	 	 	0.44	 	 	 	0.28	 	 	 	0.20	 	 	 	0.16	 	 	 	0.13	 	 	 	0.11	 
	December 15, 2011
	 	 	0.00	 	 	 	6.24	 	 	 	4.54	 	 	 	3.04	 	 	 	1.73	 	 	 	0.88	 	 	 	0.32	 	 	 	0.03	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	December 15, 2012
	 	 	0.00	 	 	 	6.04	 	 	 	4.40	 	 	 	2.99	 	 	 	1.65	 	 	 	0.87	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00