exv4w1



 





Exhibit 4.1 

Execution Versions




COOPER CAMERON CORPORATION




as Issuer










SUNTRUST BANK,




as Trustee










1.50% Convertible Senior Debentures due 2024










INDENTURE




Dated as of May 11, 2004










 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Incorporation by Reference of Trust Indenture Act
	 	 	9	 
	Section 1.3 Rules of Construction
	 	 	9	 
	Section 1.4 Acts of Holders
	 	 	9	 
	ARTICLE II 
	 	 	 	 
	THE SECURITIES 
	 	 	 	 
	Section 2.1 Form and Dating
	 	 	11	 
	Section 2.2 Execution and Authentication
	 	 	12	 
	Section 2.3 Registrar, Paying Agent, Conversion Agent and Bid Solicitation Agent
	 	 	13	 
	Section 2.4 Paying Agent to Hold Cash and Securities in Trust
	 	 	14	 
	Section 2.5 Securityholder Lists
	 	 	14	 
	Section 2.6 Transfer and Exchange
	 	 	15	 
	Section 2.7 Replacement Securities
	 	 	16	 
	Section 2.8 Outstanding Securities; Determinations of Holders’ Action
	 	 	16	 
	Section 2.9 Temporary Securities
	 	 	17	 
	Section 2.10 Cancellation
	 	 	17	 
	Section 2.11 Persons Deemed Owners
	 	 	18	 
	Section 2.12 Additional Transfer and Exchange Requirements
	 	 	18	 
	Section 2.13 CUSIP Numbers
	 	 	25	 
	Section 2.14 Ranking
	 	 	25	 
	ARTICLE III 
	 	 	 	 
	REDEMPTION 
	 	 	 	 
	Section 3.1 The Company’s Right to Redeem; Notice to Trustee
	 	 	26	 
	Section 3.2 Selection of Securities to Be Redeemed
	 	 	26	 
	Section 3.3 Notice of Redemption
	 	 	27	 
	Section 3.4 Effect of Notice of Redemption
	 	 	28	 
	Section 3.5 Deposit of Redemption Price
	 	 	28	 
	Section 3.6 Securities Redeemed in Part
	 	 	28	 
	Section 3.7 Repayment to the Company
	 	 	29	 
	ARTICLE IV 
	 	 	 	 
	REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS ON SPECIFIC DATES 
	 	 	 	 
	Section 4.1 Optional Put
	 	 	29	 
	Section 4.2 Manner of Payment of Repurchase Price
	 	 	31	 
	Section 4.3 Effect of Repurchase Notice
	 	 	31	 
	Section 4.4 Deposit of Repurchase Price
	 	 	32	 
	Section 4.5 Securities Repurchased in Part
	 	 	32	 
	Section 4.6 Covenant to Comply With Securities Laws Upon Repurchase of Securities
	 	 	32	 
	Section 4.7 Repayment to the Company
	 	 	33	 







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	ARTICLE V 
	 	 	 	 
	REPURCHASE AT THE OPTION OF HOLDERS UPON A REPURCHASE EVENT
	 	 	 	 
	Section 5.1 Repurchase Event Put
	 	 	33	 
	Section 5.2 Manner of Payment of Repurchase Event Repurchase Price
	 	 	37	 
	Section 5.3 Effect of Repurchase Event Repurchase Notice
	 	 	37	 
	Section 5.4 Deposit of Repurchase Event Repurchase Price
	 	 	37	 
	Section 5.5 Securities Repurchased in Part
	 	 	38	 
	Section 5.6 Covenant to Comply With Securities Laws Upon Repurchase of Securities
	 	 	38	 
	Section 5.7 Repayment to the Company
	 	 	38	 
	ARTICLE VI
	 	 	 	 
	COVENANTS
	 	 	 	 
	Section 6.1 Payment of Securities
	 	 	39	 
	Section 6.2 SEC and Other Reports to the Trustee
	 	 	40	 
	Section 6.3 Compliance Certificate
	 	 	40	 
	Section 6.4 Further Instruments and Acts
	 	 	40	 
	Section 6.5 Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent
	 	 	40	 
	Section 6.6 Delivery of Information Required Under Rule 144A
	 	 	41	 
	Section 6.7 Waiver of Stay, Extension or Usury Laws
	 	 	41	 
	Section 6.8 Statement by Officers as to Default
	 	 	42	 
	ARTICLE VII
	 	 	 	 
	SUCCESSOR CORPORATION
	 	 	 	 
	Section 7.1 When Company May Merge or Transfer Assets
	 	 	42	 
	Section 7.2 Successor Corporation Substituted
	 	 	42	 
	ARTICLE VIII
	 	 	 	 
	DEFAULTS AND REMEDIES
	 	 	 	 
	Section 8.1 Events of Default
	 	 	43	 
	Section 8.2 Acceleration
	 	 	44	 
	Section 8.3 Other Remedies
	 	 	45	 
	Section 8.4 Waiver of Past Defaults
	 	 	45	 
	Section 8.5 Control by Majority
	 	 	45	 
	Section 8.6 Limitation on Suits
	 	 	46	 
	Section 8.7 Rights of Holders to Receive Payment or to Convert
	 	 	46	 
	Section 8.8 Collection Suit by Trustee
	 	 	46	 
	Section 8.9 Trustee May File Proofs of Claim
	 	 	47	 
	Section 8.10 Priorities
	 	 	47	 
	Section 8.11 Undertaking for Costs
	 	 	48	 
	Section 8.12 Restoration of Rights and Remedies
	 	 	48	 
	ARTICLE IX
	 	 	 	 
	TRUSTEE
	 	 	 	 
	Section 9.1 Duties of Trustee
	 	 	48	 
	Section 9.2 Rights of Trustee
	 	 	49	 
	Section 9.3 Individual Rights of Trustee
	 	 	51	 







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	Section 9.4 Trustee’s Disclaimer
	 	 	51	 
	Section 9.5 Notice of Defaults
	 	 	51	 
	Section 9.6 Reports by Trustee to Holders
	 	 	51	 
	Section 9.7 Compensation and Indemnity
	 	 	52	 
	Section 9.8 Replacement of Trustee
	 	 	53	 
	Section 9.9 Successor Trustee by Merger
	 	 	54	 
	Section 9.10 Eligibility; Disqualification
	 	 	54	 
	Section 9.11 Preferential Collection of Claims Against Company
	 	 	54	 
	ARTICLE X
	 	 	 	 
	DISCHARGE OF INDENTURE
	 	 	 	 
	Section 10.1 Discharge of Liability on Securities
	 	 	54	 
	Section 10.2 Repayment to the Company
	 	 	54	 
	ARTICLE XI
	 	 	 	 
	AMENDMENTS
	 	 	 	 
	Section 11.1 Without Consent of Holders
	 	 	55	 
	Section 11.2 With Consent of Holders
	 	 	56	 
	Section 11.3 Compliance with Trust Indenture Act
	 	 	57	 
	Section 11.4 Revocation and Effect of Consents, Waivers and Actions
	 	 	58	 
	Section 11.5 Notation on or Exchange of Securities
	 	 	58	 
	Section 11.6 Trustee to Sign Supplemental Indentures
	 	 	58	 
	Section 11.7 Effect of Supplemental Indentures
	 	 	58	 
	ARTICLE XII
	 	 	 	 
	CONVERSION
	 	 	 	 
	Section 12.1 Conversion Privilege
	 	 	58	 
	Section 12.2 Conversion Procedure; Conversion Rate; Fractional Shares; Payment in Cash in lieu of Common Stock
	 	 	61	 
	Section 12.3 Adjustment of Conversion Rate
	 	 	65	 
	Section 12.4 Consolidation or Merger of the Company
	 	 	75	 
	Section 12.5 Notice of Adjustment
	 	 	76	 
	Section 12.6 Notice in Certain Events
	 	 	77	 
	Section 12.7 Company To Reserve Stock: Registration; Listing
	 	 	78	 
	Section 12.8 Taxes on Conversion
	 	 	78	 
	Section 12.9 Conversion After Record Date
	 	 	79	 
	Section 12.10 Company Determination Final
	 	 	79	 
	Section 12.11 Responsibility of Trustee for Conversion Provisions
	 	 	79	 
	Section 12.12 Unconditional Right of Holders to Convert
	 	 	80	 
	ARTICLE XIII 
	 	 	 	 
	MISCELLANEOUS 
	 	 	 	 
	Section 13.1 Trust Indenture Act Controls
	 	 	80	 
	Section 13.2 Notices
	 	 	80	 
	Section 13.3 Communication by Holders with Other Holders
	 	 	81	 
	Section 13.4 Certificate and Opinion as to Conditions Precedent
	 	 	81	 
	Section 13.5 Statements Required in Certificate or Opinion
	 	 	81	 








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	Section 13.6 Separability Clause
	 	 	82	 
	Section 13.7 Rules by Trustee, Paying Agent, Conversion Agent and Registrar
	 	 	82	 
	Section 13.8 Legal Holidays
	 	 	82	 
	Section 13.9 Governing Law; Submission to Jurisdiction; Service of Process
	 	 	82	 
	Section 13.10 No Recourse Against Others
	 	 	83	 
	Section 13.11 Successors
	 	 	83	 
	Section 13.12 Multiple Originals
	 	 	83	 
	Section 13.13 Benefits of Indenture
	 	 	83	 







	 	 	 
	EXHIBIT A

	 	Form of Security
	EXHIBIT B

	 	Form of Restrictive Legend for shares of Common Stock Issued Upon Conversion
	EXHIBIT C

	 	Form of Repurchase Notice
	EXHIBIT D

	 	Form of Repurchase Event Repurchase Notice







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Execution Versions




     INDENTURE dated as of May 11, 2004 between COOPER CAMERON CORPORATION, a
Delaware corporation (the “Company”), and SUNTRUST BANK, a Georgia banking
corporation, as trustee (the “Trustee”).



     Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company’s 1.50% Convertible
Senior Debentures due 2024:



ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.1 Definitions.




     “Act” when used with respect to the Holders shall have the meaning set
forth in Section 1.4(a).



     “Additional Securities” means the 1.50% Convertible Senior Debentures due
2024 issuable from time to time following the Closing Date and the Option
Closing Date by the Company pursuant to this Indenture.



     “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.



     “Agent Members” has the meaning set forth in Section 2.1(b).



     “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.



     “Applicable Stock” means the shares of Common Stock; provided, that, in
the event of a Repurchase Event in which the Company is not the surviving
Person, the term “Applicable Stock” shall mean the Capital Stock or ordinary
shares or American Depositary Shares (or similar securities) of such surviving
Person or its direct or indirect parent.



     “Bankruptcy Law” means Title 11 of the United States Code, or any similar
federal or State law for the relief of debtors.



     “Bid Solicitation Agent” has the meaning set forth in Section 2.3.



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



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



 









 






     “Business Day” means each day of the year other than a Saturday or a
Sunday or other day on which banking institutions in The City of New York are
required or authorized by law or regulation to close.



     “Capital Stock” of any Person means any and all shares, interests, rights
to purchase, acquire or exchange, warrants, options, participations or other
equivalents of or interests in (however designated) equity ownership interests
issued by that Person.



     “Cash” means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.



     “Cash Amount” has the meaning set forth in Section 12.2(g).



     “Cash Settlement Averaging Period” has the meaning set forth in Section
12.2(g).



     “Cash Settlement Notice Period” has the meaning set forth in Section
12.2(g).



     “Certificated Securities” means Securities that are in substantially the
form attached hereto as Exhibit A and that do not include the information
called for by footnotes 1 and 3 thereof.



     “Closing Date” means the date of the closing of the initial issuance of an
aggregate of $230 Million aggregate principal amount of Securities hereunder,
May 11, 2004.



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



     “Common Stock” means the common stock, $0.01 par value per share, of the
Company as that stock exists 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.



     “Company” means the party named as the “Company” in the first paragraph 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 such subsequent successor or
successors.



     “Company Request” or “Company Order” means a written request or order
signed in the name of the Company by any two Officers, at least one of whom is
the Chief Executive Officer, the President, the Chief Financial Officer, an
Executive Vice President or a Senior Vice President.



     “Conversion Agent” has the meaning set forth in Section 2.3.



     “Conversion Date” has the meaning set forth in Section 12.2(c).



     “Conversion Notice” has the meaning set forth in Section 12.2(b).



     “Conversion Obligation” has the meaning set forth in Section 12.2(a).



2









 





     “Conversion Price” means, at any time, $1,000 divided by the Conversion
Rate in effect at such time rounded to two decimal places (rounded up if the
third decimal place thereof is 5 or more and otherwise rounded down).



     “Conversion Rate” means initially 14.4857 shares per $1,000 principal
amount of Securities, subject to adjustment as set forth herein.



     “Conversion Retraction Period” has the meaning set forth in Section
12.2(g).



     “Conversion Value” means, at any time, the amount equal to the product of
the Sale Price at such time multiplied by the then current Conversion Rate.



     “Corporate Trust Office” means the office of the Trustee in New York City
at which at any time its corporate trust business shall be administered for
certain purposes of this Indenture which office at the date of the execution of
this Indenture is located at 767 Third Avenue, 31st Floor, NY, NY 10012 c/o Law
Debenture Corporate Trust Services, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
corporate trust office of any successor Trustee in New York City (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” has the meaning set forth in Section 12.3(f).



     “Custodian” means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.



     “Debenture Measurement Period” has the meaning set forth in Section
12.1(a).



     “Default” means, when used with respect to the Securities, any event which
is, or after notice or passage of time or both would be, an Event of Default.



     “Depositary” means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.



     “Director” means a member of the Board of Directors.



     “distributed assets” has the meaning set forth in Section 12.3(d).



     “DTC” means The Depository Trust Company, a New York corporation.



     “Election Amount” has the meaning set forth in Section 12.2(g).



     “Election Date” has the meaning set forth in Section 12.2(g).



     “Event of Default” has the meaning set forth in Section 8.1.



     “Excess Amount Per Share” has the meaning set forth in Section 12.3(f).



3









 





     “Exchange Act” means the United States Securities Exchange Act of 1934, as
amended.



     “Ex-Dividend Date” means, with respect to any issuance or distribution on
shares of Common Stock, the first Trading Day on which the shares of Common
Stock trade regular way on the principal securities market on which the shares
of Common Stock are then traded without the right to receive such issuance or
distribution.



     “Fair Market Value” has the meaning set forth in Section 12.3(f).



     “Final Notice Date” has the meaning set forth in Section 12.2(g).



     “Global Securities” means Securities that are in substantially the form
attached hereto as Exhibit A and that include the information called for by
footnotes 1 and 3 thereof and that are deposited with the Depositary or its
custodian and registered in the name of, the Depositary or its nominee.



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



     “Indebtedness” has the meaning set forth in Section 2.14.



     “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 explicitly incorporated in this Indenture by reference to the TIA.



     “Initial Purchasers” means UBS Investment Bank, Citigroup Global Markets
Inc. and Banc One Capital Markets, Inc..



     “Interest Payment Date” has the meaning set forth in the Securities.



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



     “Legal Holiday” means any day other than a Business Day.



     “Liquidated Damages Amount” has the meaning set forth in the Registration
Rights Agreement. All references herein or in the Securities to interest
accrued or payable as of any date shall include any Liquidated Damages Amount
accrued or payable as of such date as provided in the Registration Rights
Agreement.



     “Market Price” means, with respect to Securities, as of any date of
determination, the average of the secondary market bid quotations per $1,000
principal amount of Securities obtained by the Bid Solicitation Agent (which
shall initially be the Trustee) for $1,000,000 principal amount of Securities
at approximately 3:30 p.m., New York City time, on such date of determination
from three securities dealers (none of which shall be an Affiliate of the
Company) selected by the Company, which may include the Initial Purchasers,
provided, that if at least three such bids cannot be reasonably obtained by the
Bid Solicitation Agent, but two bids are obtained, then the average of the two
bids shall be used, and if only one such bid can be



4









 




reasonably obtained by the Bid Solicitation Agent, this one bid will be
used; provided, however, if (a) the Bid Solicitation Agent, through the
exercise of reasonable efforts, is unable to obtain at least one bid from a
securities dealer, or (b) in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities
as of such date of determination, then the Market Price of a Security for such
date of determination shall be deemed to be less than 97% of the Conversion
Value on that date of determination;




     “Measurement Period” means the last 30 consecutive Trading Days in a
fiscal quarter, beginning with the fiscal quarter ending June 30, 2004.



     “Non-Electing Share” has the meaning set forth Section 12.4.



     “Non-Recourse Indebtedness” means indebtedness the terms of which provide
that the lender’s claim for repayment of such indebtedness is limited solely to
a claim against the property which secures such indebtedness.



     “Notice of Default” has the meaning set forth in Section 8.1.



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



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



     “Officers’ Certificate” means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by any two Officers, at least one of whom is the Chief Executive
Officer, the President, the Chief Financial Officer, an Executive Vice
President or a Senior Vice President and delivered to the Trustee. An Officers’
Certificate given pursuant to Section 6.3 shall be signed by the principal
financial or accounting Officer of the Company and one other Officer.



     “Opinion of Counsel” means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel. The counsel may be an
employee of, or counsel to, the Company.



     “Option Closing Date” shall mean the date of closing of, if any, pursuant
to the option granted by the Company to the Initial Purchasers in the Purchase
Agreement to purchase up to $23 Million aggregate principal amount of
Securities, which shall be on or before the 30th day following the Closing
Date.



     “Ordinary Cash Dividends” means any cash dividend paid by the Company in
accordance with the Company’s stated dividend policy as in effect from time to
time.



     “Outstanding Securities” has the meaning set forth in Section 2.8.



     “Paying Agent” has the meaning set forth in Section 2.3.



5









 





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



     “Principal Corporate Trust” means the principal corporate trust office of
the Trustee which office at the date of execution of this Indenture is 25 Park
Place, N.E., 24th Floor, Atlanta, GA 30303 or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company.



     “Principal Value Conversion” has the meaning set forth in Section 12.1(a).



     “Principal Value Conversion Market Price” shall have the meaning set forth
in Section 12.2(h).



     “Purchase Agreement” means the Purchase Agreement dated as of May 6, 2004,
among the Company and the Initial Purchasers.



     “QIB” means a “qualified institutional buyer” as defined in Rule 144A.



     “Record Date” has the meaning set forth in Section 12.3(f).



     “Redemption Date” means, when used with respect to any Security to be
redeemed, the date fixed for redemption pursuant to this Indenture.



     “Redemption Price” has the meaning set forth in Section 3.1.



     “Reference Period” has the meaning set forth in Section 12.3(d).



     “Registrar” has the meaning set forth in Section 2.3.



     “Registration Rights Agreement” means the Registration Rights Agreement,
dated as of May 11, 2004, between the Company and the Initial Purchasers.



     “Regular Record Date” has the meaning set forth in the Securities.



     “Repurchase Date” has the meaning set forth in Section 4.1(a).



     “Repurchase Event” has the meaning set forth in Section 5.1(a).



     “Repurchase Event Company Notice” has the meaning set forth in Section
5.1(b).



     “Repurchase Event Repurchase Date” has the meaning set forth in Section
5.1(a).



     “Repurchase Event Repurchase Notice” has the meaning set forth in Section
5.1(c).



     “Repurchase Event Repurchase Price” has the meaning set forth in Section
5.1(a).



     “Repurchase Notice” has the meaning set forth in Section 4.1(c).



6









 






     “Repurchase Price” has the meaning set forth in Section 4.1(a).



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



     “Restricted Certificated Security” means a Certificated Security which is
a Transfer Restricted Security.



     “Restricted Global Security” means a Global Security that is a Transfer
Restricted Security.



     “Restricted Security” means a Restricted Certificated Security or a
Restricted Global Security.



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



     “Sale Price” of one share of Common Stock or one share of Applicable Stock
on any date means the closing per share sale price of such Common Stock or
Applicable Stock, as applicable (or, if no closing sale price is reported, the
average of the bid and ask prices or, if there is more than one bid or ask
price, the average of the average bid and the average ask prices) on such date
as reported in composite transactions on the principal United States national
securities exchange on which the Common Stock or Applicable Stock is listed, or
if the shares of Common Stock or Applicable Stock are not listed on a United
States national securities exchange, as reported in composite transactions on
the Nasdaq National Market or the Nasdaq SmallCap Market or, if the shares of
Common Stock or Applicable Stock are not quoted on the Nasdaq National Market
or Nasdaq SmallCap Market, as reported on a United States regional securities
exchange, or if not listed on a United States regional securities exchange, as
reported by the National Association of Securities Dealers Automated Quotation
System or by the National Quotation Bureau Incorporated. In the absence of such
a quotation, the Board of Directors of the Company shall be entitled to make a
good faith determination of the sale price on the basis it considers
appropriate, which shall be conclusive.



     “Securities Act” means the United States Securities Act of 1933, as
amended.



     “Security” or “Securities” means any of the Company’s 1.50% Convertible
Senior Debentures due 2024, as amended or supplemented from time to time,
issued under this Indenture.



     “Significant Subsidiary” has the meaning set forth in Rule 1-02(w) of
Regulation S-X (17 C.F.R. 210).



     “Special Record Date” has the meaning set forth in the Securities.



7









 





     “Spin-Off” has the meaning set forth in Section 12.3(d).



     “Stated Maturity”, when used with respect to any Security, means May 15,
2024.



     “Subsidiary” means any Person of which at least a majority of the
outstanding voting stock shall at the time directly or indirectly be owned by
the Company or by one or more Subsidiaries thereof or by the Company and one or
more Subsidiaries.



     “TIA” means the United States 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) if the applicable security is listed or admitted for trading on
the quoted on the NYSE or other national or regional securities exchange,
a day on which such exchange is open for business;




     (b) if the applicable security is quoted on the Nasdaq National
Market, Nasdaq SmallCap Market or any similar United States system of
automated dissemination of quotations of securities prices, a day on
which trades may be made thereon; or




     (c) if the applicable security is not so listed or admitted for
trading and not so quoted, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.



     “Transfer Certificate” has the meaning set forth in Section 2.12(f).



     “Transfer Restricted Security” has the meaning set forth in Section
2.12(f).



     “Trigger Distribution” has the meaning set forth in Section 12.3(e).



     “Trigger Event” has the meaning set forth in Section 12.3(d).



     “Trustee” means the party named as the “Trustee” in the first paragraph 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.



     “Unrestricted Certificated Security” means a Certificated Security that is
not a Transfer Restricted Security.



     “Unrestricted Global Security” means a Global Security that is not a
Transfer Restricted Security.



8









 





Section 1.2 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 but not defined in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by
SEC rule have the meanings assigned to them by such definitions.



Section 1.3 Rules of Construction.




     Unless the context otherwise requires:




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




     (b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with accounting principles generally
accepted in the United States as in effect from time to time;




     (c) “or” is not exclusive;




     (d) “including” means including, without limitation;




     (e) words in the singular include the plural, and words in the
plural include the singular; and




     (f) “all” includes “any” and “any” includes “all.”



Section 1.4 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



9









 






the Company, as described in Section 13.2. 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, if it so states. 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 maintained by the
Registrar 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 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.



10









 





ARTICLE II

THE SECURITIES




Section 2.1 Form and Dating.




     The Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit A attached hereto, which is 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.




     (a) Restricted Global Securities. All of the Securities issued on
the Closing Date and the Option Closing Date are being offered and sold
to QIBs in reliance on Rule 144A and shall be issued initially in the
form of one or more Restricted Global Securities, which shall be
deposited with the Trustee at its Principal Corporate Trust Office, as
custodian for the Depositary and registered in the name of DTC or the
nominee thereof, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the
Restricted 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.




     (b) 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 initially represent the
aggregate amount of outstanding Securities stated thereon, but 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 of such Securities
and the issuance of Additional Securities.




     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 and shall be made on the records of the Trustee
and the Depositary.




     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 contained herein shall
(A) 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 (B) impair, as between the Depositary, its Agent Members and
any other person on



11









 






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.




     (c) Certificated Securities. Certificated Securities will be issued
only under the limited circumstances provided in Section 2.12(a)(i).



Section 2.2 Execution and Authentication.




     The Securities shall be executed on behalf of the Company by any Officer.
The signature of the Officer on the Securities may be manual or facsimile.



     A Security bearing the manual or facsimile signature of an individual who
was at the time of the execution of the Security an Officer shall bind the
Company, notwithstanding that such individual has ceased to hold such office(s)
prior to the authentication and delivery of such Securities or did not hold
such office(s) 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 amount of Securities which may be authenticated and delivered pursuant
to this Indenture shall be unlimited. The Trustee initially shall authenticate
and deliver the Securities for original issue in an aggregate principal amount
of up to $253,000,000 (which amount includes Securities issued upon exercise of
the Initial Purchasers’ option provided for in the Purchase Agreement) upon one
or more Company Orders without any further action by the Company (other than as
contemplated in Section 13.4 and Section 13.5). At any time and from time to
time after the execution and delivery of this Indenture, the Company may
deliver Additional Securities executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article Two, the Trustee
shall thereupon authenticate and make available for delivery said Securities to
or upon Company Order. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall receive and shall be fully protected in relying
upon:




     (a) in the case of the Securities to be authenticated and delivered
on the Closing Date and the Option Closing Date, a copy of the Board
Resolution in or pursuant to which the terms and form of the Securities
were established, the issuance and sale of the Securities was authorized,
this Indenture was authorized and specified Officers were authorized to
establish the form and determine the terms of the Securities and the form
of this Indenture, to execute the Securities and this Indenture on behalf
of the Company and to take any other necessary actions relating thereto
and evidence of any actions taken by authorized Officers pursuant to that
Board Resolution, each certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors or taken by any authorized Officer and to be in full force and
effect as of the date of such certificate;



12









 






     (b) in the case of Additional Securities, a copy of the Board
Resolution in or pursuant to which the issuance and sale of such
Additional Securities was authorized and specified Officers were
authorized to execute the Additional Securities on behalf of the Company
and to take any other necessary actions relating thereto and evidence of
any actions taken by authorized Officers pursuant to that Board
Resolution, each certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors or taken
by any authorized Officer and to be in full force and effect as of the
date of such certificate;




     (c) an Officers’ Certificate delivered in accordance with Sections
13.4 and 13.5; and




     (d) an Opinion of Counsel reasonably satisfactory to the Trustee.




     The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication
by such agent.




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


Section 2.3 Registrar, Paying Agent, Conversion Agent and Bid Solicitation 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 redemption, repurchase or
payment (“Paying Agent”), an office or agency where Securities may be presented
for conversion (“Conversion Agent”) and an office or agency where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall also appoint a bid solicitation agent (“Bid
Solicitation Agent”) to act as set forth in Section 3 of the Securities.
Pursuant to Section 6.5, the Company will at all times maintain a Registrar,
Paying Agent, Conversion Agent, and Bid Solicitation Agent and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served in the Borough of Manhattan, New
York City. 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, one or more additional conversion agents and one or more
additional Bid Solicitation Agents. The term Paying Agent includes any
additional paying agent, including any named pursuant to Section 6.5. The term
Conversion Agent includes any additional conversion agent, including any named
pursuant to Section 6.5.



     The Company shall enter into an appropriate limited agency agreement with
any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or
co-registrar (in each case, if such Person is a Person other than the Trustee).
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and



13









 




address of any such agent. If the Company fails to maintain a Registrar,
Paying Agent, Conversion Agent or Bid Solicitation Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to
Section 9.7. The Company or any Subsidiary or an Affiliate of either of them
may act as Paying Agent, Registrar, Conversion Agent or co-registrar. None of
the Company or any Subsidiary or any Affiliate of any of them may act as Bid
Solicitation Agent.




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



Section 2.4 Paying Agent to Hold Cash and Securities in Trust.




     Except as otherwise provided herein, prior to 10:00 a.m., New York City
time, on each due date of payments in respect of, or delivery of Cash or Common
Stock or Applicable Stock, or any combination thereof, upon conversion of, any
Security, the Company shall deposit with the Paying Agent Cash (in immediately
available funds if deposited on the due date) or with the Conversion Agent Cash
(in immediately available funds if deposited on the due date), such number of
shares of Common Stock and/or Applicable Stock sufficient to make such payments
or deliveries when so becoming due. The Company shall require each Paying Agent
or Conversion Agent, as applicable (other than the Trustee), to agree in
writing that such Agent shall hold in trust for the benefit of Securityholders
or the Trustee all Cash, Common Stock and Applicable Stock, as applicable, held
by such Agent for the making of payments or deliveries in respect of the
Securities and shall notify the Trustee of any default by the Company in making
any such payment or delivery. If the Company, a Subsidiary or an Affiliate of
any of them acts as Paying Agent or Conversion Agent, as applicable, it shall
segregate the money, Common Stock and Applicable Stock, as applicable, held by
it as Paying Agent or Conversion Agent, as applicable, and hold it as a
separate trust fund.



     The Company at any time may require a Paying Agent or Conversion Agent, as
applicable, to pay all Cash, Common Stock and Applicable Stock, as applicable,
held by it to the Trustee, and to account for any funds and Common Stock or
Applicable Stock, as applicable, disbursed by it, and the Trustee may at any
time during the continuance of any default, upon the written request to the
Paying Agent or Conversion Agent, as applicable, require such Paying Agent or
Conversion Agent, as applicable, to forthwith pay to the Trustee all Cash,
Common Stock and Applicable Stock, as applicable, so held in trust. Upon doing
so, the Paying Agent or Conversion Agent, as applicable, shall have no further
liability for such Cash, Common Stock or Applicable Stock, as applicable.



Section 2.5 Securityholder Lists.




     The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall cause
to be furnished to the Trustee on or before each semiannual interest payment
date and at such other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.



14









 





Section 2.6 Transfer and Exchange.





     (a) Subject to compliance with any applicable additional
requirements contained in Section 2.12, when a Security is presented to
the Registrar with a request to register a transfer thereof or to
exchange such Security for an equal principal amount of Securities of
other authorized denominations, the Registrar shall register the transfer
or make the exchange as requested; provided, however, that every Security
presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by an assignment form and, if applicable,
a transfer certificate, each in the form included in Exhibit A attached
hereto and in form satisfactory to the Registrar and each duly executed
by the Holder thereof or its attorney duly authorized in writing. To
permit registration of transfers and exchanges, upon surrender of any
Security for registration of transfer or exchange at an office or agency
maintained for such purpose pursuant to Section 2.3, the Company shall
execute, and the Trustee shall authenticate Securities of a like
aggregate principal amount at the Registrar’s request. Any transfer or
exchange shall be without charge, except that the Company or the
Registrar 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.




     Neither the Company, the Registrar nor the Trustee shall be required
to exchange or register a transfer of (i) any Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed), (ii) any Securities in respect of
which a Repurchase Notice or a Repurchase Event 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
repurchased in part, the portion thereof not to be repurchased) or (iii)
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.




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




     (b) Any Registrar appointed pursuant to Section 2.3 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.




     (c) Each Holder of a Security agrees to indemnify the Company, the
Registrar and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder’s Security in violation
of any provision of this Indenture and/or applicable United States
federal or state securities law.




     The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer
of any interest in any Security (including any transfers between or among
Agent Members or other beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other



15









 






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.



Section 2.7 Replacement Securities.




     If (a) any mutilated Security is surrendered to the Company, the Registrar
or the Trustee, or (b) the Company, the Registrar and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company, the Registrar 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, the Registrar or the
Trustee that such Security has been acquired by a bona fide or protected
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.



     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 by the
Company pursuant to Article III or repurchased by the Company pursuant to
Article IV or V, the Company in its discretion may, instead of issuing a new
Security, pay, redeem or repurchase such Security, as the case may be to the
Holder of record.



     Upon the issuance of any new Securities under this Section 2.7, the
Company may require the payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee or the
Registrar) connected therewith.



     Every new Security issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.



     The provisions of this Section 2.7 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 2.8 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 paid, redeemed or
repurchased pursuant to Section 2.7, those delivered to it for cancellation and
those described in this Section 2.8 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



16









 




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 and are referred to herein as “Outstanding Securities.”




     If a Security is replaced pursuant to Section 2.7, the replaced Security
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide or protected purchaser
unaware that such Security has been replaced.



     If the Paying Agent holds, in accordance with the terms of this Indenture,
prior to 10:00 a.m., New York City time, on the Stated Maturity or a Redemption
Date or on the Business Day immediately following a Repurchase Date or a
Repurchase Event Repurchase Date, as the case may be, Cash or securities, if
permitted hereunder, sufficient to pay Securities payable, then immediately
after such Stated Maturity, Redemption Date, Repurchase Date or Repurchase
Event Repurchase Date, as the case may be, such Securities shall cease to be
outstanding and interest and Liquidated Damages Amount, if any, on such
Securities shall cease to accrue.



     If a Security is converted in accordance with Article XII, then from and
after the time of conversion on the date of conversion, such Security shall
cease to be outstanding and interest and Liquidated Damages Amount, if any, on
such Security shall cease to accrue.



Section 2.9 Temporary Securities.




     Pending the preparation of definitive 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 definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.



     If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.3,
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
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.



Section 2.10 Cancellation.




     All Securities surrendered for payment, repurchase by the Company pursuant
to Articles IV or V, 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



17









 




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. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as 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 (whether in Cash, Common Stock or
Applicable Stock) of principal of, Redemption Price, Repurchase Price or
Repurchase Event Repurchase Price, and interest and Liquidated Damages Amount,
if any, on, the Security, for the purpose of receiving Cash, Common Stock or
Applicable Stock upon conversion and for all other purposes whatsoever, whether
or not such Security is 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 Additional Transfer and Exchange Requirements.





     (a) Transfer and Exchange of Global Securities.




     (i) Certificated Securities shall be issued in exchange for
interests in the Global Securities only if (y) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities or if it at any time ceases to
be a “clearing agency” registered under the Exchange Act, if so
required by applicable law or regulation and a successor Depositary
is not appointed by the Company within 90 days, or (z) an Event of
Default has occurred and is continuing and the Depositary notifies
the Trustee of its decision to exchange the Global Securities for
Certificated Securities. In any such case, the Company shall
execute, and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and
deliver Certificated Securities in an aggregate principal amount
equal to the principal amount of such Global Securities in exchange
therefor. Only Restricted Certificated Securities shall be issued
in exchange for beneficial interests in Restricted Global
Securities, and only Unrestricted Certificated Securities shall be
issued in exchange for beneficial interests in Unrestricted Global
Securities. Certificated Securities issued in exchange for
beneficial interests in Global Securities shall be registered in
such names and shall be in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing.
The Trustee shall deliver or cause to be delivered such
Certificated Securities to the Persons in whose name such
Securities are so registered. Such exchange shall be effected in
accordance with the Applicable Procedures.



18









 






     (ii) Notwithstanding any other provisions of this Indenture
other than the provisions set forth in Section 2.12(a)(i), a Global
Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.




     (b) Transfer and Exchange of Certificated Securities. In the event
that Certificated Securities are issued in exchange for beneficial
interests in Global Securities in accordance with Section 2.12(a)(i),
and, on or after such event, Certificated Securities are presented by a
Holder to the Registrar with a request:




     (x) to register the transfer of the Certificated Securities to
a person who will take delivery thereof in the form of Certificated
Securities only; or




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




	 	 	such Registrar shall register the transfer or make the exchange as
requested; provided, however, that the Certificated Securities presented
or surrendered for register of transfer or exchange:






     (i) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6; and




     (ii) in the case of a Restricted Certificated Security, such
request shall be accompanied by the following additional
information and documents, as applicable:




     A. if such Restricted Certificated Security is being
delivered to the Registrar by a Holder for registration in
the name of such Holder, without transfer, or such Restricted
Certificated Security is being transferred to the Company or
a Subsidiary of the Company, a certification to that effect
from such Holder (in substantially the form set forth in the
Transfer Certificate);




     B. if such Restricted Certificated Security is being
transferred to a person the Holder reasonably believes is a
QIB in accordance with Rule 144A, or pursuant to an effective
registration statement under the Securities Act or in
compliance with Rule 904 under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate);




     C. if such Restricted Certificated Security is being
issued to an institutional “accredited investor” (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act),
a certificate to that effect from the Holder (in
substantially the form set forth in the Transfer Certificate)
and a signed



19









 






letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities in
the form obtained from the Trustee;




     D. if such Restricted Certificated Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144 pursuant to and in compliance with an exemption from the
registration requirements under the Securities Act, a
certification to that effect from the Holder (in
substantially the form set forth in the Transfer Certificate)
and if the Company or the Registrar so requests, a customary
Opinion of Counsel, certificates and other information
reasonably acceptable to the Company and the Registrar to the
effect that such transfer does not require registration under
the Securities Act.




     (c) Transfer of a Beneficial Interest in a Restricted Global
Security for a Beneficial Interest in an Unrestricted Global Security.
Any person having a beneficial interest in a Restricted Global Security
may upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take
delivery thereof in the form of an Unrestricted Global Security. Upon
receipt by the Trustee of written instructions, or such other form of
instructions as is customary for the Depositary, from the Depositary or
its nominee on behalf of any person having a beneficial interest in a
Restricted Global Security and the following additional information and
documents in such form as is customary for the Depositary from the
Depositary or its nominee on behalf of the person having such beneficial
interest in the Restricted Global Security (all of which may be submitted
by facsimile or electronically):




     (i) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certification to that effect from the Holder (in substantially the
form set forth in the Transfer Certificate); or




     (ii) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certification to that
effect from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or the Trustee so
requests, a customary Opinion of Counsel, certificates and other
information reasonably acceptable to the Company and the Registrar
to the effect that such transfer does not require registration
under the Securities Act,




	 	 	the Registrar shall reduce or cause to be reduced the aggregate principal
amount of the Restricted Global Security by the appropriate principal
amount and shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon
receipt of a Company Order (which




20









 






	 	 	the Company agrees to deliver promptly), authenticate and deliver an
Unrestricted Global Security.






     (d) Transfer of a Beneficial Interest in an Unrestricted Global
Security for a Beneficial Interest in a Restricted Global Security. Any
person having a beneficial interest in an Unrestricted Global Security
may upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take
delivery thereof in the form of a Restricted Global Security. Upon
receipt by the Trustee of written instructions, or such other form of
instructions as is customary for the Depositary, from the Depository or
its nominee on behalf of any person having a beneficial interest in an
Unrestricted Global Security and the following additional information and
documents in such form as is customary for the Depositary, from the
Depositary or its nominee on behalf of the person having such beneficial
interest in the Unrestricted Global Security (all of which may be
submitted by facsimile or electronically):




     (i) a certification from the Holder (in substantially the form
set forth in the Transfer Certificate) to the effect that such
beneficial interest is being transferred to a person that the
transferor reasonably believes is a QIB in accordance with Rule
144A; or




     (ii) a certification from the Holder (in substantially the
form set forth in the Transfer Certificate) to the effect that such
beneficial interest is being transferred in compliance with Rule
904 under the Act; or




     (iii) a certification from the Holder (in substantially the
form set forth in the Transfer Certificate) to the effect that such
beneficial interest is being transferred to an institutional
“accredited investor” (as defined in Rule 501(a)(l), (2), (3) or
(7) under the Securities Act) and a signed letter containing
certain representations and agreements relating to the restrictions
on transfer of the Securities in the form obtained from the
Trustee.




	 	 	The Registrar shall reduce or cause to be reduced the aggregate principal
amount of the Unrestricted Global Security by the appropriate principal
amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to deliver
promptly), authenticate and deliver a Restricted Global Security.






     (e) Transfers of Certificated Securities for Beneficial Interest in
Global Securities. In the event that Certificated Securities are issued
in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(i)
which required such exchange shall cease to exist, the Company shall mail
notice to the Trustee and to the Holders stating that Holders may
exchange Certificated Securities or interests in Global Securities by
complying with the procedures set forth in



21









 






this Indenture and briefly describing such procedures and the events
or circumstances requiring that such notice be given. Thereafter, if
Certificated Securities are presented by a Holder to a Registrar with a
request:




     (x) to register the transfer of such Certificated Securities
to a person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall
specify whether such Global Security will be a Restricted Global
Security or an Unrestricted Global Security, or




     (y) to exchange such Certificated Securities for an equal
principal amount of beneficial interests in a Global Security,
which beneficial interests will be owned by the Holder transferring
such Certificated Securities (provided that in the case of such an
exchange, Restricted Certificated Securities may be exchanged only
for Restricted Global Securities and Unrestricted Certificated
Securities may be exchanged only for Unrestricted Global
Securities), the Registrar shall register the transfer or make the
exchange as requested by canceling such Certificated Security and
causing the aggregate principal amount of the applicable Global
Security to be increased accordingly and, if no such Global
Security is then outstanding, the Company shall issue and the
Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly) authenticate and deliver a new Global
Security;




	 	 	provided, however, that the Certificated Securities presented or
surrendered for registration of transfer or exchange:






     (i) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to Section
2.6(a);




     (ii) in the case of a Restricted Certificated Security to be
transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following
additional information and documents, as applicable:




     A. if such Restricted Certificated Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate); or




     B. if such Restricted Certificated Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate)
and, if the Company or the Registrar so requests, a customary
Opinion of Counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the
effect that such transfer does not require registration under
of the Securities Act;



22









 






     (iii) in the case of a Restricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by the following
information and documents, as applicable:




     A. if such Restricted Certificated Security is being
transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder)
in accordance with Rule 144A, a certification to that effect
from such Holder (in substantially the form set forth in the
Transfer Certificate); or




     B. if such Restricted Certificated Security is being
transferred in compliance with Rule 904 under the Act,
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate); or




     C. if such Restricted Certificated Security is being
transferred to an institutional “accredited investor” (as
defined in Rule 501(a)(l), (2), (3) or (7) under the
Securities Act), certification to that effect from such
Holder (in substantially the form set forth in the Transfer
Certificate) and a signed letter containing certain
representations and agreements relating to the restrictions
on transfer of the Securities in the form obtained from the
Trustee;




     (iv) in the case of an Unrestricted Certificated Security to
be transferred or exchanged for a beneficial interest in an
Unrestricted Global Security, such request need not be accompanied
by any additional information or documents; and




     (v) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by the following
additional information and documents, as applicable:




     A. if such Unrestricted Certificated Security is being
transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder)
in accordance with Rule 144A, a certification to that effect
from such Holder (in substantially the form set forth in the
Transfer Certificate); or




     B. if such Unrestricted Certificated Security is being
transferred in compliance with Rule 904 under the Act,
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate); or




     C. if such Unrestricted Certificated Security is being
transferred to an institutional “accredited investor” (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), certification to that effect from such



23









 






Holder (in substantially the form set forth in the
Transfer Certificate) and a signed letter containing certain
representations and agreements relating to the restrictions
on transfer of the Securities in the form obtained from the
Trustee;




     (f) Legends.




     (i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Global Security and Certificated Security (and
all Securities issued in exchange therefor or upon registration of
transfer or replacement thereof) shall bear a legend in
substantially the form called for by footnote 2 to Exhibit A
attached hereto (each a “Transfer Restricted Security”), for so
long as it is required by this Indenture to bear such legend. Each
Transfer Restricted Security shall have attached thereto a
certificate (a “Transfer Certificate”) in substantially the form
called for by footnote 5 to Exhibit A attached hereto.




     (ii) Upon any sale or transfer of a Transfer Restricted
Security (x) after the expiration of the holding period applicable
to sales of the Securities under Rule 144(k) of the Securities Act,
(y) pursuant to Rule 144 or (z) pursuant to an effective
registration statement under the Securities Act:




     A. in the case of any Restricted Certificated Security,
any Registrar shall permit the Holder thereof to exchange
such Restricted Certificated Security for an Unrestricted
Certificated Security, or (under the circumstances described
in Section 2.12(e)) to transfer such Restricted Certificated
Security to a transferee who shall take such Security in the
form of a beneficial interest in an Unrestricted Global
Security, and in each case shall rescind any restriction on
the transfer of such Security; provided, however, that the
Holder of such Restricted Certificated Security shall, in
connection with such exchange or transfer, comply with the
other applicable provisions of this Section 2.12; and




     B. in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; provided, however, that such Unrestricted Global
Security shall continue to be subject to the provisions of
Section 2.12(a)(ii); and provided, further, that the owner of
such beneficial interest shall, in connection with such
transfer, comply with the other applicable provisions of this
Section 2.12.




     (iii) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in
paragraph (i) above, the Company shall execute, and the Trustee
shall authenticate and deliver, Securities that do not bear such
legend and that do not have a Transfer Certificate attached
thereto.



24









 






     (iv) After the expiration of the holding period pursuant to
Rule 144(k) of the Securities Act, the Company may with the consent
of the Holder of a Restricted Global Security or a Restricted
Certificated Security, remove any restriction of transfer on such
Security, and the Company shall execute, and the Trustee shall
authenticate and deliver, Securities that do not bear such legend
and that do not have a Transfer Certificate attached thereto.




     (v) Until the expiration of the holding period applicable to
sales of the Securities under Rule 144(k) of the Securities Act or
a transfer pursuant to Rule 144 or pursuant to an effective
registration statement under the Securities Act, the shares of
Common Stock issued upon conversion of the Securities shall bear
the legend in substantially the form called for by Exhibit B
attached hereto.




     (g) Transfers to the Company. Nothing contained in this Indenture or
in the Securities shall prohibit the sale or other transfer of any
Securities (including beneficial interests in Global Securities) to the
Company or any of its Subsidiaries, which Securities shall thereupon be
cancelled in accordance with Section 2.10.



Section 2.13 CUSIP Numbers.




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



Section 2.14 Ranking.



     The indebtedness of the Company arising under or in connection with this
Indenture and every outstanding Security issued under this Indenture from time
to time constitutes and will constitute a senior unsecured general obligation
of the Company; and ranking equally with existing and future senior unsecured
Indebtedness of the Company and ranking senior in right of payment to any
future Indebtedness of the Company that is expressly made subordinate to the
Securities by the terms of such Indebtedness.



     For purposes of this Section 2.14 only, “Indebtedness” means, without
duplication, the principal or face amount of:




     (a) all obligations for borrowed money;




     (b) all obligations evidenced by bonds, debentures, notes or other
similar instruments;




     (c) all obligations in respect of letters of credit or bankers
acceptances or similar instruments (or reimbursement obligations with
respect thereto);



25









 






     (d) all obligations to pay the deferred purchase price of property
or services, except trade accounts payable arising in the ordinary course
of business;




     (e) all obligations as lessee which are capitalized in accordance
with generally accepted accounting principles; and




     (f) all Indebtedness of others guaranteed by the Company or any of
its Subsidiaries or for which the Company or any of its Subsidiaries is
legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).



ARTICLE III

REDEMPTION




Section 3.1 The Company’s Right to Redeem; Notice to Trustee.




     Prior to May 15, 2009, the Securities will not be redeemable at the
Company’s option. Beginning on May 15, 2009, the Company, at its option, may
redeem the Securities in accordance with this Article III for Cash at any time
as a whole, or from time to time in part, at a redemption price equal to 100%
of the principal amount of Securities to be redeemed plus any accrued and
unpaid interest and Liquidated Damages Amount, if any, on those Securities to,
but not including, the Redemption Date (the “Redemption Price”).



     In the event that the Company elects to redeem the Securities on a date
that is on or after any Regular Record Date but on or before the corresponding
Interest Payment Date, the Company shall be required to pay any accrued and
unpaid interest and Liquidated Damages Amount, if any, to the same Holder to
whom the Company pays the principal of such Security regardless of whether such
Holder was the registered Holder on the Regular Record Date immediately
preceding such Redemption Date and, if the Holder to whom the Company pays the
principal, interest and Liquidation Damages Amount, if any, was not the
registered Holder on the Regular Record Date, such payment shall be in lieu of
payment to the registered Holder on such Regular Record Date.



     If the Company elects to redeem Securities, it shall notify the Trustee in
writing of the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price. The Company shall give this notice to the
Trustee by a Company Order at least 35 days before the Redemption Date (unless
a shorter notice shall be satisfactory to the Trustee).



Section 3.2 Selection of Securities to Be Redeemed.




     If fewer than all of the outstanding 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 any other
method the Trustee considers fair and appropriate in its sole discretion. The
Trustee shall make the selection within five Business Days after it receives
the notice provided for in Section 3.1 from Outstanding Securities not
previously called for redemption.



26









 





     Securities and portions of Securities that the Trustee selects shall be in
principal amounts of $1,000 or a 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 of the Securities or portions of the Securities to be redeemed.



     Securities and portions of Securities that are to be redeemed are
convertible by the Holder until 5:00 p.m., New York City time, on the Business
Day immediately preceding the Redemption Date even if the Securities are not
otherwise convertible at that time. 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 which 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 3.3 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 by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed.



     The notice of redemption shall identify the Securities to be redeemed and
shall state:




     (a) the Redemption Date;




     (b) the Redemption Price;




     (c) the Conversion Rate;




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




     (e) that Securities called for redemption may be converted at any
time prior to 5:00 p.m., New York City time, on the Business Day
preceding the Redemption Date;




     (f) that Holders who want to convert their Securities must satisfy
the requirements set forth in Article XII;




     (g) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;




     (h) in the case of any Security redeemed in part, that the Holder of
such Security will receive a new Security or Securities, of authorized
denominations for the principal amount thereof remaining unredeemed;




     (i) 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;



27









 






     (j) that, unless the Company defaults in making payment of such
Redemption Price, interest and Liquidated Damages Amount, if any, on
Securities called for redemption will cease to accrue on and after the
Redemption Date;




     (k) the CUSIP number(s) of the Securities to be redeemed; and




     (l) any other information the Company determines to include at the
discretion of the Company.




     At the Company’s written request, the Trustee shall give the notice
of redemption in the Company’s name and at the Company’s expense;
provided, however, that the Company makes such request at least five
Business Days (unless a shorter period shall 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 3.3; provided, further,
that the text of the notice of redemption shall be prepared by the
Company.



Section 3.4 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,
except for Securities which 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.



Section 3.5 Deposit of Redemption Price.




     Prior to 10:00 a.m., New York City time, on the applicable Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.4) an amount of Cash (in
immediately available funds if deposited on the Redemption Date) sufficient to
pay the aggregate Redemption Price of all Securities or portions thereof which
are to be redeemed as of such Redemption Date other than Securities 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.



     If the Paying Agent holds, in accordance with the terms hereof, at 10:00
a.m., New York City time, on the applicable Redemption Date, Cash sufficient to
pay the Redemption Price of any Securities for which notice of redemption is
given, then, on such Redemption Date, such Securities will cease to be
outstanding and interest and Liquidated Damages Amount, if any, on such
Securities will cease to accrue, whether or not such Securities are delivered
to the Paying Agent, and the rights of the Holders in respect thereof shall
terminate (other than the right to receive the Redemption Price upon delivery
of such Securities).



Section 3.6 Securities Redeemed in Part.




     Any Certificated Security which is to be redeemed only in part shall be
surrendered at the office of the Paying Agent and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without charge, a new Security or Securities, of any



28









 





authorized denomination as requested by such Holder in aggregate principal
amount equal to the unredeemed portion of the Security surrendered.




Section 3.7 Repayment to the Company.




     To the extent that the aggregate amount of Cash deposited by the Company
pursuant to Section 3.5 exceeds the aggregate Redemption Price of the
Securities or portions thereof which the Company is redeeming as of the
Redemption Date, then, promptly after the Redemption Date, the Paying Agent
shall return any such excess to the Company.



ARTICLE IV

REPURCHASE OF SECURITIES AT THE OPTION OF HOLDERS

ON SPECIFIC DATES




Section 4.1 Optional Put.





     (a) Securities shall be repurchased by the Company, at the option of
the Holder thereof, on May 15, 2009, May 15, 2014 and May 15, 2019 (each,
a “Repurchase Date”), at a repurchase price equal to 100% of the
principal amount of those Securities plus accrued and unpaid interest and
Liquidated Damages Amount, if any, to, but not including, such Repurchase
Date (the “Repurchase Price”), subject to satisfaction by or on behalf of
the Holder of the requirements set forth in Section 4.1(c).




     (b) No later than 20 Business Days prior to each Repurchase Date,
the Company shall mail a written notice of the repurchase right by first
class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of
Repurchase Notice to be completed by the Holder and shall briefly state,
as applicable:




     (i) the date by which the Repurchase Notice must be delivered
to the Paying Agent in order for a Holder to exercise the
repurchase right;




     (ii) the Repurchase Date;




     (iii) the Repurchase Price;




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




     (v) the Conversion Rate and any adjustments thereto;




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




     (vii) that the Securities must be surrendered to the Paying
Agent to collect payment;



29









 






     (viii) that the Repurchase Price for any Security as to which
a Repurchase Notice has been duly given and not withdrawn will be
paid promptly following the later of the Repurchase Date and the
time of surrender of such Security;




     (ix) the procedures the Holder must follow to exercise its put
right under this Section 4.1;




     (x) the conversion rights, if any, of the Securities;




     (xi) the procedures for withdrawing a Repurchase Notice;




     (xii) that, unless the Company defaults in making payment of
such Repurchase Price, interest and Liquidated Damages Amount, if
any, on Securities surrendered for repurchase by the Company will
cease to accrue on and after the Repurchase Date; and




     (xiii) the CUSIP number(s) of the Securities.




     At the Company’s written request, the Trustee shall give the notice
of the repurchase right in the Company’s name and at the Company’s
expense; provided, however, that the Company makes such request at least
three Business Days (unless a shorter period shall be satisfactory to the
Trustee) prior to the date by which such notice of repurchase right must
be given to the Holder in accordance with this Section 4.1(b); provided,
further, that the text of the notice of repurchase right shall be
prepared by the Company.




     (c) A Holder may exercise its right specified in Section 4.1(a) upon
delivery of a written notice of repurchase (a “Repurchase Notice”),
substantially in the form of Exhibit C hereto, to the Paying Agent at any
time during the period beginning at 9:00 a.m., New York City time, on the
date that is 20 Business Days immediately preceding the relevant
Repurchase Date until 5:00 p.m., New York City time, on the Business Day
immediately preceding such Repurchase Date, stating:




     (i) the certificate number of the Security which the Holder
will deliver to be repurchased if Certificated Securities have been
issued;




     (ii) the portion of the principal amount of the Security which
the Holder will deliver to be repurchased, which portion must be in
principal amounts of $1,000 or a 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 the Securities and in this Indenture.




     The delivery of such Security to the Paying Agent with, or at any
time after delivery of, the Repurchase Notice (together with all
necessary endorsements) at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the



30









 






Repurchase Price therefor; provided, however, that such Repurchase
Price shall be so paid pursuant to this Section 4.1 only if the Security
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 4.1, a portion of a Security, so long as the principal
amount of such portion is $1,000 or a 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 4.1 shall be consummated by the delivery of
the consideration to be received by the Holder promptly following the
later of the Repurchase Date and the time of delivery of the Security.




     Notwithstanding anything contained herein to the contrary, any
Holder delivering to the Paying Agent the Repurchase Notice contemplated
by this Section 4.1(c) shall have the right to withdraw such Repurchase
Notice at any applicable time prior to 5:00 p.m., New York City time, on
the Business Day immediately preceding the Repurchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with
Section 4.3.




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



Section 4.2 Manner of Payment of Repurchase Price.




     The Repurchase Price will be paid in Cash.



Section 4.3 Effect of Repurchase Notice.




     Upon receipt by the Paying Agent of the Repurchase Notice specified in
Section 4.1(c), the Holder of the Security in respect of which such Repurchase
Notice was given shall (unless such Repurchase Notice is withdrawn as specified
in the following paragraph) thereafter be entitled to receive solely the
Repurchase Price with respect to such Security. Securities in respect of which
a Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article XII on or after the date of the delivery of such Repurchase
Notice unless such Repurchase Notice has first been validly withdrawn as
specified in the following paragraph.



     A 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 at any time prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Repurchase Date, specifying:




     (a) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted;




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



31









 






     (c) the principal amount, if any, of such Security which remains
subject to the original Repurchase Notice and which has been or will be
delivered for repurchase by the Company.



Section 4.4 Deposit of Repurchase Price.




     Prior to 10:00 a.m., New York City time, on the applicable Repurchase
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of any of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.4) an amount of Cash (in
immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Repurchase Price of all the Securities or portions thereof
which are to be repurchased on such Repurchase Date.



     If the Paying Agent holds, in accordance with the terms hereof, at 10:00
a.m., New York City time, on the applicable Repurchase Date, Cash sufficient to
pay the Repurchase Price of any Securities for which a Repurchase Notice has
been tendered and not withdrawn pursuant to Section 4.3, then, immediately
after such Repurchase Date, such Securities will cease to be outstanding and
interest and Liquidated Damages Amount, if any, on such Securities will cease
to accrue, whether or not such Securities are delivered to the Paying Agent,
and the rights of the Holders in respect thereof shall terminate (other than
the right to receive the Repurchase Price upon delivery of such Securities).



Section 4.5 Securities Repurchased in Part.




     Any Certificated Security which is to be repurchased 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 charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not repurchased.


Section 4.6 Covenant to Comply With Securities Laws Upon Repurchase of Securities.




     When complying with the provisions of Section 4.1 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:




     (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor
provision) under the Exchange Act;




     (b) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act; and



32









 






     (c) otherwise comply with all federal and state securities laws so
as to permit the rights and obligations under this Article IV to be
exercised in the time and in the manner specified therein.



     To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Article IV, the Company’s compliance with
such laws and regulations shall not in and of itself cause a breach of its
obligations under this Article IV.



Section 4.7 Repayment to the Company.




     To the extent that the aggregate amount of Cash deposited by the Company
pursuant to Section 4.4 exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Company is obligated to repurchase on
the Repurchase Date, then, promptly after the Repurchase Date, the Paying Agent
shall return any such excess to the Company.



ARTICLE V

REPURCHASE AT THE OPTION OF HOLDERS UPON A REPURCHASE EVENT




Section 5.1 Repurchase Event Put.





     (a) General. If a Repurchase Event occurs, any Securities not
previously repurchased, redeemed or converted by the Company shall be
repurchased by the Company at the option of the Holder thereof at a
repurchase price equal to 100% of the principal amount of the Securities
to be repurchased, plus accrued and unpaid interest and Liquidated
Damages Amount, if any, on those notes to, but not including, the
Repurchase Event Repurchase Date (the “Repurchase Event Repurchase
Price”), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in Section 5.1(c). The repurchase event repurchase
date must be within 30 days after the date of the mailing of the
Repurchase Event Company Notice under Section 5.1 (b) (the “Repurchase
Event Repurchase Date”).




     A “Repurchase Event” shall be deemed to have occurred upon the
occurrence of either a “change in control” or a “termination of trading”
where:




     (i) a “change in control” will be deemed to have occurred at
such time as:




     A. any person or group after the first issuance of
Securities becomes the beneficial owner (whether by means of
an exchange offer, liquidation, tender offer, consolidation,
merger, combination, reclassification, recapitalization or
any other method) of the Company’s voting stock representing
50% or more of the total voting power of all of the Company’s
outstanding classes of voting stock or has the power,
directly or indirectly, to elect a majority of the members of
the board of directors of the Company;




     B. the Company consolidates with or merges with or into
another person, the Company sells, assigns, conveys,
transfers, leases or otherwise



33









 






     disposes of all or substantially all of its assets or
any person consolidates with or merges with or into the
Company; or




     C. the Company liquidates or dissolves.




	 	 	provided, however, a “change of control” will not be deemed to have
occurred for purposes of Section 5.1(a)(i)A or B above if:






     1. the persons that beneficially own the Company’s
voting stock immediately prior to a transaction
beneficially own shares with a majority of the total
voting power of all outstanding voting stock of the
surviving or transferee person; or




     2. at least 95% of the total consideration to be
paid or exchanged in connection with such transaction
consists of common stock of the acquiror or successor
entity which is listed (or, upon consummation of or
immediately following such transaction or event, which
will be listed) on a United States national securities
exchange or approved for quotation on the Nasdaq’s
National Market or any similar United States system of
automated dissemination of quotations of securities
prices.




     (ii) a “termination of trading” shall occur if the Company’s
Common Stock or Applicable Stock is neither listed for trading on a
United States national or regional securities exchange nor approved
for trading on the NASDAQ National Market, NASDAQ SmallCap Market
or any other established United States system of automated
dissemination of quotations of securities prices.




	 	 	For purposes of this section, the terms “person” or “group” shall have
the meanings used for purposes of Sections 13(d) and 14(d) of the
Exchange Act.
	 
	 	 	For purposes of this section, the terms “beneficial owner,” “beneficially
owned” and similar terms shall have the meanings set forth in Rule 13d-3
under the Exchange Act.
	 
	 	 	For purposes of this section, the term “voting stock” shall mean the
Company’s Capital Stock entitled to vote generally in the election of
directors.






     (b) Notice of Repurchase Event. No later than 20 days after the
occurrence of a Repurchase Event, the Company shall mail a written notice
of Repurchase Event (the “Repurchase Event Company Notice”) by first
class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of
Repurchase Event Repurchase Notice to be completed by the Holder and
shall briefly state, as applicable:




     (i) the events causing a Repurchase Event and the date of such
Repurchase Event;



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     (ii) that the Holder has a right to require the Company to
repurchase the Holder’s Securities;




     (iii) the date by which the Repurchase Event Repurchase Notice
must be delivered to the Paying Agent in order for a Holder to
exercise the Repurchase Event repurchase right;




     (iv) the Repurchase Event Repurchase Date;




     (v) the Repurchase Event Repurchase Price;




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




     (vii) the Conversion Rate applicable on the Repurchase Event
Company Notice Date and any adjustments to the Conversion Rate that
may result from the Repurchase Event;




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




     (ix) that the Securities must be surrendered to the Paying
Agent to collect payment;




     (x) that the Repurchase Event Repurchase Price for any
Security as to which a Repurchase Event Repurchase Notice has been
duly given and not withdrawn will be paid promptly following the
later of the Fundamental Repurchase Date and the time of surrender
of such Security;




     (xi) the procedures the Holder must follow to exercise its
Repurchase Event repurchase right under this Section 5.1;




     (xii) the conversion rights, if any, of the Securities;




     (xiii) the procedures for withdrawing a Repurchase Event
Repurchase Notice;




     (xiv) that, unless the Company defaults in making payment of
such Repurchase Event Repurchase Price, interest and Liquidated
Damages Amount, if any, on Securities surrendered for repurchase by
the Company will cease to accrue on and after the Repurchase Event
Repurchase Date; and




     (xv) the CUSIP number(s) of the Securities.



     At the Company’s written request, the Trustee shall give the
Repurchase Event Company Notice in the Company’s name and at the
Company’s expense; provided,



35









 




however, the Company makes such request at least three Business Days
(unless a shorter period shall be satisfactory to the Trustee) prior to
the date by which such Repurchase Event Company Notice must be given to
the Holders in accordance with this Section 5.1(b); provided, further,
that the text of the Repurchase Event Company Notice shall be prepared by
the Company.





     (c) Repurchase Event Repurchase Notice. A Holder may exercise its
right specified in Section 5.1(a) upon delivery of a written notice of
repurchase (a “Repurchase Event Repurchase Notice”), substantially in the
form of Exhibit D hereto, to the Paying Agent at any time prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the
Repurchase Event Repurchase Date, stating:




     (i) the certificate number of the Security which the Holder
will deliver to be repurchased if Certificated Securities have been
issued;




     (ii) the portion of the principal amount of the Security which
the Holder will deliver to be repurchased, which portion must be
$1,000 or a multiple of $1,000;




     (iii) that such Security shall be repurchased on the
Repurchase Event Repurchase Date pursuant to the terms and
conditions specified in the Securities and in this Indenture; and




     The delivery of such Security to the Paying Agent with, or at any
time after delivery of, the Repurchase Event Repurchase Notice (together
with all necessary endorsements) at the offices of the Paying Agent shall
be a condition to the receipt by the Holder of the Repurchase Event
Repurchase Price therefor; provided, however, that such Repurchase Event
Repurchase Price shall be so paid pursuant to this Section 5.1 only if
the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Repurchase
Event Repurchase Notice.




     The Company shall repurchase from the Holder thereof, pursuant to
this Section 5.1, a portion of a Security, so long as the principal
amount of such portion is $1,000 or a 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 5.1 shall be consummated by the delivery of
the consideration to be received by the Holder promptly following the
later of the Repurchase Event Repurchase Date and the time of delivery of
the Security.




     Notwithstanding anything contained herein to the contrary, any
Holder delivering to the Paying Agent the Repurchase Event Repurchase
Notice contemplated by this Section 5.1(c) shall have the right to
withdraw such Repurchase Event Repurchase Notice at any time prior to
5:00 p.m., New York City time, on the Business Day immediately preceding
the Repurchase Event Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 5.3.



36









 






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



Section 5.2 Manner of Payment of Repurchase Event Repurchase Price.




     The Securities to be repurchased with respect to any Repurchase Event
Repurchase Date pursuant to 5.1(a) will be paid in Cash.



Section 5.3 Effect of Repurchase Event Repurchase Notice.




     Upon receipt by the Paying Agent of the Repurchase Event Repurchase Notice
specified in Section 5.1(c), the Holder of the Security in respect of which
such Repurchase Event Repurchase Notice was given shall (unless such Repurchase
Event Repurchase Notice is withdrawn as specified in the following paragraph)
thereafter be entitled to receive solely the Repurchase Event Repurchase Price
with respect to such Security. Securities in respect of which a Repurchase
Event Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article XII on or after the date of the delivery of such
Repurchase Event Repurchase Notice unless such Repurchase Event Repurchase
Notice has first been validly withdrawn as specified in the following
paragraph.



     A Repurchase Event 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 Event Repurchase Notice at any time prior to
5:00 p.m., New York City time, on the Business Day immediately preceding the
Repurchase Event Repurchase Date, specifying:




     (a) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted;




     (b) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted; and




     (c) the principal amount, if any, of such Security which remains
subject to the original Repurchase Event Repurchase Notice and which has
been or will be delivered for repurchase by the Company.



Section 5.4 Deposit of Repurchase Event Repurchase Price.




     Prior to 10:00 a.m., New York City time, on the applicable Repurchase
Event Repurchase Date, the Company shall deposit with the Paying Agent (or if
the Company or a Subsidiary or an Affiliate of any of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.4) an
amount of Cash (in immediately available funds if deposited on such Business
Day), sufficient to pay the aggregate Repurchase Event Repurchase Price of all
the Securities or portions thereof which are to be repurchased on such
Repurchase Event Repurchase Date.



     If the Paying Agent holds, in accordance with the terms hereof, at 10:00
a.m., New York City time, on the applicable Repurchase Event Repurchase Date,
Cash sufficient to pay the Repurchase Event Repurchase Price of any Securities
for which a Repurchase Event Repurchase



37









 




Notice has been tendered and not withdrawn pursuant to Section 5.3, then,
immediately after such Repurchase Event Repurchase Date, such Securities will
cease to be outstanding and interest and Liquidated Damages Amount, if any, on
such Securities will cease to accrue, whether or not such Securities are
delivered to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Repurchase Event
Repurchase Price upon delivery of such Securities).




Section 5.5 Securities Repurchased in Part.




     Any Certificated Security which is to be repurchased 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 charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not repurchased.


Section 5.6 Covenant to Comply With Securities Laws Upon Repurchase of Securities.




     When complying with the provisions of Section 5.1 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:




     (a) comply with Rule 13e-4 and Rule 14e-1 (or any successor
provision) under the Exchange Act;




     (b) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act; and




     (c) otherwise comply with all federal and state securities laws so
as to permit the rights and obligations under this Article V to be
exercised in the time and in the manner specified therein.



     To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Article V, the Company’s compliance with
such laws and regulations shall not in and of itself cause a breach of its
obligations under this Article V.



Section 5.7 Repayment to the Company.




     To the extent that the aggregate amount of Cash deposited by the Company
pursuant to Section 5.4 exceeds the aggregate Repurchase Event Repurchase Price
of the Securities or portions thereof which the Company is obligated to
repurchase as of the Repurchase Event Repurchase Date then, promptly after the
Repurchase Event Repurchase Date, the Paying Agent shall return any such excess
to the Company.



38









 





ARTICLE VI

COVENANTS




Section 6.1 Payment of Securities.




     The Company shall promptly make all payments in respect of the Securities
on the dates and in the manner provided in the Securities or pursuant to this
Indenture. Principal amount, Redemption Price, Repurchase Price and Repurchase
Event Repurchase Price and accrued and unpaid interest and Liquidated Damages
Amount, if any, shall be considered paid on the applicable date due if by 10:00
a.m., New York City time, on such date the Paying Agent holds, in accordance
with this Indenture, Cash or securities, if permitted hereunder, sufficient to
pay all such amounts then due. The Company shall, to the fullest extent
permitted by law, pay interest on overdue principal and overdue installments of
interest and Liquidated Damages Amount, if any, at the rate borne by the
Securities per annum. Except as otherwise specified, all references in this
Indenture or the Securities to interest shall be deemed to include, without
duplication, Liquidated Damages Amount, if any, payable pursuant to the
Registration Rights Agreement.



     Payment of the principal of and interest and Liquidated Damages Amount, if
any, on the Securities shall be in Cash.



     Except as provided in the immediately succeeding paragraph, the Company
shall pay interest and Liquidated Damages Amount, if any, on the Securities to
the Person in whose name the Securities are registered at the close of business
on the Regular Record Date next preceding the corresponding Interest Payment
Date. Any such interest and Liquidated Damages Amount, if any, not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may be paid (a) to the Person in whose
name the Securities are registered at the close of business on a Special Record
Date for the payment of such defaulted interest and Liquidated Damages Amount,
if any, to be fixed by the Trustee, notice whereof will be given to the Holders
not less than 10 days prior to such Special Record Date or (b) at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange.



     If a Security is redeemed pursuant to Article III hereof or the Holder
elects to require the Company to repurchase such Security pursuant to either
Article IV or Article V hereof on a date that is after the Regular Record Date
and prior to the corresponding Interest Payment Date, interest and Liquidated
Damages Amount, if any, accrued and unpaid on such Security to, but not
including, the applicable Redemption Date, Repurchase Date or Repurchase Event
Repurchase Date will be paid to the same Holder to whom the Company pays the
principal of such Security regardless of whether such Holder was the registered
Holder on the Regular Record Date immediately preceding the applicable
Redemption Date, Repurchase Date or Repurchase Event Repurchase Date.



     Holders must surrender the Securities to the Paying Agent to collect
payment of principal. Payment of interest and Liquidated Damages Amount, if
any, on Certificated Securities will be made by (i) check mailed to the address
of the Person entitled thereto as such address appears in the Register if such
Securities have an aggregate principal amount of $5 million or less or (ii)
wire transfer of immediately available funds to an account designated by



39









 




such Person if such Securities have an aggregate principal amount in
excess of $5 million. Notwithstanding the foregoing, so long as the Securities
are registered in the name of a Depositary or its nominee, all payments with
respect to the Securities shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.




Section 6.2 SEC and Other Reports to the Trustee.




     The Company shall ensure delivery 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 in accordance with TIA Section 314(a); provided, however, that delivery may
be effected in accordance with the provisions of Rule 19a-1 under the TIA if
and during any time the Company is eligible thereunder; and further provided,
however, that the Company shall not be required to deliver to the Trustee any
material for which the Company has sought and received confidential treatment
by the SEC. In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall
continue to provide the Trustee with annual and quarterly reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall 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 exclusively on Officers’
Certificates).



Section 6.3 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, 2004) an Officers’ Certificate, stating whether or not to the knowledge of
the signers thereof, the Company is in Default in the performance and
observance of any of the terms, provisions and conditions of this Indenture and
if the Company shall be in Default, specifying all such Defaults and the nature
and status thereof of which they may have knowledge.



Section 6.4 Further Instruments and Acts.




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


Section 6.5 Maintenance of Office or Agency of the Trustee, Registrar, Paying Agent and Conversion Agent.





40









 








     The Company will 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,
redemption, repurchase or conversion and 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 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 13.2.



     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 6.6 Delivery of Information Required Under Rule 144A.




     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 will make available the information required
pursuant to Rule 144A(d)(4) under the Securities Act to such Holder or any
beneficial owner of Securities or holder or beneficial owner of shares of
Common Stock issued upon conversion thereof, 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 holder with Rule 144A
under the Securities Act in connection with the resale of any such security;
provided, however, that the Company shall not be required to furnish such
information in connection with any request made on or after the date which is
two years from the later of the date such security was last acquired from the
Company or an “affiliate” (as defined under Rule 144 under the Securities Act)
of the Company. Whether a person is a beneficial owner shall be determined by
the Company to the Company’s reasonable satisfaction.



Section 6.7 Waiver of Stay, Extension or Usury Laws.




     The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law 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, Redemption Price, Repurchase Price or Repurchase Event Repurchase Price
in respect of Securities, or any interest and Liquidated Damages Amount, if
any, on such amounts, 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 will not hinder, delay or impede



41









 




the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.




Section 6.8 Statement by Officers as to Default.




     The Company shall deliver to the Trustee, as soon as practicable and in
any event within five Business Days after the Company becomes aware of the
occurrence of any Default or Event of Default or, an Officers’ Certificate
setting forth the details of such Default or Event of Default and the action
which the Company proposes to take with respect thereto.



ARTICLE VII

SUCCESSOR CORPORATION




Section 7.1 When Company May Merge or Transfer Assets.




     The Company shall not consolidate with, merge with or into, or sell,
assign, convey, transfer or lease its properties and assets substantially in
their entirety (computed with respect to the Company and its Subsidiaries on a
consolidated basis) to any Person, unless:




     (a) either (i) the Company is the surviving entity or (ii) the
successor or transferee (the “successor corporation”) is a corporation
organized and existing under the laws of the United States, any State
thereof, or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, all
of the obligations of the Company under the Securities and the Indenture;




     (b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or the passage of time, or
both, would become an Event of Default under this Indenture shall exist;
and




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



Section 7.2 Successor Corporation Substituted




     Upon any consolidation with or merger into any corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially in their entirety in accordance with Section 7.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and in the case of a conveyance, transfer, or
lease of the properties and assets of the Company substantially in their
entirety, the Company shall be irrevocably released from its liabilities as
obligor and maker of the Securities and from its obligations under this
Indenture.



42









 





ARTICLE VIII

DEFAULTS AND REMEDIES




Section 8.1 Events of Default.




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




     (a) the Company defaults in the payment of any of the principal
amount of the Securities, when the same become due and payable;




     (b) the Company defaults in the payment of any accrued and unpaid
interest and Liquidated Damages Amount, if any, in each case, when due
and payable, and continuance of such default for a period of 30 days;




     (c) following the exercise by the Holder of the right to convert a
Security pursuant to and in accordance with Article XII, the Company
fails to deliver the Cash, Common Stock, or any combination thereof, as
applicable, upon conversion pursuant to Section 12.2(d);




     (d) the Company fails to provide the Repurchase Event Company Notice
as required by this Indenture.




     (e) the Company fails to comply with any of its agreements or
covenants in the Securities or this Indenture (other than those referred
to in clause (a) through (d) above) and such failure continues for 60
days after receipt by the Company of a Notice of Default (defined below);




     (f) the Company fails or any Significant Subsidiary fails to make
any payment at maturity on any Indebtedness, including any applicable
grace periods, in an amount in excess of $75,000,000 in the aggregate for
all such Indebtedness and such amount has not been paid or discharged
within 30 days after receipt by the Company of a Notice of Default;




     (g) a default by the Company or any Significant Subsidiary that
results in the acceleration of maturity of any Indebtedness of the
Company or any Significant Subsidiary (other than Non-Recourse
Indebtedness), at any one time, in an amount in excess of $75,000,000
unless the acceleration is rescinded, stayed or annulled within 30 days
after receipt by the Company of a Notice of Default;




     (h) the Company or any Significant Subsidiary, pursuant to or under
or within the meaning of any Bankruptcy Law:




     (i) commences a voluntary case or proceeding;




     (ii) consents to the entry of any order for relief against it
in an involuntary case or proceeding or the commencement of any
case against it;



43









 






     (iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;




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




     (v) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or




     (vi) consents to the filing of such petition or the
appointment of or taking possession by a Custodian; or




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




     (i) is for relief against the Company or any Significant
Subsidiary, in an involuntary case or proceeding;




     (ii) appoints a Custodian of the Company or any Significant
Subsidiary, or for any substantial part of its property; or




     (iii) orders the winding up or liquidation of the Company or
any Significant Subsidiary,




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




     A Default under clause (e), (f) or (g) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities
notify the Company and the Trustee in writing, of the Default and the
Company does not cure such Default (and such Default is not waived)
within the time specified in clause (e), (f) or (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 8.2 Acceleration.




     If an Event of Default (other than an Event of Default specified in
Section 8.1(h) or (i)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities by written notice to the Company and the Trustee, may
declare the principal amount plus accrued and unpaid interest and Liquidated
Damages Amount, 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 8.1(h) or (i) occurs and is
continuing, the principal amount plus accrued and unpaid interest and
Liquidated Damages Amount, 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.



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     The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities, by notice to the Trustee (and without notice to any
other Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree for payment of money
under this Indenture or the Debentures and if all existing Events of Default
have been cured or waived except nonpayment of the principal amount plus
accrued and unpaid interest and Liquidated Damages Amount, if any, that have
become due solely as a result of acceleration and if all amounts due to the
Trustee under Section 9.7 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.



Section 8.3 Other Remedies.




     If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy to collect the payment
of the principal amount plus accrued and unpaid interest and Liquidated Damages
Amount, 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.



Section 8.4 Waiver of Past Defaults.




     Subject to Sections 8.7 and 11.2, the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities, by notice to the
Trustee (and without notice to any other Securityholder), may waive an existing
Default (or Event of Default) and its consequences except:




     (a) an Event of Default in the payment of the principal of, or any
interest or Liquidated Damages Amount, if any, with respect to, any
Security or the payment of any applicable Repurchase Price, Repurchase
Event Repurchase Price or Redemption Price; or




     (b) a Default in respect of any provision of this Indenture or the
Securities, which, under Section 11.2, cannot be amended or modified
without the consent of each Securityholder affected thereby.



     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 8.4 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 8.5 Control by Majority.




     The Holders of a majority in aggregate principal amount of the Outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to




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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 in good faith is prejudicial
to the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee is offered indemnity or security satisfactory to
it. This Section 8.5 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 8.6 Limitation on Suits.




     A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:




     (a) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;




     (b) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities make a written request to the Trustee to pursue
the remedy;




     (c) such Holder or Holders offer to the Trustee security or
indemnity satisfactory to the Trustee against any loss, liability or
expense;




     (d) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or indemnity;
and




     (e) the Holders of a majority in aggregate principal amount of the
Outstanding Securities 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 8.7 Rights of Holders to Receive Payment or to Convert.




     Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the principal amount, Redemption Price, Repurchase
Price, Repurchase Event Repurchase Price or interest and Liquidated Damages
Amount, if any, in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities and in this Indenture, and
to convert such Securities in accordance with Article XII, or to bring suit for
the enforcement of any such payment on or after such respective dates or the
right to convert, is absolute and unconditional and shall not be impaired or
affected adversely without the consent of such Holder.



Section 8.8 Collection Suit by Trustee.




     If an Event of Default described in Section 8.1(a) or (b), occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or another obligor on the Securities for
the whole amount owing with respect to the Securities and the amounts provided
for in Section 9.7.



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Section 8.9 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,
Redemption Price, Repurchase Price, Repurchase Event Repurchase Price or
interest and Liquidated Damages Amount, 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 amount of the principal
amount, Redemption Price, Repurchase Price, Repurchase Event Repurchase
Price, or interest and Liquidated Damages Amount, 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
9.7) and of the Holders allowed in such judicial proceeding, and




     (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 9.7.




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



Section 8.10 Priorities.





     (a) If the Trustee collects any money pursuant to this Article VIII,
it shall pay out the money in the following order:




     FIRST: to the Trustee for amounts due under Section 9.7;




     SECOND: to Securityholders for amounts due and unpaid on the
Securities for the principal amount, Redemption Price, Repurchase Price,
Repurchase Event Repurchase Price or interest and Liquidated Damages
Amount, 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



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     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 8.10. 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 8.11 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,
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 8.11 does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 8.7 or a suit by Holders
of more than 10% in aggregate principal amount of the Securities at the time
outstanding. This Section 8.11 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 8.12 Restoration of Rights and Remedies.




     If the Trustee or any Holder has instituted any proceedings to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.



ARTICLE IX

TRUSTEE




Section 9.1 Duties of Trustee.





     (a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise of
those rights and powers 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:




     (i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the



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opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein.




	 	 	This Section 9.1(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:




     (i) this Section (c) does not limit the effect of Section (b)
of this Section 9.1;




     (ii) 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;




     (iii) 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 8.5; and




     (iv) the Trustee shall not be liable for disclosure relating
to the offering or sale of the Securities.




	 	 	Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA, respectively, 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 paragraphs (a), (b), (c) and (e) of this Section
9.1.




     (e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity or security 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.



Section 9.2 Rights of Trustee.




     Subject to its duties and responsibilities under Section 9.1 and under the
TIA,



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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 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 Officers’ 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 reliance on 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 shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the 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



50









 






unless written notice of any event which is in fact such a default
is received by the Trustee at the Principal 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; and




     (k) the Trustee may request that the Company deliver an Officers’
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 Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.



Section 9.3 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 Sections 9.10 and 9.11.



Section 9.4 Trustee’s Disclaimer.




     The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use
or application of the proceeds from the Securities, it shall not be responsible
for any statement in any registration statement for the Securities under the
Securities Act or in any offering document for the Securities, this 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.



Section 9.5 Notice of Defaults.




     If a Default occurs and if it is actually known to the Trustee, the
Trustee shall give to each Securityholder notice of the Default within 90 days
after it occurs or, if later, within 15 days after it is known to the Trustee,
unless such Default shall have been cured or waived before the giving of such
notice. Notwithstanding the preceding sentence, except in the case of a Default
described in Section 8.1(a) or (b), 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.



Section 9.6 Reports by Trustee to Holders.




     Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15



51









 




that complies with TIA Section 313(a), if required by such Section 313(a).
The Trustee also shall comply with TIA Section 313(b). The Trustee will also
transmit by mail all reports as required by TIA Section 313(c).




     The Company agrees to notify the Trustee promptly in writing whenever the
Securities become listed on any securities exchange and of any delisting
thereof.



Section 9.7 Compensation and Indemnity.




     The Company agrees to:




     (a) 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) 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 or willful misconduct or bad faith;
and




     (c) fully indemnify the Trustee, any predecessor Trustee and each of
their directors and officers for, and to hold each of them harmless
against, any and all 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 income of the
Trustee)) incurred without negligence or willful misconduct or bad faith
on the part of the Person so indemnified, arising out of or in connection
with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending 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 powers or duties
hereunder, or in connection with enforcing the provisions of this Section
9.7.




     The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity hereunder; provided, that a failure to notify shall
not relieve the Company of its obligations hereunder except to the extent
the Company is materially prejudiced by such failure. The Trustee shall
have the right to employ one separate counsel in any such action or
proceeding and participate in the investigation and defense thereof, and
the Company shall pay the reasonable fees and expenses of such separate
counsel; provided, however, that the Trustee may only employ such
separate counsel at the expense of the Company if in the reasonable
judgment of the outside counsel to the Trustee (i) a conflict of interest
exists by reason of common representation or (ii) there are legal
defenses available to the Trustee that are different from or are in
addition to those available to the Company or if all parties commonly
represented do not agree as to the action (or inaction) of counsel.



52









 






     To secure the Company’s payment obligations in this Section 9.7, 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, Redemption Price, Repurchase Price, Repurchase
Event Repurchase Price or interest and Liquidated Damages Amount, if any,
as the case may be, on particular Securities.




     The Company’s payment obligations pursuant to this Section 9.7 shall
survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a
Default specified in Section 8.1(h) or (i), the expenses including the
reasonable charges and expenses of its counsel, are intended to
constitute expenses of administration under any Bankruptcy Law.



Section 9.8 Replacement of Trustee.




     The Trustee may resign by so notifying the Company; provided, however,
that no such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 9.8. 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 as soon as practicable shall remove the Trustee if:




     (a) the Company becomes aware that the Trustee fails to comply with
Section 9.10;




     (b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;




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




     (d) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint, 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 9.7.



     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 at the expense of the Company any court of
competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee.



53









 





     If the Trustee fails to comply with Section 9.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.



Section 9.9 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
corporation or company, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.



Section 9.10 Eligibility; Disqualification.




     The Trustee shall at all times satisfy the requirements of TIA Sections
310(a)(1) and 310(b). The Trustee (or its parent holding company) shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. Nothing contained herein shall
prevent the Trustee from filing with the Commission the application referred to
in the penultimate paragraph of TIA Section 310(b).



Section 9.11 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 X

DISCHARGE OF INDENTURE




Section 10.1 Discharge of Liability on Securities.




     When (a) the Company delivers to the Trustee all Outstanding Securities
(other than Securities replaced or repaid pursuant to Section 2.7) for
cancellation or (b) all Outstanding Securities have become due and payable
(whether at the Stated Maturity or upon acceleration, or on any Redemption
Date, or with respect to any Repurchase Date or Repurchase Event Repurchase
Date, or upon conversion) and the Company deposits with the Paying Agent or
Conversion Agent Cash, Common Stock or Applicable Stock, as applicable,
sufficient to pay all amounts due and owing on all outstanding Securities
(other than Securities replaced pursuant to Section 2.7), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 9.7, 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 Officers’ Certificate and Opinion of Counsel and at
the cost and expense of the Company.



Section 10.2 Repayment to the Company.




     The Trustee and the Paying Agent shall return to the Company upon written
request any Cash 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 unclaimed property law. After return to the Company, Holders
entitled to the Cash or securities must look to the Company for payment



54









 




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 Cash or
securities for that period commencing after the return thereof.




ARTICLE XI

AMENDMENTS




Section 11.1 Without Consent of Holders.




     The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Securityholder to:




     (a) provide for the assumption of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer, sale, lease or other disposition pursuant to Article VII;




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




     (c) surrender any right or power herein conferred upon the Company
by the Indenture;




     (d) provide for a successor Trustee with respect to the Securities;




     (e) provide for issuance of the Securities in coupon form;




     (f) make provision with respect to the conversion rights of Holders
of the Securities in accordance with this Indenture in connection with a
reclassification, consolidation, combination, merger or sale of all or
substantially all of the Company’s property and assets;




     (g) cure any ambiguity, correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is
otherwise defective, or to make any other provisions with respect to
matters or questions arising under this Indenture which the Company may
deem necessary or desirable and which shall not be inconsistent with the
provisions of this Indenture; provided, however, that such action does
not adversely affect the interests of the Holders of Securities and
further provided, however, that any change to conform this Indenture to
the description of the Securities contained in any offering memorandum or
registration statement with respect to the Securities shall be deemed not
to adversely affect the interests of the Holders of the Securities;




     (h) add any additional Events of Default with respect to all or any
of the Securities;




     (i) secure the Securities;



55









 






     (j) increase the Conversion Rate or reduce the Conversion Price;
provided, however, that such increase in the Conversion Rate or reduction
in the Conversion Price, as the case may be, is in accordance with the
terms of this Indenture or shall not adversely affect the interests of
the Holders of Securities;




     (k) supplement any of the provisions of the Indenture to such extent
as shall be necessary to permit or facilitate the discharge of the
Securities, provided that such change or modification does not adversely
affect the interests of the Holders of the Securities;




     (l) 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 such action does not adversely affect the interests of the Holders
of Securities in any material respect;




     (m) make any changes or modifications necessary to comply with the
requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the TIA; and




     (n) 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 would not adversely affect the
interests of the Holders of Securities.



Section 11.2 With Consent of Holders.




     Except as provided below in this Section 11.2, 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 or affirmative vote of the
Holders of not less than a majority of the principal amount of the Outstanding
Securities.



     Without the written consent or the affirmative vote of each Holder of
Securities affected thereby (in addition to the written consent or the
affirmative vote of the Holders of at least a majority of the principal amount
of the Outstanding Securities), an amendment or waiver under this Section 11.2
may not:




     (a) change the maturity of the principal amount of or the payment
date of any installment of interest or Liquidated Damages Amount, if any,
on, any Security;




     (b) reduce the principal amount of, or rate of interest or
Liquidated Damages Amount, if any, on, or Redemption Price, Repurchase
Price or Repurchase Event Repurchase Price of, any Security;




     (c) adversely affect the right of Holders of the Securities to
convert such Securities as provided in Article XII;




     (d) alter the manner of calculation or rate of accrual of interest
or Liquidated Damages Amount, if any, on any Security;



56









 






     (e) impair the right of any Holder to institute suit for the
enforcement of any repurchase of, payment on or with respect to, or
conversion of, any Security, including any payment on or after the stated
maturity of the Securities, in the case of redemption, on or after the
Redemption Date, or in the case of repayment at the option of the Holder,
on or after the Repurchase Date or Repurchase Event Repurchase Date;




     (f) modify the optional redemption provisions of Article III in a
manner that adversely affects the Holders of the Securities;




     (g) change the currency of payment of principal amount of, or
interest or Liquidated Damages Amount, if any, on, or the Redemption
Price, Repurchase Price or Repurchase Event Repurchase Price of, any
Security from U.S. Dollars;




     (h) adversely affect the right of Holders of the Securities to
require the Company to repurchase such Securities as provided in Articles
IV and V;




     (i) modify the obligation of the Company to maintain an agency in
The City of New York pursuant to Section 6.5;




     (j) reduce the percentage of the principal amount of the outstanding
Securities the written consent or affirmative vote of whose Holders is
required to take specific actions under the Indenture;




     (k) reduce the percentage of the principal amount of the outstanding
Securities the written consent or affirmative vote of whose Holders is
required for any waiver of any past Default provided for in this
Indenture; or




     (l) modify any of (a)-(k) above.



     It shall not be necessary for the consent of the Holders under this
Section 11.2 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 11.2 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.



     Nothing contained in this Section 11.2 shall impair the ability of the
Company and the Trustee to amend this Indenture or the Securities without the
consent of any Securityholder to provide for the assumption of the Company’s
obligations to the Holders of Securities in the case of a merger,
consolidation, conveyance, transfer, sale, lease or other disposition pursuant
to Article VII.



Section 11.3 Compliance with Trust Indenture Act.




     Every supplemental indenture executed pursuant to this Article shall
comply with the TIA.



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Section 11.4 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. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.



Section 11.5 Notation on or Exchange of Securities.




     Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article XI may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the 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.



Section 11.6 Trustee to Sign Supplemental Indentures.




     The Trustee shall sign any supplemental indenture authorized pursuant to
this Article XI 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
9.1) shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.



Section 11.7 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 XII

CONVERSION




Section 12.1 Conversion Privilege.





     (a) Subject to and upon compliance with the provisions of this
Article XII, 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 or a multiple of $1,000) of such Security into shares
of Common Stock or Applicable Stock, whichever is applicable (or, at the
Company’s option as described in this Article XII, into Cash, shares of
Common Stock,



58









 






     or any combination thereof) at the Conversion Rate in effect on the
Conversion Date only as follows:




     (i) during any fiscal quarter (beginning with the quarter
ending June 30, 2004) if the Sale Price of the Common Stock for at
least 20 consecutive Trading Days in the Measurement Period during
the immediately preceding fiscal quarter exceeds 120% of the
Conversion Price in effect on the last Trading Day of such
Measurement Period (in the event that the Conversion Price on such
last Trading Day of such Measurement Period is not the same as the
Conversion Price in effect for each of the Trading Days in such
Measurement Period, the Company shall make such adjustments as it,
in its discretion, deems appropriate in determining whether the
foregoing condition has been met);




     (ii) during any five consecutive Trading Day period
immediately following any five consecutive Trading Day period (the
“Debenture Measurement Period”) in which the average Market Price
per $1,000 principal amount of Securities during such Debenture
Measurement Period was less than 97% of the average Conversion
Value during such Debenture Measurement Period; provided, however,
that if the Sale Price of the Common Stock on the Trading Date
prior to the Conversion Date is greater than 100% of the Conversion
Price but equal to or less than 120% of the then-current Conversion
Price, then notwithstanding the provisions of Section 12.2(a) or
(g), Holders surrendering Securities for conversion will receive,
in lieu of Common Stock based on the then applicable Conversion
Rate, Cash, Common Stock, or any combination thereof, at the option
of the Company, with a value equal to the aggregate principal
amount of the Securities surrendered for conversion plus accrued
and unpaid interest and Liquidated Damages Amount, if any, as of
the Conversion Date (a “Principal Value Conversion”), as provided
in Section 12.2(h);




     (iii) at any time prior to 5:00 p.m., New York City time, on
the Business Day immediately preceding the Redemption Date, if such
Security has been called for redemption pursuant to Article III
hereof; or




     (iv) as provided in Section 12.1(b).




     The Company shall, determine at the end of each applicable period
whether the Securities shall be convertible as a result of the occurrence
of an event specified in clause (a) or (b) above and, if the Securities
shall be so convertible, the Company shall promptly deliver to the
Trustee written notice thereof. Whenever the Securities shall become
convertible pursuant to this Section 12.1, the Company or, at the
Company’s request, the Trustee in the name and at the expense of the
Company, shall notify the Holders in writing of the event triggering such
convertibility in the manner provided in Section 13.2, and the Company
shall also publicly announce such information and publish it on the
Company’s website. Any notice so given shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice.




     (b) In addition, in the event that:



59









 






     (i) A. the Company distributes to all holders of Common Stock
rights or warrants (other than pursuant to a stockholder rights
plan) entitling them to purchase Common Stock at less than the Sale
Price of the Common Stock at the time of the distribution of the
rights or warrants; or




B. the Company distributes to all holders of Common
Stock cash or other assets, debt securities or certain rights
to purchase the Company’s securities, which distribution has
a per share value as determined by the Board of Directors of
the Company exceeding 10% of the Sale Price of the Common
Stock on the Business Day immediately preceding the
declaration for such distribution;


then, in each case, the Company must notify, in writing, Holders of
Securities of the occurrence of such an event at least 20 days prior to
the Ex-Dividend Date for any such distribution. Once the Company has
given such notice, Holders may surrender their Securities for conversion
at any time until the earlier of the close of business on the Business
Day immediately preceding the Ex-Dividend Date or the date of
announcement by the Company that the distribution will not take place. No
Holder may convert its Securities pursuant to this Section 12.1(b) if
such Holder may participate in the distribution without conversion.





     (ii) the Company becomes party to a consolidation, merger or
binding share exchange pursuant to which the Common Stock of the
Company would be converted into cash, securities or other property,
a Holder may surrender the Securities for conversion at any time
from and after the date which is 15 days prior to the anticipated
effective date of the transaction until 15 days after the actual
date of the transaction.




     (iii) if the Company becomes party to a consolidation, merger
or binding share exchange pursuant to which the Common Stock of the
Company would be converted into cash, securities or other property,
then at the effective time of the transaction, the right to convert
the Securities into Common Stock shall be changed into a right to
convert such Securities into the kind and amount of cash,
securities or other property which the Holder would have received
if the Holder had converted such Securities immediately prior to
the transaction. If the transaction constitutes a Repurchase Event,
the Holder shall have the rights set forth in Article V above.




     (iv) if any person or group after the first issuance of
Securities becomes the beneficial owner (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or any other
method) of the Company’s voting stock representing 50% or more of
the total voting power of all of the Company’s outstanding classes
of voting stock or has the power, directly or indirectly, to elect
a majority of the members of the board of directors of the Company,
a holder may surrender the Securities for conversion at any time
from and after the date that is 15 days prior to the anticipated
effective date of the transaction or event until 15 days after



60









 






the actual date of such transaction or event. If the
transaction constitutes a Repurchase Event, the Holder shall have
the rights set forth in Article V above.


Section 12.2 Conversion Procedure; Conversion Rate; Fractional Shares; Payment in Cash in lieu of Common Stock.





     (a) Each Security shall be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares (calculated to
the nearest 1/100th of a share) of Common Stock. Subject to the Company’s
rights pursuant to Section 12.2(g) and (h), the Security will be
converted into shares of Common Stock at the Conversion Rate therefor.




     Notwithstanding any other provision of this Indenture or the
Securities, all Holders’ rights with respect to the conversion of the
Securities and the Company’s obligation to deliver shares of Common Stock
(or Applicable Stock, if applicable) at the Conversion Rate upon such
conversion (the “Conversion Obligation”) are subject, in their entirety,
to the Company’s right, in its sole discretion, to elect to satisfy its
Conversion Obligation as provided in Section 12.2(g) or, with respect to
a Principal Value Conversion, as provided in Section 12.2(h).




     No payment or adjustment shall be made in respect of dividends on
the Common Stock or accrued interest (but not accrued and unpaid
Liquidated Damages Amount, if any) on a converted Security, except as
described in Section 12.9 hereof. In accordance with Section 3(b) of the
Registration Rights Agreement, any accrued but unpaid Liquidated Damages
Amount with respect to a Security delivered for conversion to but not
including the Conversion Date shall be paid to the Holder who delivered
such Security for conversion on or promptly following the Conversion
Date.




     The Company shall not issue any fraction of a share of Common Stock
in connection with any conversion of Securities, but instead shall,
subject to Section 12.3(g) hereof, make a Cash payment (calculated to the
nearest cent) equal to such fraction multiplied by the Sale Price of the
Common Stock on the last Trading Day prior to the date of conversion.




     Notwithstanding the foregoing, a Security in respect of which a
Holder has delivered a Repurchase Notice or Repurchase Event Repurchase
Notice exercising such Holder’s option to require the Company to
repurchase such Security may be converted only if such notice of exercise
is withdrawn in accordance with Sections 4.3 or 5.3 hereof, as the case
may be, prior to the close of business on the Business Day immediately
preceding the applicable Repurchase Date or Repurchase Event Repurchase
Date, as the case may be.




     (b) Before any Holder of a Security shall be entitled to convert the
same into Common Stock (or at the Company’s option, Cash, shares of
Common Stock or any combination thereof), such Holder shall, in the case
of Securities issued in global form, comply with the procedures of the
Depositary in effect at that time, 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 shall give written
notice to the



61









 






Company at said office or place in the form of the Conversion Notice
attached to the Security (the “Conversion Notice”) that such Holder
elects to convert the same and shall state in writing therein the
principal amount of Security to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates
for Common Stock to be issued.




     Before any such conversion, a Holder also shall pay all funds
required, if any, relating to interest on the Securities, as provided in
Section 12.9, and all taxes or duties, if any, as provided in Section
12.8.




     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 which
shall be deliverable upon conversion shall be computed on the basis of
the aggregate principal amount of the Security (or specified portions
thereof to the extent permitted thereby) so surrendered.




     If shares of Common Stock to be issued upon conversion of a
Restricted Security are to be issued in the name of a Person other than
the Holder of such Restricted Security, such Holder must deliver to the
Conversion Agent a certification in substantially the form set forth in a
Transfer Certificate dated the date of surrender of such Restricted
Security and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Restricted Security. The
Company shall not be required to issue Common Stock upon conversion of
any such Restricted Security to a Person other than the Holder if such
Restricted Security is not so accompanied by a properly completed
certification, and the Registrar shall not be required to register Common
Stock upon conversion of any such Restricted Security in the name of a
Person other than the Holder if such Restricted Security is not so
accompanied by a properly completed certification.




     (c) A Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Security for
conversion as provided above (such date, the “Conversion Date” for such
Security), and the person or persons entitled to receive any Common Stock
issuable upon such conversion shall be treated for all purposes as the
record Holder or Holders of such Common Stock as of the close of business
on such date. Upon conversion, all obligations under the Securities so
converted will be deemed satisfied, including with respect to any accrued
and unpaid interest, but not with respect to accrued and unpaid
Liquidated Damages Amount, if any, which shall be paid upon conversion in
accordance with this Section 12.2.




     (d) Delivery of Common Stock and Cash in respect of conversion
and/or accrued and unpaid Liquidated Damages Amount, if any, to a Holder
of a Security upon conversion of such Security shall be accomplished by
delivery to the Conversion Agent of certificates for the relevant number
of shares, other than in the case of Holders of Common Stock in
book-entry form with the Depository, which shares will be delivered in
accordance with the Depository’s customary practices and delivery of Cash
in respect of conversion and/or Liquidated Damages Amount, if any, to the
Conversion Agent or the Depository, as applicable, for payment to the
Holder.



62









 






     (e) In case any Certificated Security shall be surrendered for
partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to, upon the written order of, the Holder of the
Security so surrendered, without charge to such Holder (subject to the
provisions of Section 12.8 hereof), a new Security or Securities in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Certificated Securities.




     (f) If a holder exercises its right to require the Company to
repurchase the Securities as described in Article IV or Article V, such
Holder may convert its Securities as provided above only if it withdraws
its applicable Repurchase Notice or Repurchase Event Repurchase Notice
and converts its Securities prior to the close of business on the
business day immediately preceding the applicable Repurchase Date.




     (g) If a Holder elects to convert all or any portion of a Security
into shares of Common Stock as set forth in this Section 12.02 and the
Company receives such Holder’s Notice of Conversion on or prior to the
day that is 10 days prior to the Stated Maturity, or with respect to
Securities called for redemption pursuant to Article III hereof, the
applicable Redemption Date (the “Final Notice Date”), the Company may
choose to satisfy all or any portion of the Conversion Obligation in
cash. Upon such election, the Company will notify such Holder through the
Trustee of the dollar amount to be satisfied in cash (which must be
expressed either as 100% of the Conversion Obligation or as a fixed
dollar amount) at any time on or before the date that is two Business
Days following the Conversion Agent’s receipt of the Notice of Conversion
(such period, the “Cash Settlement Notice Period”). If the Company elects
to pay cash for any portion of the shares of Common Stock otherwise
issuable to the Holder, the Holder may retract the Notice of Conversion
at any time during the two Business Day period beginning on the day after
the final day of the Cash Settlement Notice Period (the “Conversion
Retraction Period”); no such retraction can be made (and a Notice of
Conversion shall be irrevocable) if the Company does not elect to deliver
cash in lieu of shares of Common Stock (other than cash in lieu of
fractional shares). If the Company elects to satisfy all or a portion of
its Conversion Obligations in cash and the Notice of Conversion has not
been retracted, then settlement (in cash or a combination of cash and
shares of Common Stock or Applicable Stock, if applicable) will occur on
the third Business Day following the Cash Settlement Averaging Period. If
the Company elects to satisfy the entire Conversion Obligation in shares
of Common Stock, then settlement will occur on the third Business Day
following the Conversion Date. With respect to any Notice of Conversion
received by the Company prior to the Final Notice Date and not retracted
pursuant to this Section 12.2(g), the “Conversion Settlement
Distribution” for any Security subject to such Notice of Conversion shall
consist of cash, Common Stock or a combination thereof, as selected by
the Company as set forth below:




     (i) if the Company elects to satisfy the entire Conversion
Obligation in shares of Common Stock, the Conversion Settlement
Distribution shall be a number of shares of Common Stock for each
$1,000 principal amount of the Securities to be converted equal to
the Conversation Rate, plus cash for any fractional shares pursuant
to Section 12.1(a);



63









 






     (ii) if the Company elects to satisfy the entire Conversion
Obligation in Cash (other than with respect to a Principal Value
Conversion), the Conversion Settlement Distribution shall be Cash
for each $1,000 principal amount of the Senior Notes in an amount
equal to the product of:




     A. the applicable Conversion Rate, and




     B. the average of the Sale Price of the Common Stock for
the 10 Trading Days beginning on the Trading Day immediately
following the final day of the Conversion Retraction Period
(the “Cash Settlement Averaging Period”); and




     (iii) if the Company elects to satisfy a fixed portion (other
than 100%) of the Conversion Obligation in Cash (other than with
respect to a Principal Value Conversion), the Conversion Settlement
Distribution shall consist of such Cash amount (“Cash Amount”) and
a number of shares, for each $1,000 principal amount of the
Securities, equal to the applicable Conversion Rate minus the
number of shares of Common Stock equal to the Cash Amount divided
by the average Sale Price of the Common Stock during the Cash
Settlement Averaging Period (plus cash for any fractional shares
pursuant to Section 12.2(a)); provided, however, the number of
shares of Common Stock shall not be less than zero.




     (iv) At any time on or before any Final Notice Date, the
Company will notify the Trustee in writing whether it intends to
satisfy all or any portion of the Conversion Obligation with
respect to conversions of Securities for which the Company receives
a Notice of Conversion after such Final Notice Date and the dollar
amount to be satisfied in cash (which must be expressed either as
100% or as a fixed dollar amount). In such case, the applicable
Conversion Settlement Distribution will be computed in the same
manner as set forth in the first paragraph of this Section 12.2(g)
except that the Cash Settlement Averaging Period shall be the 10
Trading Days beginning on the Trading Day following the Company’s
receipt of the Notice of Conversion, and settlement (in cash or a
combination of cash and shares of Common Stock or Applicable Stock,
if applicable) will occur on the third Business Day following the
final day of such Cash Settlement Averaging Period (which date
could be after Stated Maturity).




     (v) Notwithstanding anything to the contrary in the Indenture,
at any time prior to Stated Maturity, the Company may irrevocably
elect, in its sole discretion without the consent of the Holders of
the Securities, by written notice to the Trustee and the Holders of
the Securities, to satisfy a portion of the Conversion Obligation
for all Securities for conversion after the date of such election
(the “Election Date”) by paying in Cash up to 100% of the principal
amount of the Securities so converted. After making such an
election, the Company shall satisfy the remainder of the Conversion
Obligation in Common Stock, to the extent the Conversion Obligation
exceeds the principal amount or the portion of the principal amount
of the Securities the Company elects to pay in Cash. In the event
that the Company receives a Notice of Conversion after the



64









 






Election Date: the Notice of Conversion will not be
retractable; the Cash Settlement Averaging Period shall be the 10
Trading Day period beginning on the day after the Company’s receipt
of the Notice of Conversion; and the Conversion Settlement
Distribution for each $1,000 principal amount of the Securities
shall consist of (i) such cash amount (“Election Amount”) equal to
the applicable Conversion Rate multiplied by the average Closing
Price of Common Stock during the Cash Settlement Averaging Period
(provided, however, that the Election Amount will not be more than
100% of the principal amount of a Security) and (ii) a number of
shares of Common Stock equal to the applicable Conversation Rate
minus the Election Amount divided by the average Sale Price of the
Common Stock during the Cash Settlement Averaging Period.




     (h) In the event a Holder surrenders Securities for conversion and
it is a Principal Value Conversion, the Company shall notify such Holder
by the second Trading Day following the Conversion Date (i) whether the
Company will pay all or any portion of the principal amount of the
Securities surrendered for conversion plus accrued and unpaid interest
and Liquidated Damage Amount, if any thereon in Cash, Common Stock or a
combination of Cash and Common Stock and (ii) what percentage of each
will be paid. Any Common Stock to be delivered upon a Principal Value
Conversion will be valued at the average Sale Price for the ten Trading
Days commencing on the Trading Day following the Conversion Date (the
“Principal Value Conversion Market Price”). The Company shall (y) pay
Holders any portion of the principal amount of the Securities surrendered
for conversion plus accrued and unpaid interest and Liquidated Damage
Amount, if any thereon to be paid in Cash and (ii) deliver shares of
Common Stock with respect to any portion of the principal amount of the
Securities surrendered for conversion plus accrued and unpaid interest
and Liquidated Damage Amount, if any thereon to be paid in Common Stock,
in each case no later than the third Business Day following the
determination of the Principal Value Conversion Market Price.



Section 12.3 Adjustment of Conversion Rate.




     The Conversion Rate shall be adjusted from time to time as follows:




     (a) In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, pay a dividend or make a
distribution in shares of Common Stock to all holders of its outstanding shares of Common Stock, then the Conversion Rate in effect at the opening
of business on the date next following the Record Date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by multiplying such Conversion Rate by a
fraction:




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



65









 






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




     Such increase shall become effective immediately after the opening
of business on the day following the Record Date fixed for such
determination.




     If any dividend or distribution of the type described in this
Section 12.3(a) is declared but not so paid or made, the Conversion Rate
shall again be adjusted to the Conversion Rate which would then be in
effect if such dividend or distribution had not been declared.




     (b) In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, subdivide or reclassify its
outstanding shares of Common Stock into a greater number of shares of
Common Stock, then the Conversion Rate in effect at the opening of
business on the day following the day upon which such subdivision or
reclassification becomes effective shall be proportionately increased,
and conversely, in case the Company shall, at any time or from time to
time while any of the Securities are outstanding, combine or reclassify
its outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then the Conversion Rate in effect at the opening of
business on the day following the day upon which such combination or
reclassification becomes effective shall be proportionately decreased. In
each such case, the Conversion Rate shall be adjusted by multiplying such
Conversion Rate by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding immediately after giving effect to
such subdivision, combination or reclassification and the denominator of
which shall be the number of shares of Common Stock outstanding
immediately prior to such subdivision, combination or reclassification.
Such increase or reduction, as the case may be, shall become effective
immediately after the opening of business on the day following the day
upon which such subdivision, combination or reclassification becomes
effective.




     (c) In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, issue rights or warrants
(other than pursuant to a shareholders rights plan) exercisable for a
period less than or equal to 60 days (other than any rights or warrants
referred to in Section 12.3(d)), to all holders of its shares of Common
Stock entitling them to subscribe for or purchase shares of Common Stock
(or securities convertible into or exchangeable or exercisable for shares
of Common Stock), at a price per share (or having a conversion, exchange
or exercise price per share) less than the Sale Price of the Common Stock
on the Trading Day immediately preceding the date of the announcement of
such issuance (treating the conversion, exchange or exercise price per
share of the securities convertible into or exchangeable or exercisable
for Common Stock as equal to the quotient of (y) the sum of (i) the price
for a unit of the security convertible into or exchangeable or
exercisable for Common Stock and (ii) any additional consideration
initially payable upon the conversion, exchange or exercise of such
security into Common Stock divided by (z) the number of shares of Common
Stock initially underlying such convertible, exchangeable or exercisable
security), then the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by



66









 






     multiplying the Conversion Rate in effect at the opening of business
on the date after such date of announcement by a fraction:




     (i) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date of
announcement, plus the total number of additional shares of Common
Stock so offered for subscription or purchase (or into which the
convertible, exchangeable or exercisable securities so offered are
convertible, exchangeable or exercisable); and




     (ii) the denominator of which shall be the number of shares of
Common Stock outstanding on the close of business on the date of
announcement, plus the number of shares (or convertible,
exchangeable or exercisable securities) which the aggregate
offering price of the total number of shares (or convertible,
exchangeable or exercisable securities) so offered for subscription
or purchase (or the aggregate conversion, exchange or exercise
price of the convertible securities so offered) would purchase at
the Sale Price of the Common Stock on the Business Day immediately
preceding the date of the announcement of such issuance (determined
by multiplying such total number of shares so offered by the
exercise price of such rights or warrants and dividing the product
so obtained by such Sale Price).




     Such adjustment shall become effective immediately after the opening
of business on the day following the date of announcement of such
issuance.




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




     (d) (i) In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, by dividend or otherwise,
distribute to all holders of its shares of Common Stock (including any
such distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation and the Common Stock is
not changed or exchanged), shares of its Capital Stock (other than any



67









 






dividends or distributions to which Section 12.3(a) applies),
evidences of its Indebtedness or other non-Cash assets, including
securities, but excluding (x) any rights or warrants referred to in
Section 12.3(c), (y) dividends or distributions of stock referred to in
Section 12.3(a) and (z) dividends and distributions paid exclusively in
Cash (such capital stock, evidence of its indebtedness, other non-Cash
assets or securities being distributed hereinafter in this Section
12.3(d) called the “distributed assets”), then, in each such case,
subject to the other provisions of this Section 12.3(d), the Conversion
Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect immediately prior
to the close of business on the Record Date with respect to such
distribution by a fraction:




     A. the numerator of which shall be the Current Market
Price; and




     B. the denominator of which shall be such Current Market
Price, less the Fair Market Value on such date of the portion
of the distributed assets so distributed applicable to one
share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding on the Record Date)
(determined as provided in Section 12.3(f)).




     Such increase shall become effective immediately prior to the
opening of business on the day following the Record Date for such
distribution. 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 which would then be in effect if such dividend or
distribution had not been declared.




     (ii) If the Board of Directors determines the Fair Market
Value of any distribution for purposes of this Section 12.3(d) by
reference to the actual or when issued trading market for any
distributed assets comprising all or part of such distribution, it
must in doing so consider the prices in such market over the same
period (the “Reference Period”) used in computing the Current
Market Price pursuant to Section 12.3(f) to the extent possible,
unless the Board of Directors determines in good faith that
determining the Fair Market Value during the Reference Period would
not be in the best interest of the Holders.




     (iii) In the event any such distribution consists of shares of
capital stock of, or similar equity interests in, one or more of
the Company’s Subsidiaries (a “Spin-Off”), the Fair Market Value of
the securities to be distributed shall equal the average of the
closing sale prices of such securities on the principal securities
market on which such securities are traded for the ten consecutive
Trading Days commencing on and including the sixth Trading Day of
those securities after the effectiveness of the Spin-Off, and the
Current Market Price shall be measured for the same period. In the
event, however, that an underwritten initial public offering of the
securities in the Spin-Off occurs simultaneously with the Spin-Off,
Fair Market Value of the securities distributed in the Spin-Off
shall mean the initial public offering price of such securities and
the Current Market Price shall mean the Sale Price for the Common
Stock on the same Trading Day.



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     (iv) Rights or warrants distributed by the Company to all
holders of its shares of Common Stock entitling them to subscribe
for or purchase shares of the Company’s Capital Stock (either
initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events
(“Trigger Event”), (x) are deemed to be transferred with such shares of Common Stock, (y) are not exercisable and (z) are also
issued in respect of future issuances of shares of Common Stock
shall be deemed not to have been distributed for purposes of this
Section 12.3(d) (and no adjustment to the Conversion Rate under
this Section 12.3(d) will be required) until the occurrence of the
earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or
warrant shall become exercisable to purchase different distributed
assets, evidences of indebtedness or other assets, or entitle the
holder to purchase a different number or amount of the foregoing or
to purchase any of the foregoing at a different purchase price,
then the occurrence of each such event shall be deemed to be the
date of issuance and record date with respect to a new right or
warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof). Pursuant to rights
issued under any Company shareholder’s rights plan, if holders of
the Securities exercising the right of conversion after the date
the rights separate from the underlying Common Stock are not
entitled to receive the rights that would otherwise be attributable
to the shares of Common Stock received upon conversion, the
Conversion Rate will be adjusted as though the rights were being
distributed to holders of Common Stock on the date of such
separation. If such an adjustment is made and the rights are later
redeemed, invalidated or terminated, then a corresponding reversing
adjustment will be made to the conversion rate on an equitable
basis.




     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 paragraph) with
respect thereto, that resulted in an adjustment to the Conversion
Rate under this Section 12.3(d):




     A. in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise
by any holders thereof, the Conversion Rate shall be
readjusted upon such final 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 of
shares of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or
warrants), made to all holders of shares of Common Stock as
of the date of such redemption or repurchase; and




     B. in the case of such rights or warrants which shall
have expired or been terminated without exercise, the
Conversion Rate shall be readjusted as if such rights and
warrants had never been issued.



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     (v) For purposes of this Section 12.3(d) and Sections 12.3(a),
12.3(b) and 12.3(c), any dividend or distribution to which this
Section 12.3(d) is applicable that also includes (x) shares of
Common Stock, (y) a subdivision, combination or reclassification of
shares of Common Stock to which Section 12.3(b) applies or (z)
rights or warrants to subscribe for or purchase shares of Common
Stock or securities convertible into or exercisable or exchangeable
for Common Stock to which Section 12.3(c) applies (or any
combination thereof), shall be deemed instead to be:




     A. a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or
warrants, other than such shares of Common Stock, such
subdivision or combination or such rights or warrants or
securities convertible into or exercisable or exchangeable
for Common Stock to which Sections 12.3(a), 12.3(b) and
12.3(c) apply, respectively (and any Conversion Rate increase
required by this Section 12.3(d) with respect to such
dividend or distribution shall then be made), immediately
followed by




     B. a dividend or distribution of such shares of Common
Stock, such subdivision or combination or such rights or
warrants or securities convertible into or exercisable or
exchangeable for Common Stock (and any further Conversion
Rate increase required by Sections 12.3(a), 12.3(b) and
12.3(c) with respect to such dividend or distribution shall
then be made), except:




     (1) the Record Date of such dividend or
distribution shall be substituted as (x) “the date
fixed for the determination of stockholders entitled to
receive such dividend or other distribution,” “Record
Date fixed for such determinations” and “Record Date”
within the meaning of Section 12.3(a), (y) “the day
upon which such subdivision becomes effective” and “the
day upon which such combination becomes effective”
within the meaning of Section 12.3(b), and (z) as “the
date fixed for the determination of stockholders
entitled to receive such rights or warrants,” “the
Record Date fixed for the determination of the
stockholders entitled to receive such rights or
warrants” and such “Record Date” within the meaning of
Section 12.3(c); and




     (2) 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
12.3(a) and any reduction or increase in the number of
shares of Common Stock resulting from such subdivision
or combination shall be disregarded in connection with
such dividend or distribution.



70









 






     (e) (i) In case the Company shall, by dividend or otherwise, at any
time any Securities are outstanding distribute (a “Triggering
Distribution”) to all or substantially all holders of its Common Stock
Cash, the Conversion Rate shall be increased so that the same shall equal
the rate determined by multiplying such Conversion Rate in effect on the
Record Date for such Triggering Distribution by a fraction of which the
numerator shall be the Current Market Price per share of the Common Stock
on the Record Date, and the denominator shall be the Current Market Price
per share of the Common Stock on the Record Date less the aggregate
amount of cash so distributed applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock
outstanding on the Record Date), such increase to become effective
immediately prior to the opening of business on the day following the
date on which the Triggering Distribution is paid. It is expressly
understood that a stock buyback, repurchase or similar transaction or
program shall in no event be considered a Triggering Distribution for
purposes of this Section 12.3(e)(i).




   (ii) In case the Company or any of its Subsidiaries shall, at
any time or from time to time while any of the Securities are
outstanding, make any tender offer or exchange offer for all or any
portion of the shares of Common Stock for Cash or other
consideration, to the extent that the aggregate amount of Cash and
the Fair Market Value, as of the last date on which tenders or
exchanges may be made pursuant to such tender offer or exchange
offer, of any other consideration paid in respect of such tender
offer or exchange offer (determined on a per share basis) exceeds
the Closing Sale Price per share of Common Stock on the trading day
next succeeding the last date on which tenders or exchange may be
made pursuant to such tender or exchange offer then the Conversion
Rate shall be adjusted such that immediately after the close of
business on the date an Excess Amount Per Share is paid or
distributed, 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 payment by a fraction:




     A. the numerator of which shall be equal to the Current
Market Price on the Record Date; and




     B. the denominator of which shall be equal to the
Current Market Price on such date minus such Excess Amount
Per Share.




   (iii) In case someone other than the Company or one of its
Subsidiaries makes a payment of Cash or other consideration in
respect of a tender offer or exchange offer in which:




     A. as of the closing date of the offer, the Company’s
Board of Directors is not recommending rejection of the
offer;




     B. the tender offer or exchange offer is for an amount
that increases the offeror’s ownership of the Company’s
Common Stock to more than 10% of the total shares of Common
Stock outstanding; and



71









 






     C. the aggregate amount of such Cash and the Fair Market
Value, as of the expiration of such tender offer or exchange
offer, of any such other consideration paid in respect of
such tender offer or exchange offer (determined on a per
share basis) exceeds the closing Sale Price per share of the
Common Stock on the trading day next succeeding the last date
on which tenders or exchanges may be made pursuant to such
tender or exchange offer;




	 	 	the Conversion Rate shall be adjusted such that immediately after
the close of business on the date an Excess Amount Per Share is
paid or distributed, 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 payment by a fraction:






     (1) the numerator of which shall be equal to the
Current Market Price on the Record Date; and




     (2) the denominator of which shall be equal to the
Current Market Price on such date minus such Excess
Amount Per Share.



	 	 	Provided, however, no adjustment will be made if as of the closing
date of such offer, the offering documents disclose a plan or an
intention to cause the Company to engage in a consolidation or
merger or sale of substantially all of the Company’s assets, the
offeror accepts the tender of at least 50% of the outstanding
Common Stock at the expiration of the offer, and such merger,
consolidation or asset sale is completed within 120 days of the
expiration of such tender offer or exchange offer, and further
provided, that if the merger, consolidation or asset sale is not
completed by such time, the conversion rate will be adjusted,
retroactive to the date the tender offer or exchange offer expired.








     (iv) Notwithstanding the foregoing provisions of this Section
12.3(e), in no event will the Conversion Rate as adjusted pursuant
to this Section 12.3(e) exceed 20.4248 shares per $1,000 principal
amount of Securities (as such Conversion Rate may be adjusted on a
proportional basis for any other adjustment made pursuant to
Section 12.3(a)-(d)).




     (f) For purposes of this Article XII, the following terms shall have
the meanings indicated:




     (i) “Current Market Price” on any date means the average of
the daily Sale Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to such date; provided,
however, that if the “ex” date (as hereinafter defined) for any
event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Rate
pursuant to Section 12.3(a), (b), (c), (d) or (e) occurs during
such ten consecutive Trading Days, “Current Market Price” shall be
calculated for such period in a



72









 






manner determined conclusively in good faith by the Board of
Directors to reflect the impact of such event on the Closing Price
of the Common Stock during such period.



     For purposes of this paragraph, the term “ex” date, when used:




     (x) with respect to any issuance or distribution, means the
first date on which the shares of Common Stock trade regular way on
the relevant exchange or in the relevant market from which the Sale
Price was obtained without the right to receive such issuance or
distribution;




     (y) with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the shares of Common
Stock trade regular way on such exchange or in such market after
the time at which such subdivision or combination becomes
effective; and




     (z) with respect to any tender or exchange offer, means the
first date on which the shares of Common Stock trade regular way on
such exchange or in such market after the expiration of such offer.




     Notwithstanding the foregoing, whenever successive adjustments to
the Conversion Rate are called for pursuant to this Section 12.3, such
adjustments shall be made to the Current Market Price as may be necessary
or appropriate to effectuate the intent of this Section 12.3 and to avoid
unjust or inequitable results as determined in good faith by the Board of
Directors.




     (ii) “Excess Amount Per Share” shall mean, with respect to
Section 12.3(e)(ii) or (iii), the extent that the aggregate amount
of Cash and the Fair Market Value, as of the expiration of any
tender offer or exchange offer, of any other consideration paid in
respect of such tender offer or exchange offer (determined on a per
share basis) exceeds the Closing Sale Price per share of Common
Stock on the trading day next succeeding the last date on which
tenders or exchange may be made pursuant to such tender or exchange
offer.




     (iii) “Fair Market Value” shall mean the amount which a
willing buyer would pay a willing seller in an arm’s length
transaction (as determined in good faith by the Board of Directors,
whose good faith determination shall be conclusive).




     (iv) “Record Date” shall mean (except as expressly provided
elsewhere in this Section 12.3):




     (w) with respect to Section 12.3(a), the date fixed for
determination of stockholders entitled to receive the Common
Stock issued in such dividend or distribution;




     (x) with respect to Section 12.3(d), the date fixed for
determination of stockholders entitled to receive the
distributed assets;



73









 






     (y) with respect to Section 1 2.3(e)(i), the date fixed
for determination of stockholders entitled to receive the
Cash paid in such dividend or distribution; and




     (z) with respect to Sections 12.3(e)(ii) and (iii), the
last date on which tenders or exchanges may be made pursuant
to such tender offer or exchange offer;




     in each case, whether such date is fixed by the Board of Directors
or by statute, contract or otherwise.




     (g) The Company shall be entitled at its election to make such
additional increases in the Conversion Rate, in addition to those
required by Sections 12.3(a), (b), (c), (d) and (e), as shall be
necessary in order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock or
any issuance of rights or warrants referred to above shall not be taxable
to the holders of Common Stock for United States federal income tax
purposes.




     (h) To the extent permitted by applicable law, the Company may, from
time to time, increase the Conversion Rate by any amount for any period
of time, if such period is at least 20 days, the Board of Directors
determines that the increase in the Conversion Rate is in the best
interest of the Company, and the increase is irrevocable during the
period. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Trustee and each Holder
at the address of such Holder as it appears in the register of the
Securities maintained by the Registrar, at least 15 days prior to the
date the increased Conversion Rate takes effect, a notice of the increase
stating the increased Conversion Rate and the period during which it will
be in effect.




     (i) In any case in which this Section 12.3 shall require that any
adjustment be made effective as of or retroactively immediately following
a Record Date, the Company may elect to defer (but only for five Trading
Days following the filing of the statement referred to in Section 12.5)
issuing to the Holder of any Securities converted after such Record Date
the shares of Common Stock issuable upon such conversion over and above
the shares of Common Stock issuable upon such conversion on the basis of
the Conversion Rate prior to adjustment; provided, however, that the
Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder’s right to receive such additional
shares upon the occurrence of the event requiring such adjustment.




     (j) All calculations under this Section 12.3 shall be made to the
nearest cent or one-hundredth of a share, with one-half cent and 0.005 of
a share, respectively, being rounded upward. Notwithstanding any other
provision of this Section 12.3, the Company shall not be required to make
any adjustment of the Conversion Rate unless such adjustment would
require an increase or decrease of at least 1% of such rate. Any lesser
adjustment shall be carried forward and shall be made at the time of and
together with the next subsequent adjustment which, together with any
adjustment or adjustments so carried forward, shall amount to an increase
or decrease of at least 1% in such rate. Any



74









 






adjustments under this Section 12.3 shall be made successively
whenever an event requiring such an adjustment occurs.




     (k) In the event that at any time, as a result of an adjustment made
pursuant to this Section 12.3, the Holder of any Securities thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of the Company other than shares of Common Stock into which the
Securities originally were convertible, the Conversion Rate of such other
shares so receivable upon conversion of any such Security shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common
Stock contained in subparagraphs (a) through (j) of this Section 12.3,
and the provision of Sections 12.1, 12.2 and 12.4 through 12.9 with
respect to the Common Stock shall apply on like or similar terms to any
such other shares and the good faith determination of the Board of
Directors as to any such adjustment shall be conclusive.




     (l) No adjustment shall be made pursuant to this Section 12.3 if the
Holders of the Securities may participate in the transaction that would
otherwise give rise to an adjustment pursuant to this Section 12.3.



Section 12.4 Consolidation or Merger of the Company.




     If any of the following events occurs, namely:




     (a) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or
combination) as a result of which all of the holders of Common Stock
shall be entitled to receive stock, securities or other property or
assets (including Cash or any combination thereof) with respect to or in
exchange for all of their Common Stock;




     (b) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which
all of the holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including Cash or any combination
thereof) with respect to or in exchange for all of their Common Stock; or




     (c) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other person as a
result of which all of the holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including Cash or
any combination thereof) with respect to or in exchange for all of their
Common Stock;


the Company or the successor or purchasing person, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture, if such supplemental indenture is then required to so comply;
provided, however, the Trustee may, but shall not be obligated to, execute a
supplemental indenture which affects the Trustee’s own rights, duties,
liabilities or immunities) providing that the Holder’s right to convert a
Security into Common Stock shall be changed to a




75









 







right to convert a Security into the kind and amount of shares of stock and
other securities or property or assets (including Cash) which such Holder would
have been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had
such Securities been converted into Common Stock immediately prior to such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming such holder of Common Stock did not
exercise its rights of election, if any, as to the kind or amount of
securities, Cash or other property receivable upon such merger, consolidation,
statutory share exchange, sale or conveyance (provided, that if the kind or
amount of securities, Cash or other property receivable upon such merger,
consolidation, statutory 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 12.4, the kind and amount of securities, Cash or other property
receivable upon such merger, consolidation, statutory 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). 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 XII. If, in the case of any such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, the
stock or other securities and assets 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.




     The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Securities maintained by the Registrar, within
20 days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.



     The above provisions of this Section 12.4 shall similarly apply to
successive reclassifications, changes, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.



     If this Section 12.4 applies to any event or occurrence, Section 12.3 shall not apply.



Section 12.5 Notice of Adjustment.




     Whenever an adjustment in the Conversion Rate with respect to the
Securities is required:




     (a) the Company shall forthwith place on file with the Trustee and
any Conversion Agent for such securities a certificate of the Treasurer
of the Company, stating the adjusted Conversion Rate determined as
provided herein and setting forth in reasonable detail such facts as
shall be necessary to show the reason for and the manner of computing
such adjustment; and



76









 






     (b) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be given by
the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company, to each Holder in the manner provided in
Section 13.2 hereof. Any notice so given shall be conclusively presumed
to have been duly given, whether or not the Holder receives such notice.



Section 12.6 Notice in Certain Events.




     In case:




     (a) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the sale or conveyance to another Person or entity or group of Persons or
entities acting in concert as a partnership, limited partnership,
syndicate or other group (within the meaning of Rule 13d-3 under the
Exchange Act) of all or substantially all of the property and assets of
the Company; or




     (b) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or




     (c) of any action triggering an adjustment of the Conversion Rate
referred to in clauses (y) or (z) below;




	 	 	then, in each case, the Company shall cause to be filed with the Trustee
and the Conversion Agent, and shall cause to be given, to the Holders of
the Securities in the manner provided in Section 13.2 hereof, at least 15
days prior to the applicable date hereinafter specified, a notice
stating:






     (y) the date on which a record is to be taken for the purpose
of any distribution or grant of rights or warrants or other
securities triggering an adjustment to the Conversion Rate pursuant
to this Article XII, or, if a record is not to be taken, the date
as of which the holders of record of Common Stock entitled to such
distribution, rights or warrants or other securities are to be
determined, or




     (z) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up
described under clauses (a), (b) and (c) of Section 12.4 that
changes a Holder’s right to convert its Common Stock to a right to
convert into another kind and amount of securities or other
property or assets is expected to become effective, and the date as
of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification,
consolidation, merger sale, conveyance, dissolution, liquidation or
winding up.



     Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (a), (b) or (c) of
this Section 12.6.



77









 





Section 12.7 Company To Reserve Stock: Registration; Listing.





     (a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of
Common Stock for the purpose of effecting the conversion of the
Securities, such number of its duly authorized shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
Securities then outstanding into such Common Stock at any time (assuming
that, at the time of the computation of such number of shares or
securities, all such Securities would be held by a single Holder). The
Company covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and
nonassessable and free from all liens and charges and, except as provided
in Section 12.8, taxes with respect to the issue thereof.




     (b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval
of any governmental authority before such shares or securities may be
issued upon such conversion, the Company will use its commercially
reasonable efforts to cause such shares or securities to be duly
registered or approved, as the case may be. The Company further covenants
that so long as the Common Stock shall be listed on the NYSE, the Company
will use its commercially reasonable efforts, if permitted by the rules
of the NYSE, to quote and keep quoted all Common Stock issuable upon
conversion of the Securities, and the Company will use its commercially
reasonable efforts to (i) list the shares of Common Stock required to be
delivered upon conversion of the Securities prior to such delivery upon
any other national securities exchange upon which the outstanding Common
Stock is listed at the time of such delivery, or (ii) cause the shares of
Common Stock required to be delivered upon conversion of the Securities
prior to such delivery to be quoted on the Nasdaq National Market or the
Nasdaq SmallCap Market or, if the shares of Common Stock are not quoted
on the Nasdaq National Market or Nasdaq SmallCap Market, to be reported
by the National Association of Securities Dealers Automated Quotation
System or by the National Quotation Bureau Incorporated.



Section 12.8 Taxes on Conversion.




     The issue of stock certificates on conversion of Securities shall be made
without charge to the converting Holder for any documentary, stamp or similar
issue or transfer taxes in respect of the issue thereof, and the Company shall
pay any and all documentary, stamp or similar issue or transfer taxes that may
be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock or the portion, if
any, of the Securities which are not so converted in a name other than that in
which the Securities so converted were registered, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of such tax or has established to the
satisfaction of the Company that such tax has been paid.



78









 





Section 12.9 Conversion After Record Date.




     Except as provided in this Section 12.9, a converting Holder of Securities
shall not be entitled to receive any accrued and unpaid interest (exclusive of
accrued and unpaid Liquidated Damages Amount, if any, which in any event shall
be paid upon conversion in accordance with Section 12.2) on any such Securities
being converted. By delivery to the Holder of the number of shares of Common
Stock or other consideration issuable or payable upon conversion in accordance
with this Article XII, any accrued and unpaid interest on such Securities will
be deemed to have been paid in full. If any Securities are surrendered for
conversion subsequent to the record date preceding an Interest Payment Date but
prior to such Interest Payment Date, the Holder of such Securities at the close
of business on such record date shall receive the interest payable (but not
accrued and unpaid Liquidated Damages Amount, if any, with respect to such
converted Security) on such Security on such Interest Payment Date
notwithstanding the conversion thereof. Securities surrendered for conversion
during the period from the close of business on any record date preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall be accompanied by payment from converting Holders, for the account of the
Company, in New York Clearing House funds, or other funds of an amount equal to
the interest payable (but not accrued and unpaid Liquidated Damages Amount, if
any, with respect to such converted Security) on such Interest Payment Date on
the Securities being surrendered for conversion; provided that no such payment
is required if (a) the Company has specified a Redemption Date during the
period from the close of business on any record date preceding any Interest
Payment Date through and including such Interest Payment Date (b) the Company
has specified a Repurchase Date following a Repurchase Event that is during the
period from the close of business on any record date preceding any Interest
Payment Date through and including such Interest Payment Date, or (c) any
overdue interest exists at the time of the conversion with respect to the
Securities converted, but only to the extent of the amount of such overdue
interest.



     Except as provided in this Section 12.9, no adjustments in respect of
payments of interest on Securities surrendered for conversion or any dividends
or distributions or interest on the Common Stock issued upon conversion shall
be made upon the conversion of any Securities.



Section 12.10 Company Determination Final.




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



Section 12.11 Responsibility of Trustee for Conversion Provisions.




     The Trustee has no duty to determine when an adjustment under this Article
XII should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities. The Trustee shall not be responsible for
any failure of the Company to comply with this Article XII. Each Conversion
Agent other than the Company shall have the same protection under this Section
12.11 as the Trustee.



79









 





     The rights, privileges, protections, immunities and benefits given to the
Trustee under this Indenture including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each Paying Agent or Conversion Agent acting
hereunder.



Section 12.12 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 XII 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 XIII

MISCELLANEOUS




Section 13.1 Trust Indenture Act Controls.




     If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by TIA Section 318(c), such section of the TIA shall
control. If any provision of this Indenture expressly modifies or excludes any
provision of the TIA that may be so modified or excluded, the Indenture
provision so modifying or excluding such provision of the TIA shall be deemed
to apply.



Section 13.2 Notices.




     Any request, demand, authorization, notice, waiver, consent or
communication shall be in writing and delivered in person, mailed by
first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:



     if to the Company:




Cooper Cameron Corporation 

1333 West Loop South, Suite 1700 

Houston, Texas 77027 

Attention: General Counsel 

Facsimile No.: (713) 513-3456



     if to the Trustee:




SunTrust Bank 

25 Park Place, N.E. 

24th Floor 

Atlanta, Georgia 30303 

Attn: Corporate Trust Department 

Facsimile No.: (404) 588-7335



80









 






For delivery of Securities by Holders in accordance with Section 6.5 of this Indenture:




SunTrust Bank 

c/o Law Debenture Corporate Trust Services 

767 Third Avenue 

31st Floor 

New York, NY 10012 

Facsimile No.: (212)    -   



     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 mailed to
the Securityholder, 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.



     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 13.3 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. 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 13.4 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, if the
Trustee so requests:




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




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



Section 13.5 Statements Required in Certificate or Opinion.




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



81









 






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




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




     (c) a statement that, in the opinion of each such person, he or she
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 has been complied with.



Section 13.6 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 13.7 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, the Bid Solicitation
Agent and the Paying Agent may make reasonable rules for their functions.



Section 13.8 Legal Holidays.




     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 Securities, no interest, if any, shall accrue for the
intervening period.



Section 13.9 Governing Law; Submission to Jurisdiction; Service of Process.




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



     The Company submits to the nonexclusive jurisdiction of the courts of the
State of New York and the courts of the United States of America, in each case
located in the Borough of Manhattan, The City of New York and State of New York
over any suit, action or proceeding arising under or in connection with this
Indenture or the transactions contemplated hereby or the Securities. The
Company waives any objection that it may have to the venue of any suit, action
or proceeding arising under or in connection with this Indenture or the
transactions contemplated hereby or the Securities in the courts of the State
of New York or the courts of the United States of America, in each case located
in the Borough of Manhattan, City of New York and State of New York, or that
such suit, action or proceeding brought in the courts of the State of New York
or the courts of the United States of America, in each case located in the
Borough of Manhattan, City of New York and State of New York, was brought in an
inconvenient court and agrees not to plead or claim the same.



82









 





Section 13.10 No Recourse Against Others.




     No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration
for the issue of the Securities.



Section 13.11 Successors.




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



Section 13.12 Multiple Originals.




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



Section 13.13 Benefits of Indenture.




     Nothing in this Indenture or in the Securities, express or implied, shall
give to any person, other than the parties hereto and the Holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture or the Securities.



83









 





     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.


	 	 	 	 	 
	 	COOPER CAMERON CORPORATION

 	 
	 	By:  	/s/ Michael C. Jennings	 
	 	 	Name:  	Michael C. Jennings	 
	 	 	Title:  	Vice President and Treasurer	 
	 



	 	 	 	 	 
	 	SUNTRUST BANK,

As Trustee

 	 
	 	By:  	/s/ Jack Ellerin	 
	 	 	Name:  	Jack Ellerin
	 	 	Title:  	Assistant Vice President	 	 




84









 






	 	 	 	 	 



EXHIBIT A





[FORM OF FACE OF SECURITY]





     [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF 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. THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.]1



     [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
“SECURITIES ACT”), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS SECURITY
AGREES FOR THE BENEFIT OF COOPER CAMERON CORPORATION, THAT (A) THIS SECURITY
AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO COOPER CAMERON CORPORATION OR ANY
SUBSIDIARY THEREOF, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (III) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER,









	1 This legend should be included only if the Security is a Global Security.




A-1









 









FURNISHES TO SUNTRUST BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITYS (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR SUCCESSOR TRUSTEE, AS APPLICABLE),
(IV) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (V) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. IN
ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTIONS WITH REGARD TO THE SECURITIES EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT2]




     [THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.]3









	2 This legend should be included only if the Security is a Transfer Restricted
Security.
	 
	3 This legend should be included only if the Security is a Transfer Restricted
Security.




A-2









 










COOPER CAMERON CORPORATION




1.50% Convertible Senior Debentures due 2024




	 	 	 
	No. 

Issue Date:

	 	CUSIP :    
	Principal Amount: $
	 	 







     COOPER CAMERON CORPORATION, a Delaware corporation (the “Company”, which
term shall include any successor corporation under the Indenture referred to on
the reverse hereof), promises to pay to             
or registered
assigns, up to the principal amount of            Dollars ($ ) [‘or such
lesser amount as is indicated in the records of the Trustee and the
Depositary,]4 on May 15, 2024, and to pay interest thereon from May 11, 2004 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, on May 15 and November 15 in each year (each, an “Interest
Payment Date”), commencing on November 15, 2004, at the rate of 1.50% per annum,
until the principal hereof is paid or made available for payment at May 15,
2024 or upon acceleration, or until such date on which the Securities are
converted, redeemed or repurchased as provided herein, and at the rate of 1.50%
per annum on any overdue principal and on any overdue installment of interest
and Liquidated Damages Amount, if any. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture (as hereinafter defined), be paid to the Person in whose name
this Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest, which will be
the May 1 or November 1 (whether or not a Business Day), as the case may be,
next preceding the corresponding Interest Payment Date (a “Regular Record
Date”). Any such interest and Liquidated Damages Amount, if any, not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may be paid (a) to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee (a “Special Record Date”), notice thereof
will be given to Holders not less than 10 days prior to such Special Record
Date, or (b) at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.



     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.









	4 This phrase should be included only if the Security is a Global Security.




A-3









 










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



Dated: May 11, 2004



	 	 	 	 	 
	 	COOPER CAMERON CORPORATION

 	 
	 	By:  	 	 
	 	Title: 	 	 
	 	 	 	 




A-4









 






	 	 	 	 	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION





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



Dated: May 11, 2004



	 	 	 	 	 
	 	SUNTRUST BANK,

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 




A-5









 






	 	 	 	 	 



[FORM OF REVERSE OF GLOBAL SECURITY]




COOPER CAMERON CORPORATION




1.50% Convertible Senior Debentures due 2024





     This Security is one of a duly authorized issue of 1.50% Convertible
Senior Debentures due 2024 (the “Securities”) of COOPER CAMERON CORPORATION, a
Delaware corporation (including any successor corporation under the Indenture
hereinafter referred to, the “Company”), issued under an Indenture, dated as of
May 11, 2004 (the “Indenture”), between the Company and SunTrust Bank, 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 referred to below unless otherwise
indicated.



1. Interest.




     Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.



     If this Security is redeemed pursuant to Section 5 of this Security or the
Holder elects to require the Company to repurchase this Security pursuant to
Section 6 of this Security, on a date that is after the Regular Record Date and
prior to the corresponding Interest Payment Date, interest and Liquidated
Damages Amount, if any, accrued and unpaid hereon to, but not including, the
applicable Redemption Date, Repurchase Date or Repurchase Event Repurchase Date
will be paid to the same Holder to whom the Company pays the principal of such
Security regardless of whether such Holder was the registered Holder on the
Regular Record Date immediately preceding the applicable Redemption Date,
Repurchase Date or Repurchase Event Repurchase Date.



     Interest on Securities converted after the close of business on a Regular
Record Date but prior to the opening of business on the corresponding Interest
Payment Date will be paid to the Holder of the Securities on the Regular Record
Date but, upon conversion, the Holder must pay the Company the interest which
has accrued and will be paid on such Interest Payment Date. No such payment
need be made with respect to Securities which will be converted after a Regular
Record Date and prior to the corresponding Interest Payment Date if (i) the
Company has specified a Redemption Date during the period from the close of
business on any record date preceding any Interest Payment Date through and
including such Interest Payment Date (ii) the Company has specified a
Repurchase Date following a Repurchase Event that is during the period from the
close of business on any record date preceding any Interest Payment Date
through and including such Interest Payment Date, or (iii) any overdue interest
exists at the time of conversion with respect to the Securities converted, but
only to the extent of the amount of such overdue interest.



A-6









 





     Upon conversion of this Security, the Company will pay accrued and unpaid
Liquidated Damages Amount, if any, to but not including the date of conversion
to the Holder delivering the Security for conversion.



     Except as otherwise stated herein, any reference herein to interest
accrued or payable as of any date shall include any Liquidated Damages Amount
accrued or payable on such date as provided in the Registration Rights
Agreement.



2. Method of Payment.




     Payment of the principal of and interest and Liquidated Damages Amount, if
any, on the Securities shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts, as permitted in the Indenture. The Holder must surrender the
Securities to the Paying Agent to collect payment of principal. Payment of
interest and Liquidated Damages Amount, if any, on Certificated Securities will
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Register. Notwithstanding the foregoing, so long as the
Securities are registered in the name of a Depositary or its nominee, all
payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.



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




     Initially, SunTrust Bank will act as Paying Agent, Conversion Agent and
Bid Solicitation Agent. The Company may appoint and change any Paying Agent,
Registrar, Conversion Agent or Bid Solicitation Agent without notice, other
than notice to the Trustee; provided that the Company will maintain at least
one Paying Agent in the State of New York, The City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may act as Paying
Agent, Registrar or Conversion Agent. None of the Company or any Subsidiary or
any Affiliate of any of them may act as Bid Solicitation Agent.



4. Indenture.




     The Securities are general unsecured obligations of the Company. The
Indenture does not limit the amount of the Securities or other indebtedness of
the Company, secured or unsecured.



5. Redemption at the Option of the Company.




     The Company may, at its option, redeem the Securities for Cash at any time
as a whole, or from time to time in part, on or after May 15, 2009, at a
redemption price equal to 100% of the principal amount of Securities to be
redeemed plus any accrued and unpaid interest and Liquidated Damages Amount, if
any, on those Securities to, but not including, the Redemption Date.



     Notice of redemption pursuant to this Section of this Security will 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
Cash sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the



A-7









 




Paying Agent prior to 10:00 a.m., New York City time, on the Redemption
Date, then on such Redemption Date interest and Liquidated Damages Amount, if
any, cease to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of principal amount may be redeemed in part
but only in multiples of $1,000 of principal amount.



6. Repurchase By the Company at the Option of the Holder or Upon a Repurchase
Event.




     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 May 15, 2009, May 15, 2014 and May 15,
2019 in multiples of $l,000 at a repurchase price equal to 100% of the
principal amount of those Securities plus accrued and unpaid interest and
Liquidated Damages Amount, if any, to, but not including, such 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
9:00 a.m., New York City time, on the date that is 20 Business Days immediately
preceding such Repurchase Date until 5:00 p.m., New York City time, on the
Business Day immediately preceding such Repurchase Date, and shall deliver the
Securities to the Paying Agent as set forth in the Indenture.



     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 upon a Repurchase Event in multiples of
$1,000 at the Repurchase Event Repurchase Price. To exercise such right, a
Holder shall deliver to the Paying Agent a Repurchase Event Repurchase Notice
containing the information set forth in the Indenture, at any time prior to
5:00 p.m., New York City time, on the Business Day immediately preceding the
Repurchase Event Repurchase Date, and shall deliver the Securities to the
Paying Agent as set forth in the Indenture.



     Holders have the right to withdraw any Repurchase Notice or Repurchase
Event Repurchase Notice 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 Repurchase Event
Repurchase Price, as the case may be, of all Securities or portions thereof to
be repurchased with respect to a Repurchase Date or Repurchase Event Repurchase
Date, as the case may be, has been deposited with the Paying Agent, at 10:00
a.m., New York City time, on the Repurchase Date or Repurchase Event Repurchase
Date, as the case may be, then, immediately after the Repurchase Date or
Repurchase Event Repurchase Date, as applicable, such Securities will cease to
be outstanding and interest and Liquidated Damages Amount, if any, on such
Securities will cease to accrue and the Holder thereof shall have no other
rights as such other than the right to receive the Repurchase Price or
Repurchase Event Repurchase Price upon surrender of such Security.



7. Conversion.




     Subject to and in compliance with the provisions of the Indenture
(including, without limitation, the conditions to conversion of this Security
set forth in Section 12.1 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 a multiple of $1,000), into fully paid and



A-8









 




nonassessable shares of Common Stock at the Conversion Rate in effect on
the date of conversion.




     Notwithstanding any other provision of the Indenture or the Securities,
all Holders’ rights with respect to the conversion of the Securities and the
Company’s obligation to deliver shares of Common Stock at the Conversion Rate
upon such conversion (the “Conversion Obligation”) are subject, in their
entirety, to the Company’s right, in its sole discretion, to elect to satisfy
its Conversion Obligation in Cash, shares of Common Stock, or a combination
thereof, as provided in Section 12.2(g) of the Indenture or, with respect to a
Principal Value Conversion, as described in the following paragraph.



     If the Sale Price of the Common Stock on the Trading Date prior to the
Conversion Date is greater than 100% of the Conversion Price but equal to or
less than 120% of the then-current Conversion Price, then notwithstanding the
provisions of Section 12.2(a) or (g) of the Indenture, Holders surrendering
Securities for conversion will receive, in lieu of Common Stock based on the
then applicable Conversion Rate, Cash, Common Stock, or any combination
thereof, at the option of the Company, with a value equal to the aggregate
principal amount of the Securities surrendered for conversion plus accrued and
unpaid interest and Liquidated Damages Amount, if any, as of the Conversion
Date (a “Principal Value Conversion”), as provided in Section 12.2(h) of the
Indenture.



     The Company will notify Holders of any event triggering the right to
convert the Securities as specified above in accordance with the Indenture.



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



     The initial Conversion Rate is 14.4857 shares per $1,000 principal amount
of Securities, subject to adjustment in certain events described in the
Indenture.



     To surrender a Security for conversion, a Holder must, in the case of
Global Securities, comply with the Applicable Procedures of the Depositary in
effect at that time, and in the case of Certificated Securities, (1) surrender
the Security to the Conversion Agent, (2) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay all funds required,
if any, relating to interest or Liquidated Damages Amount, if any, and any
transfer or similar tax, if required.



     No fractional share of Common Stock shall be issued upon conversion of any
Security. Instead, the Company shall pay a Cash adjustment as provided in the
Indenture.



     No payment or adjustment will be made for accrued and unpaid interest or
dividends on the shares of Common Stock, except as provided in the Indenture.
Accrued and unpaid Liquidated Damages Amount, if any, to but not including the
date of conversion shall be paid to the Holder that delivers the Security for
conversion.



A-9









 





     If the Company (i) is a party to a consolidation, merger, statutory share
exchange or combination of the Company with another corporation as a result of
which all the holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including Cash or a combination
thereof) with respect to or in exchange for all of their Common Stock, (ii)
reclassifies or changes the shares of Common Stock or (iii) conveys, transfers
or leases its properties and assets as, or substantially as, an entirety to any
person, the right to convert a Security into shares of Common Stock may be
changed to a right to convert a Security into the kind and amount of shares of
stock and other securities or property or assets (including Cash) which such
Holder would have been entitled to receive upon such reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or
conveyance had such Holder converted its Security into Common Stock immediately
prior to such transaction, in each case, in accordance with the Indenture.



8. Denominations; Transfer; Exchange.




     The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and 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) or any
Securities in respect of which a Repurchase Notice or Repurchase Event
Repurchase Notice has been given and not withdrawn (except, in the case of a
Security to be repurchased in part, the portion of the Security not to be
repurchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.



9. Persons Deemed Owners.




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



10. Unclaimed Money or Securities.




     The Trustee and the Paying Agent shall return to the Company upon written
request any Cash 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 unclaimed 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.




11. Amendment; Waiver.




     Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent or
affirmative vote of the Holders of not less than a majority in aggregate
principal amount of the outstanding Securities and (ii) certain Defaults may be
waived with the written consent or affirmative vote of the Holders of not less
than a majority in aggregate principal amount of the outstanding Securities.




A-10









 





     Without the consent of any Securityholder, the Company and the Trustee may
amend the Indenture or the Securities to (i) provide for the assumption of the
Company’s obligations to the Holders of Securities in the case of a merger,
consolidation, conveyance, transfer, sale, lease or other disposition pursuant
to Article VII of the Indenture, (ii) add to the covenants of the Company for
the benefit of the Holders of Securities, (iii) surrender any right or power
conferred upon the Company in the Indenture, (iv) provide for a successor
Trustee with respect to the Securities, (v) provide for issuance of the
Securities in coupon form, (vi) make provision with respect to the conversion
rights of Holders of the Securities in accordance with this Indenture in
connection with a reclassification, consolidation, combination, merger or sale
of all or substantially all of the Company’s property and assets, (vii) cure
any ambiguity, correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or which is otherwise
defective, or to make any other provisions with respect to matters or questions
arising under the Indenture which the Company may deem necessary or desirable
and which shall not be inconsistent with the provisions of the Indenture;
provided, however, that such action pursuant to this clause does not adversely
affect the interests of the Holders of Securities; and further provided,
however that any change to conform the Indenture to the description of the
Securities contained in any offering memorandum or registration statement with
respect to the Securities shall be deemed not to adversely affect the interests
of the Holders of the Securities, (viii) add any additional Events of Default
with respect to all or any of the Securities, (ix) secure the Securities, (x)
increase the Conversion Rate or reduce the Conversion Price; provided, however,
that such increase in the Conversion Rate or reduction in the Conversion Price
is in accordance with the terms of the Indenture or shall not adversely affect
the interest of the Holders of Securities, (xi) supplement any of the
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the discharge of the Securities, provided that such change or
modification does not adversely affect the interests of the Holders of the
Securities, (xii) 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 such
action pursuant to this clause does not adversely affect the interests of the
Holders of Securities in any material respect, (xiii) make any changes or
modifications necessary to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA, and (xiv)
add or modify any other provisions in the Indenture with respect to matters or
questions arising thereunder which the Company and the Trustee may deem
necessary or desirable and which would not adversely affect the interests of
the Holders of Securities.



12. Defaults and Remedies.




     If any Event of Default other than as a result of certain events of
bankruptcy, insolvency or reorganization of the Company or its Significant
Subsidiaries occurs and is continuing, the principal of all the Securities may
be declared due and payable in the manner and with the effect provided in the
Indenture. If an Event of Default occurs as a result of certain events of
bankruptcy, insolvency or reorganization of the Company or its Significant
Subsidiaries, the principal of all the Securities shall become due and payable
immediately without any declaration or other act on the part of the Trustee or
any Holder, all as and to the extent provided in the Indenture.



A-11









 





13. 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 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.



14. Calculations in Respect of Securities.




     The Company or its agents will be responsible for making all calculations
called for under the Securities including, but not limited to, determination of
the Market Price, Current Market Value and Sale Price of the Common Stock and
the Applicable Stock, the number of shares of Common Stock or Applicable Stock
issuable upon conversion and the amounts of interest and Liquidated Damages
Amount, if any, on the Securities. Any calculations made in good faith and
without manifest error will be final and binding on Holders of the Securities.
The Company or its agents will be required to deliver to the Trustee a schedule
of its calculations and the Trustee will be entitled to conclusively rely upon
the accuracy of such calculations without independent verification. The Trustee
has no duty to determine when such calculations should be made, how they should
be made or what the calculations should be and shall not suffer any liability
as a result thereof.


15. No Recourse Against Others.



     No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, or in this Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration
for the issue of the Securities.



16. Authentication.




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



17. 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).



18. INDENTURE TO CONTROL; GOVERNING LAW.




A-12









 








     IN THE CASE OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECURITY AND
THE INDENTURE, THE PROVISIONS OF THE INDENTURE SHALL CONTROL. THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. Requests may be made to:




Cooper Cameron Corporation 

1333 West Loop South, Suite 1700 

Houston, Texas 77027 

Attention: General Counsel

Facsimile No.: (713) 513-3456



19. Registration Rights.5




     The Holders of the Securities are entitled to the benefits of a
Registration Rights Agreement, dated as of May 11, 2004, between the Company
and the Initial Purchasers named therein, including, in certain circumstances,
the receipt of Liquidated Damages Amount upon a registration default (as
defined in such agreement).









	5 This section shall be deleted from any Securities that are not Transfer
Restricted Securities.




A-13









 










ASSIGNMENT FORM




To assign this Security, fill in the form below:




I or we assign and transfer this Security to









(Insert assignee’s soc. sec. or tax ID no.)



























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



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




	 	 	 	 	 	 	 
	

	 	 	 	Your signature:	 	 
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 	 	
	

(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









 






CONVERSION NOTICE



To convert this Security into shares of Common Stock of the Company, check the
box;



To convert only part of this Security, state the principal amount to be
converted (which must be $1,000 or a multiple of $1,000):



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








(Insert assignee’s soc. sec. or tax ID no.)



























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



	 	 	 	 	 	 	 
	

	 	 	 	Your signature:	 	 
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 	 	
	

(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-15









 






TRANSFER CERTIFICATE6




Re: 1.50% Convertible Senior Debentures due 2024
(the “Securities”) of Cooper Cameron Corporation (the “Company”)



     This certificate relates to $                    principal amount of Securities
owned in (check applicable box)



	 	 	 
	[   ] book-entry or

	 	[   ]definitive form by                                                  (the “Transferor”).







     The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Securities.



     In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Sections 2.6 and 2.12 of
the Indenture dated May 11, 2004 between the Company and SunTrust Bank, as
trustee (the “Indenture”), and the transfer of such Security is being made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”), or the transfer or exchange, as the
case may be, of such Security does not require registration under the
Securities Act because (check applicable box):



	 	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred pursuant to an effective
registration statement under the Securities Act; or
	 
	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred to the Company or a
Subsidiary; or
	 
	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred inside the United States
to a “qualified institutional buyer” in compliance with Rule
144A under the Securities Act; or
	 
	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred inside the United Stated
to an “institutional accredited investor” that prior to such
transfer has furnished to SunTrust Bank as Trustee (or a
successor trustee, as applicable) a signed letter containing
certain representations and agreements relating to the
restrictions on transfer of the Securities (in the form
obtained from such Trustee or successor trustee, as
applicable); or
	 
	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred outside the United States
in compliance with Rule 904 under the Securities Act; or
	 
	 	 	 	 
	

	 	[   ]
	 	Such Security is being transferred pursuant to and in
compliance with an exemption from the registration
requirements under the Securities Act in accordance with Rule
144 (or any successor thereto) (“Rule 144”) under the
Securities Act; or













	6 This certificate should only be included if this Security is a Transfer Restricted Security.




A-16









 










	 	 	 
	[   ]

	 	Such Security is being acquired for the Transferor’s own
account, without transfer;






and unless the Such Security is being transferred to the Company or a
Subsidiary box is checked, the undersigned confirms that such Security is not
being transferred to an “affiliate” of the Company as defined in Rule 144 under
the Securities Act.




	 	 	 
	DATE:
	 	 
	

	 	

Signature(s) of Transferor






(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







A-17









 






EXHIBIT B




[FORM OF RESTRICTIVE LEGEND FOR

COMMON STOCK ISSUED UPON CONVERSION]




     [THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF COOPER CAMERON
CORPORATION, THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) TO COOPER CAMERON CORPORATION OR ANY SUBSIDIARY
THEREOF, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO EQUISERVE TRANSFER & TRUST COMPANY, AS TRANSFER
AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITIES (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM
SUCH TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), (IV) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (VI) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (VI) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE
SECURITIES EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.]



B-1









 





EXHIBIT C




[Form of Repurchase Notice]




___________, 200_




[address]



	 	 	 
	Re:

	 	Cooper Cameron Corporation (the “Company”) 

1.50% Convertible Senior Debentures due 2024






     This is a Repurchase Notice as defined in Section 4.1 of the Indenture
dated as of May 11, 2004 (the “Indenture”) between the Company and SunTrust
Bank, as Trustee. Terms used but not defined herein shall have the meanings
ascribed to them in the Indenture.



Certificate No(s). of Securities:



I intend to deliver the following aggregate Principal Amount of Securities for
purchase by the Company pursuant to Section 4.1 of the Indenture (in multiples
of $1,000):



$




     I hereby agree that the Securities will be purchased on the Repurchase
Date pursuant to the terms and conditions specified in the Securities and the
Indenture.






	 	 	 
	 	Signed:	 
	 	 	







C-1









 








EXHIBIT D




[Form of Repurchase Event Repurchase Notice]




	 	 	 
	SunTrust Bank 

[address]

	 	         
         , 200_








	 	 	 
	Re:

	 	Cooper Cameron Corporation (the “Company”) 

1.50% Convertible Senior Debentures due 2024







     This is a Repurchase Event Repurchase Notice as defined in Section 5.1 of
the Indenture dated as of May 11, 2004 (the “Indenture”) between the Company
and SunTrust Bank, as Trustee. Terms used but not defined herein shall have the
meanings ascribed to them in the Indenture.


Certificate No(s). of Securities:



I intend to deliver the following aggregate Principal Amount of Securities for
purchase by the Company pursuant to Section 5.1 of the Indenture (in multiples
of $1,000):



$




     I hereby agree that the Securities will be purchased on the Repurchase
Event Repurchase Date pursuant to the terms and conditions specified in the
Securities and the Indenture.



	 	 	 
	 	Signed:	 
	 	 	












D-1