exv4w1






Exhibit 4.1




EXECUTION COPY



 



 




AMKOR TECHNOLOGY, INC.



AND




U.S. BANK NATIONAL ASSOCIATION




AS TRUSTEE




6.00% Convertible Senior Subordinated Notes due 2014




 






Indenture




Dated as of April 1, 2009




 





 




 









 





Reconciliation and tie between Trust Indenture Act

of 1939 and Indenture, dated as of April 1, 2009




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§ 310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	Not Applicable
	(b)
	 	7.08, 7.10
	(c)
	 	Not Applicable
	§ 311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	Not Applicable
	§ 312(a)
	 	2.05
	(b)
	 	10.03
	(c)
	 	10.03
	§ 313(a)
	 	7.06
	(b)(1)
	 	Not Applicable
	(b)(2)
	 	7.06
	(c)
	 	7.06
	(d)
	 	7.06
	§ 314(a)
	 	402, 403
	(c)(1)
	 	10.04
	(c)(2)
	 	10.04
	(c)(3)
	 	Not Applicable
	(e)
	 	4.03
	(f)
	 	Not Applicable
	§ 315(a)
	 	7.01
	(b)
	 	7.05
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	§ 316(a) (last sentence)
	 	2.10
	(a)(l)(A)
	 	6.05
	(a)(l)(B)
	 	6.04
	(a)(2)
	 	Not Applicable
	(b)
	 	6.07
	§ 317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	§ 318(a)
	 	10.01





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.




 i




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Other Definitions
	 	 	10	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	11	 
	Section 1.04. Rules of Construction. Unless the context otherwise requires:
	 	 	11	 
	 
	 	 	 	 
	ARTICLE II THE NOTES
	 	 	12	 
	 
	 	 	 	 
	Section 2.01. Form and Dating
	 	 	12	 
	Section 2.02. Execution and Authentication
	 	 	13	 
	Section 2.03. The Trustee Registrar, Paying Agent and Conversion Agent
	 	 	14	 
	Section 2.04. Paying Agent To Hold Money in Trust
	 	 	15	 
	Section 2.05. Holder Lists
	 	 	15	 
	Section 2.06. Legends; Transfer Restrictions
	 	 	15	 
	Section 2.07. Transfer and Exchange
	 	 	16	 
	Section 2.08. Replacement Notes
	 	 	20	 
	Section 2.09. Outstanding Notes
	 	 	21	 
	Section 2.10. When Treasury Notes Disregarded
	 	 	21	 
	Section 2.11. Temporary Notes; Definitive Securities
	 	 	22	 
	Section 2.12. Cancellation
	 	 	23	 
	Section 2.13. Defaulted Interest
	 	 	23	 
	Section 2.14. CUSIP Number
	 	 	23	 
	 
	 	 	 	 
	ARTICLE III [INTENTIONALLY OMITTED]
	 	 	24	 
	 
	 	 	 	 
	ARTICLE IV COVENANTS
	 	 	24	 
	 
	 	 	 	 
	Section 4.01. Payment of Notes
	 	 	24	 
	Section 4.02. Reports
	 	 	24	 
	Section 4.03. Compliance Certificate
	 	 	25	 
	Section 4.04. Maintenance of Office or Agency
	 	 	25	 
	Section 4.05. Continued Existence
	 	 	25	 






ii









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 4.06. Repurchase Upon Designated Event
	 	 	25	 
	Section 4.07. Appointments to Fill Vacancies in Trustee’s Office
	 	 	28	 
	Section 4.08. Stay, Extension and Usury Laws
	 	 	28	 
	Section 4.09. Taxes
	 	 	28	 
	Section 4.10. Increased Interest Rate
	 	 	28	 
	Section 4.11. Additional Interest Notice
	 	 	30	 
	 
	 	 	 	 
	ARTICLE V SUCCESSORS
	 	 	30	 
	 
	 	 	 	 
	Section 5.01. When the Company May Merge, Etc
	 	 	30	 
	Section 5.02. Successor Corporation Substituted
	 	 	31	 
	Section 5.03. Purchase Option on Change of Control
	 	 	31	 
	 
	 	 	 	 
	ARTICLE VI DEFAULTS AND REMEDIES
	 	 	32	 
	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	32	 
	Section 6.02. Acceleration
	 	 	33	 
	Section 6.03. Other Remedies
	 	 	34	 
	Section 6.04. Waiver of Past Defaults
	 	 	35	 
	Section 6.05. Control by Majority
	 	 	35	 
	Section 6.06. Limitation on Suits
	 	 	35	 
	Section 6.07. Rights of Holders To Receive Payment
	 	 	35	 
	Section 6.08. Collection Suit by Trustee
	 	 	36	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	36	 
	Section 6.10. Priorities
	 	 	36	 
	Section 6.11. Undertaking for Costs
	 	 	37	 
	 
	 	 	 	 
	ARTICLE VII THE TRUSTEE
	 	 	37	 
	 
	 	 	 	 
	Section 7.01. Duties of the Trustee
	 	 	37	 
	Section 7.02. Rights of the Trustee
	 	 	38	 
	Section 7.03. Individual Rights of the Trustee
	 	 	39	 
	Section 7.04. Trustee’s Disclaimer
	 	 	39	 






iii









 




TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 7.05. Notice of Defaults
	 	 	40	 
	Section 7.06. Reports by the Trustee to Holders
	 	 	40	 
	Section 7.07. Compensation and Indemnity
	 	 	40	 
	Section 7.08. Replacement of the Trustee
	 	 	41	 
	Section 7.09. Successor Trustee by Merger, etc
	 	 	42	 
	Section 7.10. Eligibility, Disqualification
	 	 	42	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	42	 
	 
	 	 	 	 
	ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	42	 
	 
	 	 	 	 
	Section 8.01. Discharge of Indenture
	 	 	42	 
	Section 8.02. Deposited Monies to be Held in Trust by Trustee
	 	 	43	 
	Section 8.03. Paying Agent to Repay Monies Held
	 	 	43	 
	Section 8.04. Return of Unclaimed Monies
	 	 	43	 
	Section 8.05. Reinstatement
	 	 	43	 
	 
	 	 	 	 
	ARTICLE IX AMENDMENTS
	 	 	44	 
	 
	 	 	 	 
	Section 9.01. Without the Consent of Holders
	 	 	44	 
	Section 9.02. With the Consent of Holders
	 	 	44	 
	Section 9.03. Compliance with the Trust Indenture Act
	 	 	45	 
	Section 9.04. Revocation and Effect of Consents
	 	 	46	 
	Section 9.05. Notation on or Exchange of Notes
	 	 	46	 
	Section 9.06. Trustee Protected
	 	 	46	 
	 
	 	 	 	 
	ARTICLE X GENERAL PROVISIONS
	 	 	46	 
	 
	 	 	 	 
	Section 10.01. Trust Indenture Act Controls
	 	 	47	 
	Section 10.02. Notices
	 	 	47	 
	Section 10.03. Communication by Holders With Other Holders
	 	 	47	 
	Section 10.04. Certificate and Opinion as to Conditions Precedent
	 	 	47	 
	Section 10.05. Statements Required in Certificate or Opinion
	 	 	48	 
	Section 10.06. Rules by Trustee and Agents
	 	 	48	 






iv









 




TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 10.07. Legal Holidays
	 	 	48	 
	Section 10.08. No Recourse Against Others
	 	 	49	 
	Section 10.09. Counterparts
	 	 	49	 
	Section 10.10. Other Provisions
	 	 	49	 
	Section 10.11. Governing Law
	 	 	49	 
	Section 10.12. No Adverse Interpretation of Other Agreements
	 	 	50	 
	Section 10.13. Successors
	 	 	50	 
	Section 10.14. Severability
	 	 	50	 
	Section 10.15. Table of Contents, Headings, Etc
	 	 	50	 
	Section 10.16. Submission to Jurisdiction
	 	 	50	 
	 
	 	 	 	 
	ARTICLE XI SUBORDINATION
	 	 	50	 
	 
	 	 	 	 
	Section 11.01. Agreement to Subordinate
	 	 	50	 
	Section 11.02. Liquidation; Dissolution; Bankruptcy
	 	 	50	 
	Section 11.03. Default on Designated Senior Debt
	 	 	51	 
	Section 11.04. Acceleration of Notes
	 	 	52	 
	Section 11.05. When Distribution Must Be Paid Over
	 	 	52	 
	Section 11.06. Notice by Company
	 	 	52	 
	Section 11.07. Subrogation
	 	 	53	 
	Section 11.08. Relative Rights
	 	 	53	 
	Section 11.09. Subordination May Not Be Impaired by Company
	 	 	53	 
	Section 11.10. Distribution or Notice to Representative
	 	 	53	 
	Section 11.11. Rights of Trustee and Paying Agent
	 	 	54	 
	Section 11.12. Authorization to Effect Subordination
	 	 	54	 
	Section 11.13. Amendments
	 	 	54	 
	Section 11.14. Senior Debt Entitled to Rely
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XII CONVERSION
	 	 	54	 
	 
	 	 	 	 
	Section 12.01. Right to Convert
	 	 	54	 






v









 






TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	Section 12.02. Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends
	 	 	55	 
	Section 12.03. Cash Payments in Lieu of Fractional Shares
	 	 	56	 
	Section 12.04. Conversion Rate
	 	 	57	 
	Section 12.05. Adjustment of Conversion Rate
	 	 	57	 
	Section 12.06. Effect of Recapitalization, Reclassification, Consolidation, Merger,
Combination, Sale, Lease or Transfer
	 	 	65	 
	Section 12.07. Taxes on Shares Issued
	 	 	67	 
	Section 12.08. Reservation of Shares; Shares to Be Fully Paid; Listing of Common
Stock
	 	 	67	 
	Section 12.09. Responsibility of Trustee
	 	 	67	 
	Section 12.10. Notice to Holders Prior to Certain Actions
	 	 	68	 
	Section 12.11.
Restriction on Common Stock Issuable Upon Conversion
	 	 	69	 
	Section 12.12.
Make Whole Premium Upon a Designated Event
	 	 	70	 







			
	EXHIBIT A:	 	FORM OF NOTE






			
	EXHIBIT B:	 	FORM OF CERTIFICATE FOR TRANSFER FROM AFFILIATED ENTITY TO ANOTHER AFFILIATED ENTITY






			
	EXHIBIT C:	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144






			
	EXHIBIT D:	 	FORM OF STOCK LEGENDS






			
	EXHIBIT E:	 	FORM OF TRANSFER CERTIFICATE FOR TRANSFER OF RESTRICTED COMMON STOCK





 vi




 









 





     THIS INDENTURE, dated as of April 1, 2009, is between Amkor Technology, Inc., a Delaware
corporation (the “Company”), and U.S. Bank National Association, a national banking
association organized and existing under laws of the United States, as trustee (the
“Trustee”). The Company has duly authorized the creation of its 6.00% Convertible Senior
Subordinated Notes due 2014 (the “Notes”) and to provide therefore the Company and the
Trustee have duly authorized the execution and delivery of this Indenture. Each party agrees as
follows for the benefit of the other party and for the equal and ratable benefit of the Holders
from time to time of the Notes:



ARTICLE I




DEFINITIONS




     SECTION 1.01. Definitions.



     “Acquiring Person” means any “person” (as defined in Section 13(d) (3) of the Exchange
Act) who or which, together with all affiliates and associates (each as defined in Rule 12b-2 under
the Exchange Act), becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act and as further defined below) of shares of Common Stock or other voting securities of
the Company having more than 50% of the total voting power of the Voting Stock of the Company;
provided, however, that an Acquiring Person shall not include: (i) the Company, (ii) any Subsidiary
of the Company, (iii) any Permitted Holder or (iv) an underwriter engaged in a firm commitment
underwriting in connection with a public offering of the Voting Stock of the Company (or an initial
purchaser engaged in a distribution in the case of a similar private offering). For purposes
hereof, a person shall not be deemed to be the beneficial owner of (A) any securities tendered
pursuant to a tender or exchange offer made by or on behalf of such person or any of such person’s
affiliates until such tendered securities are accepted for purchase or exchange thereunder, or (B)
any securities if such beneficial ownership (1) arises solely as a result of a revocable proxy
delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act, and (2) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act.



     “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 purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” shall have correlative meanings.



     “Affiliate Security Legend” means the legend labeled as such that is set forth in
Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.



     “Affiliate Restricted Stock Legend” means the legend labeled as such and that is set
forth in Exhibit D hereto, which is incorporated in and expressly made a part of this Indenture.



 









 





     “Affiliated Entities” means James J. Kim and his estates, spouses, ancestors and
lineal descendants (and spouses thereof), the legal representatives of any of the foregoing, and
the trustee of any bona fide trust of which one or more of the foregoing are sole beneficiaries or
the grantors, or any Person of which any of the forgoing, individually or collectively,
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities
representing at least a majority of the total voting power of all classes of Capital Stock of such
Person (exclusive of any matters as to which class voting rights exist). For purposes of this
definition, the term “Affiliated Entity” shall mean any of the Affiliate Entities
individually.



     “Affiliate Notes” means any Notes acquired by any Affiliated Entity.



     “Agent” means any Registrar, Paying Agent, Conversion Agent or co-registrar.



     “Agent Member” means any member of, or participant in, the Depositary.



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



     “Board of Directors” means (i) with respect to a corporation, the board of directors
of the corporation or any committee thereof duly authorized to act on behalf of the board of
directors, (ii) with respect to a partnership, the general partner or the board of directors of the
general partner, as applicable, of the partnership and (iii) with respect to any other entity, the
board or committee of that entity serving a similar function.



     “Capital Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet in accordance with GAAP.



     “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, but excluding any debt securities convertible into such equity.



     “Change of Control” means the occurrence of one or more of the following events: (a)
any Person has become an Acquiring Person, (b) the Company consolidates with or merges into any
other Person, or conveys, transfers or leases all or substantially all of its assets to any Person,
or any other Person merges into the Company, and, in the case of any such transaction, the
outstanding Common Stock of the Company is exchanged as a result, unless the stockholders of the
Company immediately before such transaction beneficially own, directly or indirectly immediately
following such transaction, shares representing at least a majority of the combined voting power of
the outstanding voting securities of the Person resulting from such transaction in substantially
the same proportion as their ownership of the Voting Stock of the Company immediately before such
transaction, or (c) any time the Continuing Directors do not constitute a majority of the Board of
Directors of the Company (or, if applicable, a successor corporation to the Company); provided that
a Change of Control shall not be deemed to have occurred if either (x) the Closing Sale Price of
the Common Stock for any five Trading Days during the 10 consecutive Trading Days immediately
preceding the Change of Control is equal to at least



2









 




105% of the applicable Conversion Price in effect on the date of such Change of Control or (y)
at least 90% of the consideration (excluding cash payments for fractional shares) in the
transaction or transactions constituting the Change of Control consists of shares of common stock
that are, or upon issuance will be, traded on a U.S. national securities exchange or approved for
trading on an established automated over-the-counter trading market in the United States.




     “Commission” means the United States Securities and Exchange Commission.



     “Common Stock” means any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject to redemption by the
Company. Subject to the provisions of Section 12.06, however, shares issuable on conversion of
Notes shall include only shares of the class designated as Common Stock at the Issue Date or shares
of any class or classes resulting from any reclassification or reclassifications thereof and which
have no preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are not subject to
redemption by the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in the proportion to
which the total number of shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such reclassifications.



     “Company” means the party named as such above until a successor replaces it in
accordance with Article V and thereafter means the successor.



     “Company Order” means a written order of the Company signed by an Officer of the
Company.



     “Continuing Directors” means, as of any date of determination, any member of the Board
of Directors who (i) was a member of such Board of Directors on the Issue Date or (ii) was
nominated for election or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such nomination or election.



     “Conversion Price” means the conversion price per $1,000 principal amount of Notes
determined by dividing $1,000 by the Conversion Rate.



     “Conversion Rate” means the initial conversion rate specified in the form of Note in
Paragraph 15 of such form, as adjusted in accordance with the provisions of Article XII.



     “Convertible Subordinated Notes” means the Company’s 6.25% Convertible Subordinated
Notes due 2013.



     “Corporate Trust Office” means the corporate trust office of the Trustee at which at
any particular time the trust created by this Indenture shall principally be administered. As of
the Issue Date, the Corporate Trust Office is located at One Federal Street, 3rd Floor, Boston, MA
02110, Attention: Corporate Trust Services (Amkor Technology, Inc. 6.00% Convertible Senior
Subordinated Notes due 2014), and solely for purposes of Section 2.03 hereof the Trustee’s New



3









 







York office is located at 100 Wall Street, New York, NY 10005, Attention: Corporate Trust
Services (Amkor Technology, Inc. 6.00% Convertible Senior Subordinated Notes due 2014).



     “Credit Facilities” means, with respect to the Company or any Subsidiary, one or more
debt facilities or commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.



     “Default” means any event that 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.



     “Designated Event” means the occurrence of a Change of Control or a Termination of
Trading.



     “Designated Senior Debt” means any Senior Debt permitted under the Senior Notes
Indentures, the outstanding principal amount of which is, or which provides for commitments to
extend Senior Debt, in the amount of $25.0 million or more and that has been designated by the
Company as “Designated Senior Debt.”



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible, or for which it is exchangeable, in each case at the
option of the holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such provisions.



     “Domestic Subsidiary” means a Restricted Subsidiary that is (i) formed under the laws
of the United States of America or a state or territory thereof or (ii) as of the date of
determination, treated as a domestic entity or a partnership or a division of a domestic entity for
U.S. federal income tax purposes; and, in either case, is not owned, directly or indirectly, by the
Company or an entity that is not described in clauses (i) or (ii) above.



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



     “Equity Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock).



4









 





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



     “Existing Pari Passu Indebtedness” means the Company’s 2.50% Convertible Senior
Subordinated Notes due 2011.



     “Foreign Subsidiary” means a Subsidiary of the Company that is not a Domestic
Subsidiary.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, which are in effect from time to time.



     “Global Security” means Notes represented by a certificate in definitive, fully
registered form of securities without interest coupons in global form, that is deposited with the
Depositary or its custodian, and registered in the name of the Depositary or its nominee.



     “Global Securities Legend” means the legend labeled as such and that is set forth in
Exhibit A hereto, which is incorporated in and expressly made part of this Indenture.



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.



     “Hedging Obligations” means, with respect to any Person, the Obligations of such
Person under: (i) swap agreements, cap agreements and collar agreements relating to interest rates,
commodities or currencies; and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, commodities or currencies.



     “Holder” means the Person in whose name a Note is registered in the Register.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such
Person, whether or not contingent, in respect of: (i) borrowed money; (ii) bonds, notes, debentures
or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (iii)
banker’s acceptances; (iv) Capital Lease Obligations; (v) the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an accrued expense or
trade payable; or (vi) Hedging Obligations, if and to the extent any of such indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet of
the specified Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the
specified Person (whether or not such Indebtedness is assumed by the specified Person measured as
the lesser of the fair market value of the assets of such Person so secured or the amount of such
Indebtedness) and, to the extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person. The amount of any Indebtedness outstanding as of any date shall
be the accreted value thereof, in the case of any Indebtedness issued with original issue



5









 







discount. In addition, the amount of any Indebtedness shall also include the amount of all
Obligations of such Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock or, with respect to any Restricted Subsidiary of the Company, any preferred
stock of such Restricted Subsidiary.



     “Indenture” means this Indenture as amended or supplemented from time to time.



     “Interest Payment Date” means April 15 and October 15 of each year, commencing October
15, 2009.



     “Issue Date” means the date on which the Notes are first issued and authenticated
under the Indenture.



     “Lien” means, with respect to any asset, any mortgage, lien, pledge, fixed or floating
charge, security interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any conditional sale or
other title retention agreement, any lease in the nature thereof; provided that the term
“Lien” shall not include any lease properly classified as an operating lease in accordance
with GAAP.



     “Material Subsidiary” means any Subsidiary of the Company that at the date of
determination is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act.



     “Maturity Date” means April 15, 2014.



     “Non-Affiliate Notes” means all Notes other than Affiliate Notes.



     “Non-Affiliate Restricted Stock Legend” means the legend labeled as such and that is
set forth in Exhibit D hereto, which is incorporated in and expressly made a part of this
Indenture.



     “Note Custodian” means U.S. Bank National Association, as custodian with respect to
any Global Security, or any successor entity thereto.



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



     “Officer” means the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, the Chief Accounting Officer, any Executive Vice President, Senior
Vice President or Vice President (whether or not designated by a number or numbers or word or words
before or after the title “Vice President”), the Treasurer, any other executive officer,
the Secretary and any Assistant Treasurer or any Assistant Secretary of the Company.



     “Officer’s Certificate” means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company.



6









 





     “Opinion of Counsel” means a written opinion from legal counsel who may be an employee
of or counsel to the Company or the Trustee except to the extent otherwise indicated in this
Indenture.



     “Permitted Bank Debt” means Indebtedness incurred by the Company or any Restricted
Subsidiary other than a Foreign Subsidiary pursuant to the Credit Facilities, any Receivables
Program, or one or more other term loan and/or revolving credit or commercial paper facilities
(including any letter of credit subfacilities) entered into with commercial banks and/or financial
institutions, and any replacement, extension, renewal, refinancing or refunding thereof.



     “Permitted Holders” means James J. Kim and his estates, spouses, ancestors and lineal
descendants (and spouses thereof), the legal representatives of any of the foregoing, and the
trustee of any bona fide trust of which one or more of the foregoing are the sole beneficiaries or
the grantors, or any Person of which any of the foregoing, individually or collectively,
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities
representing at least a majority of the total voting power of all classes of Capital Stock of such
Person (exclusive of any matters as to which class voting rights exist); provided, however, that if
at any time the foregoing Persons own in the aggregate 70% or more of the Company’s Voting Stock,
none of the foregoing Persons shall thereafter be deemed to be a Permitted Holder.



     “Permitted Junior Securities” means securities that (i) are subordinated to Senior
Debt and any Guarantee in respect thereof, at least to the same extent as the Notes are
subordinated to Senior Debt, and all securities issued in exchange for, or on account of, Senior
Debt or any such Guarantee (“Reorganization Senior Debt”), (ii) have a final maturity date
that is the same or greater than the Notes (iii) are not subject to any required principal payment,
sinking fund payment or redemption prior to the last scheduled final maturity date of any
Reorganization Senior Debt, and (iv) are not secured by any collateral.



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



     “Receivables Program” means, with respect to any Person, an agreement or other
arrangement or program providing for the advance of funds to such Person against the pledge,
contribution, sale or other transfer of encumbrances of Receivables Program Assets of such Person
or such Person and/or one or more of its Subsidiaries.



     “Receivables Program Assets” means all of the following property and interests in
property, including any undivided interest in any pool of any such property or interests, whether
now existing or existing in the future or hereafter arising or acquired: (i) accounts; (ii)
accounts receivable, general intangibles, instruments, contract rights, documents and chattel paper
(including, without limitation, all rights to payment created by or arising from sales of goods,
leases of goods, or the rendition of services, no matter how evidenced, whether or not earned by
performance) (iii) all unpaid seller’s or lessor’s rights (including, without limitation,
rescission, replevin, reclamation and stoppage in transit) relating to any of the foregoing or
arising therefrom; (iv) all rights to any goods or merchandise represented by any of the foregoing
(including, without limitation, returned or repossessed goods); (v) all reserves and credit



7









 







balances with respect to any such accounts receivable or account debtors; (vi) all letters of
credit, security or Guarantees of any of the foregoing; (vii) all insurance policies or reports
relating to any of the foregoing; (viii) all collection or deposit accounts relating to any of the
foregoing; (ix) all books and records relating to any of the foregoing; (x) all instruments,
contract rights, chattel paper, documents and general intangibles relating to any of the foregoing;
and (xi) all proceeds of any of the foregoing.



     “Regular Record Date” means the April 1 or October 1 immediately preceding each
Interest Payment Date.



     “Representative” means (a) the indenture trustee or other trustee, agent or
representative for any Senior Debt or (b) with respect to any Senior Debt that does not have any
such trustee, agent or other representative, (i) in the case of such Senior Debt issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of such Senior Debt,
any holder or owner of such Senior Debt acting with the consent of the required Persons necessary
to bind such holders or owners of such Senior Debt and (ii) in the case of all other such Senior
Debt, the holder or owner of such Senior Debt.



     “Resale Restriction Delegending Date” means the date that is one year from the
original Issue Date of the Notes.



     “Restricted Note” means any Note until such time as (i) such Note has been transferred
pursuant to an effective shelf registration statement or (ii) the Restricted Securities Legend
therefor as been removed pursuant to Section 2.07(b), (c) or (d).



     “Restricted Securities Legend” means the legend labeled as such and that is set forth
in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.



     “Restricted Stock Legend” means the Affiliate Restricted Stock Legend, the
Non-Affiliate Restricted Stock Legend or both, as the context may require, as set forth in Exhibit
D hereto, which is incorporated in and expressly made a part of this Indenture.



     “Restricted Subsidiary” of a Person means any Subsidiary treated as a “Restricted
Subsidiary” under the Senior Notes Indentures or any indenture governing the Existing Pari
Passu Indebtedness.



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



     “Senior Debt” means: (i) the Senior Notes and all Obligations under the Senior Notes
Indentures; (ii) all Indebtedness outstanding under Permitted Bank Debt and all Hedging Obligations
with respect thereto; (iii) any other Indebtedness permitted to be incurred by the Company under
the terms of the Senior Notes Indentures, unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or subordinated in right of payment to the
Notes; and (iv) any Guarantee by the Company or any Guarantor of any Indebtedness of any Foreign
Subsidiary incurred in compliance with the Senior Notes Indentures; (v) all Obligations with
respect to the items listed in the preceding clauses (i), (ii), (iii) and (iv). Notwithstanding
anything to the contrary in the preceding, Senior Debt (other than



8









 







any Obligations with respect to Permitted Bank Debt) will not include: (a) any liability for
federal, state, local or other taxes owed or owing by the Company; (b) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates; (c) any trade payables; (d) the Existing
Pari Passu Indebtedness; (e) Indebtedness evidenced by the Notes; (f) Indebtedness that is
expressly subordinate or junior in right of payment to any other Indebtedness of the Company; (g)
any obligation that by operation of law is subordinate to any general unsecured obligations of the
Company; or (h) any Indebtedness that is incurred in violation of the Senior Notes Indentures.



     “Senior Notes” means the Company’s 7.125% Senior Notes due 2011, the Company’s 7.75%
Senior Notes due 2013 and the Company’s 9.25% Senior Notes due 2016.



     “Senior Notes Indentures” means the indentures governing the Senior Notes.



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



     “Termination of Trading” means the occurrence of the following: the Common Stock (or
other common stock into which the Notes are then convertible) is neither listed for trading on a
United States national securities exchange (including the Nasdaq Global Select Market) nor approved
for trading on an established automated over-the-counter trading market in the United States.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in
effect on the Issue Date, except as provided in Sections 9.03 and 12.06.



     “Trustee” means the party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor.



     “Trust Officer” means an officer in the Corporate Trust Office of the Trustee.



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



     “U.S. Government Obligations” means direct obligations (or certificates representing
an ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged. In order to have money available on a payment date to pay principal or
interest on the Notes, the U.S. Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. U.S. Government
Obligations shall not be callable at the issuer’s option.



9









 





     “Voting Stock” of a Person means all classes of Capital Stock or other interests
(including partnership interests) of such Person then outstanding and normally entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.



     SECTION 1.02. Other Definitions.



	 	 	 
	 	 	Defined in Section
	“50% Affiliated Holder”

	 	Section 6.02
	“Bankruptcy Law”

	 	Section 6.01
	“Business Day”

	 	Section 10.07
	“Closing Sale Price”

	 	Section 12.05(g)
	“Current Market Price”

	 	Section 12.05(g)
	“Conversion Agent”

	 	Section 2.03
	“Custodian”

	 	Section 6.01
	“Definitive Security”

	 	Section 2.07(b)
	“Designated Event Date”

	 	Section 4.06
	“Designated Event Offer”

	 	Section 4.06
	“Designated Event Offer Termination Date”

	 	Section 4.06
	“Designated Event Payment”

	 	Section 4.06
	“Designated Event Payment Date”

	 	Section 4.06
	“Distributed Securities”

	 	Section 12.05(d)
	“Distribution Determination Date”

	 	Section 12.05(e)
	“Effective Date”

	 	Section 12.12
	“Event of Default”

	 	Section 6.01
	“Expiration Date”

	 	Section 12.05(f)
	“Expiration Time”

	 	Section 12.05(f)
	“ex” date

	 	Section 12.05(g)
	“fair market value”

	 	Section 12.05(g)
	“Legal Holiday”

	 	Section 10.07
	“Make Whole Premium”

	 	Section 12.12
	“Notes”

	 	Preamble
	“Paying Agent”

	 	Section 2.03
	“Payment Blockage Notice”

	 	Section 11.03
	“Purchased Shares”

	 	Section 12.05(f)
	“Record Date”

	 	Section 12.05(g)
	“Reference Property”

	 	Section 12.06
	“Register”

	 	Section 2.03
	“Registrar”

	 	Section 2.03
	“Rights”

	 	Section 12.05(i)
	“Rights Plan”

	 	Section 12.05(i)
	“Spin-off Securities”

	 	Section 12.05(d)
	“Spinoff Valuation Period”

	 	Section 12.05(d)
	“Stock Price”

	 	Section 12.12
	“Trading Day”

	 	Section 12.05(g)
	“Triggering Distribution”

	 	Section 12.05(e)
	“Trustee”

	 	Preamble






10









 






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



     (a) “Commission” means the Commission;



     (b) “indenture securities” means the Notes;



     (c) “indenture security holder” means a Holder;



     (d) “indenture to be qualified” means this Indenture; “indenture trustee” or
“institutional trustee” means the Trustee; and



     (e) “obligor” on the Notes means the Company or any other obligor on the Notes.



     All other terms in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by Commission rule under the TIA have the meanings so assigned to them.



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




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




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




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




     (5) the male, female and neuter genders include one another;




     (6) references to the payments of interest on the Notes shall include additional
interest payable pursuant to Section 6.02(b) (if any) and additional interest due as
result of any increase in the interest rate pursuant to Section 4.10 (if any);




     (7) the word “including” wherever used will be deemed to be followed by the word
“without limitation”;




     (8) references to agreements and other instruments include subsequent amendments
thereto; and




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



11









 





     The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.



ARTICLE II




THE NOTES




     SECTION 2.01. Form and Dating.



     (a) Form and Dating.




     (i) The Notes shall be issued in the form of one or more definitive, fully registered
form of securities without interest coupons. The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto, as the case
may be. The terms and provisions of the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and, to the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.




     (ii) Except as otherwise expressly permitted in this Indenture, all Notes shall be
identical in all respects. Notwithstanding any differences among them, all Notes issued
under this Indenture shall vote and consent together on all matters as one class.




     (iii) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued
in the form of one or more permanent Global Securities. Each such Global Security shall be
issued with the Restricted Securities Legend and the Global Securities Legend.




     (iv) Notes originally offered and sold to Affiliated Entities (“Affiliate
Notes”) will be issued in the form of one or more Definitive Securities. Each Affiliate
Note shall be issued with the Affiliate Security Legend, set forth in Exhibit A hereto,
which is incorporated in and expressly made a part of this Indenture. Upon such issuance,
the Registrar shall register such Affiliate Notes in the name of the beneficial owner or
owners of such Note (or the nominee of such beneficial owner or owners) and deliver the
certificates for such Affiliate Notes to the respective beneficial owner or owners (or the
nominee of such beneficial owner or owners). Affiliate Notes will bear the Affiliate
Securities Legend set forth in Exhibit A unless otherwise agreed by the Company (with
written notice thereof to the Trustee).




     (v) Any Global Security shall be deposited on behalf of the purchasers of the
Non-Affiliate Notes represented thereby with the Trustee, as custodian for the Depositary,
and registered in the name of the Depositary or a nominee of the Depositary for the accounts
of participants in the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of any Global Security may
from time to time be increased or decreased by adjustments



12









 







made on the records of the Trustee and the Depositary or its nominee as hereinafter
provided. Any Global Security may be represented by more than one certificate.




     (vi) The Notes may have notations, legends or endorsements as specified in this
Indenture or as otherwise required by law, stock exchange rule or Depositary rule or usage.
The Company shall approve the form of the Notes and any notation, legend or endorsement on
them.



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



     The Company shall execute and the Trustee shall, in accordance with this Section 2.01(b) and
upon Company Order, authenticate and deliver initially one or more Global Securities that (i) shall
be registered in the name of the Depositary or a nominee of the Depositary (which, in the case of
DTC, shall initially be Cede & Co.), (ii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary
pursuant to (in the case of DTC) a FAST Balance Certificate Agreement between the Depositary and
the Trustee, and (iii) shall bear appropriate legends as set forth herein.



     Except as provided in Section 2.11(b)(iv), Agent Members shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the Depositary or by the
Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the operation of customary
practices of such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.



     (c) Definitive Securities. Except as provided in Section 2.07 and 2.11, owners of
beneficial interests in Global Securities will not be entitled to receive physical delivery of
certificated Notes in definitive form. Purchasers of Affiliate Notes will receive Definitive
Securities bearing the Affiliate Securities Legend.



     SECTION 2.02. Execution and Authentication.



     (a) One Officer shall sign the Notes for the Company by manual or facsimile signature.



     (b) If an Officer whose signature is on a Note no longer holds that office at the time the
Note is authenticated, the Note shall nevertheless be valid.



     (c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.



13









 





     (d) Upon Company Order, the Trustee shall authenticate Notes for original issue. The
aggregate principal amount of Notes outstanding at any time may not exceed $250,000,000, except as
provided in Section 2.08.



     (e) The Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 or any integral multiple thereof.



     (f) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same right as an Agent to deal with the Company or an Affiliate of
the Company.



     (g) If any successor that has replaced the Company in accordance with Article V has executed
an indenture supplemental hereto with the Trustee pursuant to Article V, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at the request of such
successor, be exchanged for other Notes executed in the name of the such successor with such
changes in phraseology and form as may be appropriate, but otherwise identical to the Notes
surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of
such successor, shall authenticate and deliver Notes as specified in such order for the purpose of
such exchange. If Notes shall at any time be authenticated and delivered in any new name of such
successor pursuant to this Section 2.02(g) in exchange or substitution for or upon registration of
transfer of any Notes, such successor, at the option of the Holders but without expense to them,
shall provide for the exchange of all Notes then outstanding for Notes authenticated and delivered
in such new name.



     SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent. The Company
shall maintain or cause to be maintained in such locations as it shall determine, which may be the
Corporate Trust Office, an office or agency: (i) where securities may be presented for registration
of transfer or for exchange (“Registrar”); (ii) where Notes may be presented for payment
(“Paying Agent”); (iii) an office or agency where Notes may be presented for conversion
(the “Conversion Agent”); and (iv) where notices and demands to or upon the Company in
respect of Notes and this Indenture may be served by the Holders. The Registrar shall keep a
Register (“Register”) of the Notes and of their transfer and exchange. The Company may
appoint one or more co-registrars, one or more additional paying agents and one or more additional
conversion agents. The term “Paying Agent” includes any additional paying agent and the term
“Conversion Agent” includes any additional Conversion Agent. The Company may change any Paying
Agent, Registrar, Conversion Agent or co-registrar without prior notice. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture and shall enter into
an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar
not a party to this Indenture. Such agency agreement shall implement the provisions of this
Indenture that relate to such Agent (including any applicable terms of the TIA). The Company or
any of its subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar,
except that for purposes of Article VIII and Section 4.06, neither the Company nor any of its
subsidiaries shall act as Paying Agent. If the Company fails to appoint or maintain another entity
as Registrar, or Paying Agent or Conversion Agent, the Trustee shall act as such, and the Trustee
shall initially act as such. The Company initially



14









 







designates the Borough of Manhattan office of the Trustee as one such office or agency of the
Company required by this Section 2.03 and appoints the Trustee as Registrar, Paying Agent and agent
for service of demands and notices in connection with the Notes and this Indenture until such time
as another Person is appointed as such.



     SECTION 2.04. Paying Agent To Hold Money in Trust. The Company shall require each
Paying Agent (other than the Trustee, who hereby so agrees), to agree in writing that the Paying
Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying
Agent for the payment of principal or interest on the Notes, and will notify the Trustee of any
default by the Company in respect of making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money. If the Company or a Subsidiary of the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
of all money held by it as Paying Agent. Upon any proceeding under any Bankruptcy Law with respect
to the Company or any of its Affiliates, if the Company or such Affiliate is then acting as Paying
Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent.



     SECTION 2.05. Holder 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 Holders
and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least seven Business Days before each Interest Payment
Date, and as the Trustee may request in writing within fifteen (15) days after receipt by the
Company of any such request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses of the Holders.



     SECTION 2.06. Legends; Transfer Restrictions.



     (a) Each Global Security shall bear the Global Securities Legend.



     (b) Each Restricted Note shall bear the Restricted Securities Legend. Each Note that bears or
is required to bear the Restricted Securities Legend shall be subject to the restrictions on
transfer set forth therein, and each Holder of such Note, by such Holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer.



     (c) Each Affiliate Note shall bear the Affiliate Security Legend. Each Note that bears or is
required to bear the Affiliate Security Legend shall be subject to the restrictions on transfer set
forth therein, and each Holder of such Note, by such Holder’s acceptance thereof, agrees to be
bound by all such restrictions on transfer.



     (d) As used in Sections 2.06 and 2.07, the term “transfer” includes any sale, pledge, transfer
or other disposition whatsoever of any Restricted Note or any Affiliate Note. The Registrar shall
not register any transfer of a Restricted Note or an Affiliate Note not made in accordance with the
restrictions on transfer set forth in Sections 2.06 and 2.07.



15









 





     (e) Every stock certificate representing Common Stock issued in the circumstances described in
Section 12.11 hereof shall bear the applicable Restricted Stock Legend unless removed in accordance
with the provisions of Section 12.11.



     SECTION 2.07. Transfer and Exchange. (a) When Notes are presented to the Registrar or
a co-registrar with a request to register a transfer or to exchange them for an equal principal
amount of Notes for other denominations, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions specified herein and the related certificate are
met. To permit registrations of transfers and exchanges, the Company shall issue and the Trustee
shall authenticate Notes at the Registrar’s request, bearing registration numbers not
contemporaneously outstanding. No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the Company may require
payment of a sum sufficient to cover any transfer tax or other governmental charge payable upon
exchanges pursuant to Sections 2.11, 9.05 or 12.02.



     The Company or the Registrar shall not be required to register the transfer of any Notes
surrendered for repurchase pursuant to Section 4.06.



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



     (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole
or in part, or of any beneficial interest therein, shall only be made in accordance with this
Section 2.07(b), Section 2.11 and the Applicable Procedures; provided, however, that beneficial
interests in a Global Security that is a Restricted Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in such Global Security in accordance with
the transfer restrictions set forth in the Restricted Securities Legend.



     Except for transfers or exchanges made in accordance with paragraphs (i) through (iii) of this
Section 2.07(b) and Section 2.11, transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to nominees of the Depositary or to a successor of
the Depositary or such successor’s nominee.




   (i) Global Security To Definitive Security. If an owner of a beneficial interest in a
Global Security deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes at any time to transfer its interest in such Global Security to a Person
who is required to take delivery thereof in the form of a definitive registered note (such
Note, a “Definitive Security”), such owner may, subject to the restrictions on
transfer set forth herein and such Global Security and the Applicable Procedures, cause the
exchange of such interest for one or more Definitive Securities of any authorized
denomination or denominations and of the same aggregate principal amount. Upon receipt by
the Registrar of (1) instructions from the Depositary directing the Trustee to authenticate
and deliver one or more Definitive Securities of the same aggregate principal amount as the
beneficial interest in the Global Security to be exchanged (such instructions to contain the



16









 







name or names of the designated transferee or transferees, the authorized denomination
or denominations of the Definitive Securities to be so issued and appropriate delivery
instructions), and (2) in the case of a Restricted Note, such certifications or other
information and, in the case of transfers pursuant to Rule 144 under the Securities Act,
legal opinions as the Company may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, then the Registrar will instruct the Depositary to
reduce or cause to be reduced such Global Security by the aggregate principal amount of the
beneficial interest therein to be exchanged and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in the Global Security
that is being transferred, and concurrently with such reduction and debit the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities
of the same aggregate principal amount in accordance with the instructions referred to
above.




   (ii) Definitive Security to Definitive Security. If a Holder of a Definitive Security
wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who
is required to take delivery thereof in the form of a Definitive Security, such Holder may,
subject to the restrictions on transfer set forth herein and in such Definitive Security,
cause the transfer of such Definitive Security (or any portion thereof in a principal amount
equal to an authorized denomination) to such transferee. Upon receipt by the Registrar of
(1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such
Holder directing the Trustee to authenticate and deliver one or more Definitive Securities
of the same aggregate principal amount as the Definitive Security, or portion thereof, to be
transferred (such instructions to contain the name or names of the designated transferee or
transferees, the authorized denomination or denominations of the Definitive Securities to be
so issued and appropriate delivery instructions), and (3) in the case of a Restricted Note
or an Affiliate Note, such certifications or other information (including, in the case of a
transfer of an Affiliate Note from an Affiliated Entity to another Affiliated Entity, a
certificate substantially in the form of Exhibit B hereto) and, in the case of transfers to
persons pursuant to Rule 144 under the Securities Act, legal opinions as the Company may
reasonably require to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the Securities
Act, then the Registrar, shall cancel or cause to be canceled such Definitive Security and
concurrently therewith, the Company shall execute, and the Trustee shall authenticate and
deliver, one or more Definitive Securities in the appropriate aggregate principal amount, in
accordance with the instructions referred to above and, if only a portion of a Definitive
Security is transferred as aforesaid, concurrently therewith the Company shall execute and
the Trustee shall authenticate and deliver to the transferor a Definitive Security in a
principal amount equal to the principal amount which has not been transferred. A Holder of
a Definitive Security may at any time exchange such Definitive Security for one or more
Definitive Securities of other authorized denominations and in the same aggregate principal
amount and registered in the same name by delivering such Definitive Security, duly endorsed
as provided herein, to the Trustee together with instructions directing the Trustee to
authenticate and deliver one or more Definitive Securities in the same aggregate principal
amount and registered in the same name as the Definitive Security to



17









 







be exchanged, and the Registrar thereupon shall cancel or caused to be canceled such
Definitive Security and concurrently therewith the Company shall execute and Trustee shall
authenticate and deliver, one or more Definitive Securities in the same aggregate principal
amount and registered in the same name as the Definitive Security being exchanged.




   (iii) Definitive Security to Global Security. If a Holder of a Definitive Security
wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who
is not required to take delivery thereof in the form of a Definitive Security, such Holder
shall, subject to the restrictions on transfer set forth herein and in such Definitive
Security and the rules of the Depositary cause the exchange of such Definitive Security for
a beneficial interest in the Global Security. Upon receipt by the Registrar of (1) such
Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder
directing the Trustee to increase the aggregate principal amount of the Global Security
deposited with the Depositary or with the Trustee as custodian for the Depositary by the
same aggregate principal amount as the Definitive Security to be exchanged, such
instructions to contain the name or names of a member of, or participant in, the Depositary
that is designated as the transferee, the account of such member or participant and other
appropriate delivery instructions, (3) the assignment form on the back of the Definitive
Security completed in full, and (4) in the case of a Restricted Note or an Affiliate Note,
such certifications or other information and legal opinions (which shall be required in the
case of transfers of any Affiliate Note by any Affiliated Entity pursuant to Rule 144 under
the Securities Act), as the Company may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Trustee shall cancel or cause to
be canceled such Definitive Security and concurrently therewith shall increase the aggregate
principal amount of the Global Security by the same aggregate principal amount as the
Definitive Security canceled; provided, that in the case of any transfer of an Affiliate
Note to a Person taking delivery thereof as a beneficial interest in a Global Security, any
such transfer shall be made only pursuant either (i) in a transaction complying with Rule
144 or (ii) pursuant to an effective shelf registration statement, such effectiveness to be
certified by the Company to the Trustee or (iii) to Persons who agree to be bound by the
restrictions applicable to such Holders for so long as such transferred securities
constitutes “restricted securities.”



     (c) So long as and to the extent that the Non-Affiliate Notes are represented by one or more
Global Securities held by or on behalf of the Depositary only, the Company may accomplish any
delegending of such Non-Affiliate Notes represented by such Global Securities at any time on or
after the Resale Restriction Delegending Date by:




     (i) providing written notice to the Trustee that the Resale Restriction Delegending
Date has occurred and instructing the Trustee to remove the Restricted Securities Legend
from the Notes;




     (ii) providing written notice to Holders of the Non-Affiliate Notes that the Restricted
Securities Legend has been removed or deemed removed;



18









 






     (iii) providing written notice to the Trustee and the Depositary to change the CUSIP
number for the Non-Affiliate Notes to the applicable unrestricted CUSIP number; and




     (iv) complying with any Applicable Procedures for delegending;


whereupon the Restricted Securities Legend shall be deemed removed from any Global Securities
without further action on the part of Holders.




     On and after the Resale Restriction Delegending Date, the Company shall also (i) instruct the
transfer agent for the Common Stock to remove the Restricted Stock Legend from any Common Stock
issued upon conversion of the Non-Affiliate Notes, (ii) notify the holders of any Common Stock
issued upon conversion of the Non-Affiliate Notes (to the extent any Common Stock has been issued
upon conversion of the Non-Affiliate Notes) that such Restricted Stock Legend has been removed,
(iii) if relevant, notify the transfer agent for the Common Stock to change the CUSIP number for
the Common Stock issued upon conversion of the Non-Affiliate Notes to the applicable unrestricted
CUSIP number, and (iv) comply with any Applicable Procedures for delegending any Common Stock
including the Restricted Stock Legend.



     (d) Transfers of Notes and Restricted Notes.




(i) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global
Security) not bearing (or not required to bear upon such transfer, exchange or replacement)
a Restricted Securities Legend, the Registrar shall exchange such Notes (or beneficial
interests) for Notes (or beneficial interests in a Global Security) not bearing a Restricted
Securities Legend.




(ii) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a
Global Security) bearing a Restricted Securities Legend at any time prior to the time the
Company has provided notice of the occurrence of the Resale Restriction Delegending Date,
the Registrar shall deliver only Notes (or beneficial interests in a Global Security)
bearing a Restricted Securities Legend unless (i) such Notes (or beneficial interests) are
transferred pursuant to an effective shelf registration statement; (ii) such Notes (or
beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of
a certificate of the transferor in the form of Exhibit C and an Opinion of Counsel
reasonably satisfactory to the Registrar; (iii) such Notes (or beneficial interests) are not
Affiliate Notes and are transferred, replaced or exchanged after the Resale Restriction
Delegending Date; or (iv) in connection with such transfer, exchange or replacement the
Registrar shall have received an Opinion of Counsel, certificates and such other evidence
reasonably required by and satisfactory to it to the effect that neither such Restricted
Securities Legend nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act. The Company shall deliver to the
Trustee an Officer’s Certificate promptly upon effectiveness, withdrawal or suspension of
any shelf registration statement that is or has previously been declared effective with
respect to the Notes.




19











 





     (e) Any transfer of Restricted Notes not described above (other than a transfer of a
beneficial interest in a Global Security that does not involve an exchange of such interest for a
Definitive Security or a beneficial interest in another Global Security, which must be effected in
accordance with applicable law and the Applicable Procedures, but is not subject to any procedure
required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of
Counsel, certificates and such other evidence reasonably required by and satisfactory to it in
order to ensure compliance with the Securities Act, or as otherwise set forth in this Indenture.



     (f) Any Non-Affiliate Note or Common Stock issued upon the conversion or exchange of a
Non-Affiliate Note that, prior to the date upon which the Company instructs the Trustee to remove
the Restricted Securities Legend pursuant to Section 2.07(c) above, is purchased or owned by the
Company or any Affiliate thereof, may not be resold by the Company or such Affiliate unless
registered under the Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction that results in such Non-Affiliate Note or
Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule
144).



     (g) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or
not taken by the Depositary. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Notes shall be given or made only to or upon the
order of the registered Holders (which shall be the Depositary or its nominee in the case of a
Global Security). The rights of beneficial owners in any Global Security shall be exercised only
through the Depositary subject to the Applicable Procedures. The Trustee may rely and shall be
fully protected in relying upon information furnished by the Depositary with respect to its Agent
Members and any beneficial owners.



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



     SECTION 2.08. Replacement Notes. If the Holder of a Note claims that the Note has
been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee
or the Company as a condition of receiving a replacement Note, such Holder shall provide a
certificate of loss and an indemnity and/or an indemnity bond sufficient, in the judgment of both
the Company and the Trustee, to fully protect the Company, the Trustee, any Agent and any
authenticating agent from any loss, liability, cost or expense which any of them may suffer or
incur if the Note is replaced. The Company and the Trustee may charge the relevant Holder for
their expenses in replacing any Note.



20









 





     The Trustee or any authenticating agent may authenticate any such substituted Note, and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected therewith. In case any
Note which has matured or is about to mature, or has been submitted for repurchase pursuant to
Section 4.06 or is about to be converted into Common Stock pursuant to Article XII, shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Note,
pay or authorize the payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for
such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to the
authenticating agent such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or connected with such substitution,
and, in case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and,
if applicable, any Paying Agent or Conversion Agent of the destruction, loss or theft of such Note
and of the ownership thereof.



     Every replacement Note is an additional obligation of the Company and shall be entitled to all
the benefits provided under this Indenture equally and proportionately with all other Notes duly
issued, authenticated and delivered hereunder.



     SECTION 2.09. Outstanding Notes. The Notes outstanding at any time are all the Notes
properly authenticated by the Trustee except for those canceled by the Trustee, those delivered to
it for cancellation, and those described in this Section as not outstanding.



     If a Note is replaced pursuant to Section 2.08, it shall cease to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.



     If Notes are considered paid under Section 4.01 or converted under Article XII, they shall
cease to be outstanding and interest on them shall cease to accrue.



     Subject to Section 2.10 hereof, a Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Note.



     SECTION 2.10. When Treasury Notes Disregarded. In determining whether the Holders of
the required principal amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company or an Affiliate of the Company shall be considered as though they are not
outstanding except that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which the Trustee knows are so owned
shall be so disregarded; provided, however, that this Section 2.10 shall not apply
to any Affiliate Notes beneficially owned by an Affiliated Entity to the extent specified in
Article VI and Article IX of this Indenture; and further provided that such proviso
shall cease to apply to such Affiliate Notes at any time after their transfer to a beneficial owner
that is not an Affiliated Entity (even if such Notes are subsequently reacquired by an Affiliated
Person), at which time such Notes shall no longer be deemed to be Affiliate Notes, but only to the
extent of the Notes so transferred.



21









 





     SECTION 2.11. Temporary Notes; Definitive Securities.



     (a) Until definitive Notes are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate for temporary Notes
and shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.



     (b) Definitive Securities.




     (i) Except for transfers made in accordance with Section 2.07(b), a Global Security
deposited with the Depositary or with the Trustee as custodian for the Depositary pursuant
to Section 2.01 shall be transferred to the beneficial owners thereof in the form of
Definitive Securities only if such transfer complies with Section 2.07 and (x) the
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for
such Global Security or if at any time such Depositary ceases to be a “clearing agency”
registered under the Exchange Act and a successor Depositary is not appointed by the Company
within 90 days of such notice, or (y) an Event of Default has occurred and is continuing or
(z) the Company, in its discretion, at any time determines not to have all of the Notes
represented by a Global Security.




     (ii) In connection with the exchange of an entire Global Security for Definitive
Securities pursuant to clause (x) of Section 2.11(b)(i), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Definitive Securities of authorized denominations, and the
Registrar shall register such exchanges in the Register.




     (iii) In connection with the exchange of an entire Global Security for Definitive
Securities pursuant to clause (y) of Section 2.11(b)(i), if an Event of Default has occurred
and is continuing, upon receipt by the Registrar of instructions from Agent Members on
behalf the owner of a beneficial interest in a Global Security directing the Registrar to
exchange such beneficial owner’s beneficial interest in such Global Security for Definitive
Securities, subject to and in accordance with the Applicable Procedures, the Company shall
promptly execute, and upon Company Order the Trustee shall authenticate and make available
for delivery to such beneficial owner, Definitive Securities in a principal amount equal to
such beneficial interest in such Global Security.




     (iv) If (A) an event described in Section 2.11(b)(i)(x) occurs and Definitive
Securities are not issued promptly to all beneficial owners or (B) the Registrar receives
from a beneficial owner instructions to obtain Definitive Securities due to an event
described in Section 2.11(b)(i)(y) and Definitive Securities are not issued promptly to any
such beneficial owner, the Company expressly acknowledges, with respect to the right of any
Holder to pursue a remedy pursuant to Section 6.06 hereof, the right of any beneficial owner
of Notes to pursue such remedy with respect to the portion of the Global Security



22









 






that represents such beneficial owner’s Notes as if such Definitive Securities had been
issued.



     (c) Any Global Security or interest thereon that is transferable to the beneficial owners
thereof in the form of Definitive Securities shall, if held by the Depositary, be surrendered by
the Depositary to the Trustee, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate principal amount of Notes
of authorized denominations in the form of certificated Notes in definitive form. Any portion of a
Global Security transferred pursuant to this Section shall be executed, authenticated and delivered
only in denominations of $1,000 and any integral multiple thereof and registered in such names as
the Depositary shall direct.



     (d) Prior to any transfer pursuant to Section 2.11(b), the registered Holder of a Global
Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder is entitled to
take under this Indenture or the Notes.



     (e) The Company will make available to the Trustee a reasonable supply of certificated Notes
in definitive form without interest coupons.



     SECTION 2.12. Cancellation. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
may cancel Notes surrendered for registration of transfer, exchange, payment, replacement,
conversion, repurchase or cancellation. Upon written instructions of the Company, the Trustee
shall destroy and dispose of canceled Notes as the Company directs and, after such destruction,
shall deliver a certificate of destruction to the Company. The Company may not issue new Notes to
replace Notes that it has paid or repurchased or that have been delivered to the Trustee for
cancellation or that any Holder has (i) converted pursuant to Article XII hereof, or (ii) submitted
for repurchase pursuant to Section 4.06 hereof (unless revoked pursuant to Section 4.06).



     SECTION 2.13. Defaulted Interest. If the Company fails to make a payment of interest
on the Notes, it shall pay such defaulted interest plus, to the extent lawful, any interest payable
on the defaulted interest. It may pay such defaulted interest, plus any such interest payable on
it, to the Persons who are Holders of Notes on a subsequent special record date. The Company shall
fix any such special record date and payment date. At least 15 days before any such special record
date, the Company shall mail to Holders of the Notes a notice that states the special record date,
payment date and amount of such interest to be paid.



     SECTION 2.14. CUSIP Number. (a) The Company, in issuing the Restricted Notes and the
Affiliate Notes, will use a restricted CUSIP number for such Notes until such time as the
Restricted Securities Legend or Affiliate Security Legend, as the case may be, is removed pursuant
to Section 2.07(c) or 2.07(d). At such time as the applicable restrictive legend is removed from
such Notes pursuant to Section 2.07(c) or (d), the Company will use an unrestricted CUSIP number
for such Note, but only with respect to the Notes where so removed.



23









 





     (b) The Company, upon issuing shares of Common Stock upon conversion of Restricted Notes or
Affiliate Notes, will use a restricted CUSIP number for such shares of Common Stock. With respect
to such share of Common Stock, until such time as the applicable Restricted Stock Legend is removed
pursuant to Section 2.07(c) or 2.07(d) from such share of Common Stock, as the case may be, such
restricted CUSIP will be the CUSIP numbers for such share of Common Stock. At such time as the
applicable restrictive legend is removed from such share of Common Stock pursuant to Section
2.07(c) or (d), an unrestricted CUSIP number for such share of Common Stock will be deemed to be
the CUSIP number therefor, but only with respect to the shares where so removed.



ARTICLE III




[Intentionally Omitted]




ARTICLE IV




COVENANTS




     SECTION 4.01. Payment of Notes. The Company shall pay the principal of and interest
on the Notes on the dates and in the manner provided in the Notes. Principal, interest or the
Designated Event Payment shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company or a Subsidiary of the Company or any Affiliate of the Company) holds as of
10:00 a.m. New York City time on that date immediately available funds designated for and
sufficient to pay all principal, interest and the Designated Event Payment then due; provided,
however, that money held by the Agent for the benefit of holders of Senior Debt pursuant to the
provisions of Article XI hereof or the payment of which to the Holders is prohibited by Article XI
shall not be considered to be designated for the payment of any principal of or interest on the
Notes within the meaning of this Section 4.01.



     To the extent lawful, the Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on (i) overdue principal, at the rate borne by Notes,
compounded semiannually; and (ii) overdue installments of interest (without regard to any
applicable grace period) at the same rate, compounded semiannually.



     SECTION 4.02. Reports. So long as any Notes are outstanding, the Company will (i)
file with the Commission within the time periods prescribed by its rules and regulations, and (ii)
furnish to the Trustee and the Holders within 15 days after the date on which the Company would be
required to file the same with the Commission pursuant to its rules and regulations, all quarterly
and annual financial information (without exhibits) required to be contained in a filing with the
Commission on Forms 10-Q and 10-K, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and, with respect to the annual consolidated financial
statements only, a report thereon by the Company’s independent auditors. The Company shall not be
required to file any report or other information with the Commission if the Commission does not
permit such filing, although such reports or other information will be required to be furnished to
the Trustee.



24









 






     If at any time the Company is not subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file all reports, if any, as would be required by the
provisions of Section 314(a) of the Trust Indenture Act with the Trustee and will furnish to
Holders, beneficial owners of the Notes and prospective purchasers of the Notes or shares of Common
Stock issuable upon conversion of the Notes, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) of the Securities Act.



     SECTION
4.03. Compliance Certificate. (a) The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate as to
such officer’s knowledge of the Company’s compliance with all conditions and covenants under this
Indenture (without regard to any period of grace or requirement of notice provided hereunder).



     (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon becoming aware of any Default or Event of Default, an Officer’s Certificate
specifying such Default or Event of Default.



     SECTION 4.04. Maintenance of Office or Agency. The Company shall maintain or cause to
be maintained the office or agency required under Section 2.03. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency not maintained by the Trustee. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof,
presentations, surrenders, notices and demands with respect to the Notes may be made or served at
the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designation.



     SECTION 4.05. Continued Existence. Subject to Article V, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence.



     SECTION 4.06. Repurchase Upon Designated Event. (a) Upon the occurrence of a
Designated Event (the date of each such occurrence being the “Designated Event Date”), the
Company shall notify the Holders and the Trustee in writing of such occurrence and shall be
required to make an offer (the “Designated Event Offer”) to repurchase all Notes then
outstanding at a repurchase price in cash (the “Designated Event Payment”) equal to 100% of
the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the
Designated Event Payment Date (as defined below).



     (b) Notice of a Designated Event and the Designated Event Offer shall be mailed by or at the
direction of the Company to the Holders as shown on the Register not more than 20 days after the
applicable Designated Event Date at the addresses as shown on the Register, with a copy to the
Trustee and the Paying Agent. The Designated Event Offer shall remain open until a specified date
(the “Designated Event Offer Termination Date”) which is at least 20 Business Days from the
date such notice is mailed. During the period specified in such notice, a Holder



25









 







may elect to tender its Notes in whole or in part in integral multiples of $1,000 in exchange
for cash. Payment shall be made by the Company in respect of Notes properly tendered pursuant to
this Section on a specified Business Day (the “Designated Event Payment Date”) which shall
be no earlier than five Business Days after the applicable Designated Event Offer Termination Date
and no later than 60 days after the applicable Designated Event. Unless and until the Trustee
shall receive a notice of the occurrence of a Designated Event, the Trustee may assume without
inquiry that none has occurred.



     (c) Such notice described in Section 4.06(b), which shall govern the terms of the Designated
Event Offer, shall include such disclosures as are required by law and shall state:




   (i) that a Designated Event Offer is being made pursuant to this Section 4.06 and that
all Notes will be accepted for payment;




   (ii) the transaction or transactions that constitute the Designated Event;




   (iii) the Designated Event Payment for each Note, the Designated Event Offer
Termination Date and the Designated Event Payment Date;




   (iv) that any Note not accepted for payment will continue to accrue interest in
accordance with the terms thereof;




   (v) that, unless the Company defaults on making the Designated Event Payment, any Note
accepted for payment pursuant to the Designated Event Offer shall cease to accrue interest
on the Designated Event Payment Date and no further interest shall accrue on or after such
date;




   (vi) that a Holder electing to have Notes repurchased pursuant to a Designated Event
Offer will be required to surrender its Notes to the Paying Agent at the address specified
in the notice prior to 5:00 p.m., New York City time, on the Designated Event Offer
Termination Date and must complete any form letter of transmittal proposed by the Company
and acceptable to the Trustee and the Paying Agent;




   (vii) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than 5:00 p.m., New York City time, on the Designated Event Offer
Termination Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder delivered for purchase, the Note certificate number
(if any) and a statement that such Holder is withdrawing his election to have such Notes
purchased;




   (viii) that Holders whose Notes are repurchased only in part will be issued Notes equal
in principal amount to the unpurchased portion of the Notes surrendered;




   (ix) the instructions that a Holder must follow in order to tender its Notes; and




   (x) that in the case of a Designated Event Offer Termination Date that is also an
Interest Payment Date, the interest payment, if any, due on such Interest Payment Date



26









 






shall be paid to the Person in whose name the Note is registered at the close of
business on the relevant Designated Event Offer Termination Date.



     (d) On the Designated Event Offer Termination Date the Company shall (i) accept for payment
all Notes or portions thereof properly tendered pursuant to the Designated Event Offer, (ii)
deposit with the Paying Agent an amount of money in immediately available funds sufficient to pay
the Designated Event Payment with respect to all Notes or portions thereof so tendered and accepted
and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officer’s Certificate setting forth the aggregate principal amount of Notes or portions thereof
tendered to and accepted for payment by the Company. On the Designated Event Payment Date, the
Paying Agent shall mail or deliver to the Holders of Notes so accepted, the Designated Event
Payment, and the Trustee shall promptly authenticate and mail or cause to be transferred by book
entry to such Holders a new Note equal in principal amount to any unpurchased portion of the Note
surrendered, if any; provided that such new Notes will be in a principal amount of $1,000 or an
integral multiple thereof. Any Notes not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof.



     (e) In the case of any reclassification, change, consolidation, merger, combination
assignment, sale, lease, conveyance or other transfer to which Section 12.06 applies, in which the
Common Stock of the Company is exchanged as a result into the right to receive stock, securities or
other property or assets (including cash) which includes shares of common stock of the Company or
another Person that are, or upon issuance will be, traded on a U.S. national securities exchange or
approved for trading on an established automated over-the-counter trading market in the United
States and such shares constitute at the time such change or exchange becomes effective in excess
of 50% of the aggregate fair market value of such stock, securities other property and assets
(including cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture (which shall comply with the TIA as in force at the date of execution of such
supplemental indenture) modifying the provisions of this Indenture relating to the right of Holders
to cause the Company to repurchase Notes following a Designated Event, including the applicable
provisions of this Section 4.06 and the definitions of Designated Event, Change of Control and
Termination of Trading, as appropriate, as determined in good faith by the Company (which
determination shall be conclusive and binding), to make such provision apply to such common stock
and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of
the Company and the Common Stock of the Company).



     (f) The Designated Event Offer shall be made by the Company in compliance with all applicable
provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to
the extent such laws and regulations are then applicable and shall include all instructions and
materials that the Company shall reasonably deem necessary to enable each such Holder to tender its
Notes.



     (g) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent
an election to have its Notes purchased shall have the right to withdraw such election in whole or
in a portion thereof that is a principal amount of $1,000 or in an integral multiple thereof if the
Paying Agent receives, not later than 5:00 p.m., New York City time, on



27









 







the Designated Event Offer Termination Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes the Holder delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is withdrawing his election to have
such Notes purchased in whole or in part.



     SECTION 4.07. Appointments to Fill Vacancies in Trustee’s Office. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.08, a Trustee, so that there shall at all times be a Trustee hereunder.



     SECTION 4.08. Stay, Extension and Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter enforced, that may affect the Company’s obligation to pay the
Notes; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law insofar as such law applies to the Notes, and covenants that
it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no
such law has been enacted.



     SECTION 4.09. Taxes. The Company shall, and shall cause each of its subsidiaries to,
pay prior to delinquency all taxes, assessments and government levies; provided, however, that the
Company shall not be required to pay or cause to be paid any such tax, assessment or levy (A) if
the failure to do so will not, in the aggregate, have a material adverse impact on the Company and
its subsidiaries taken as a whole, or (B) if the amount, applicability or validity is being
contested in good faith by appropriate proceedings.



     SECTION 4.10. Increased Interest Rate.



     (a) If at any time during the six months to one year period following the last original
issuance date of the Notes, (i) the Company fails to timely file any document or report that it is
required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other
than any Current Report on Form 8-K), (ii) the Company has not cured such failure to timely file
within 14 days of such failure and (iii) the Notes are not otherwise freely tradable by Holders
(other than Holders who are Affiliates of the Company) as a result of restrictions pursuant to the
U.S. securities laws or the terms of this Indenture or the Notes, the interest rate in respect of
the Notes shall be increased by 0.25% per annum for the first 90 days of such period following such
failure to file and by 0.50% per annum after the first 90 days of the period (in either case,
ending on the date that is one year from the Issue Date of the Notes) for which such failure to
file continues.



     (b) Unless:




     (i) the Restricted Securities Legend on the Notes (other than the Affiliate Notes) has
been removed, and




     (ii) the Notes (other than the Affiliate Notes) are freely tradable pursuant to Rule
144 under the Securities Act without volume restrictions by Holders other than



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Affiliates of the Company (without restrictions pursuant to U.S. securities law or the
terms of this Indenture or the Notes),


as of the 365th day after the date of original issuance of the Notes, either (x) the interest rate
on the Notes (other than the Affiliate Notes, unless and until such time as such Notes are
transferred to a Person that is not an Affiliated Entity) will be increased by 0.25% per annum for
the first 90 days of such period and by 0.50% per annum after the first 90 days of the period until
the foregoing requirements are satisfied or (y) if the Company elects, the Company shall no later
than the 410th day after the Issue Date (or, if at that time the Company is a “well known seasoned
issuer” as defined in Rule 405 under the Securities Act, the 385th day after such date) file and
maintain effective a resale registration statement relating to the Notes and the shares of Common
Stock issuable on conversion thereof (the “Shelf Registration Statement”); provided that if
the Company elects to file a Shelf Registration Statement pursuant to clause (y) above, the
interest rate on such Notes will not increase following the 365th day after the date of original
issuance of the Notes but shall instead increase as provided in clause (x) if such Shelf
Registration Statement has not become effective within the time period specified in such
clause (y).






(c) (i) In the event the Company elects to file a Shelf Registration Statement, the Company
shall use its commercially reasonable efforts to keep such Shelf Registration Statement
continuously effective under the Securities Act in order to permit the prospectus forming a
part thereof to be usable by Holders until the earliest of (i) the date the Restricted
Securities Legend has been removed from all Non-Affiliate Notes, (ii) all Non-Affiliate
Notes bearing a Restricted Securities Legend have ceased to be outstanding (whether as a
result of redemption, repurchase and cancellation, conversion or otherwise), (iii) all
Non-Affiliate Notes registered under the Shelf Registration Statement have been sold and
(iv) April 1, 2011 (the “Effectiveness Period”).




     (ii) The Company may suspend the use of any prospectus forming a part of the Shelf
Registration Statement, without incurring or accruing any obligation to pay additional
interest pursuant to Section 4.10(b), for a period not to exceed 45 calendar days in any
three-month period, or an aggregate of 90 calendar days in any twelve-month period, if the
Board of Directors of the Company shall have determined in good faith that because of valid
business reasons (not including avoidance of the Company’s obligations hereunder), including
without limitation proposed or pending corporate developments and similar events or because
of filings with the Commission, it is in the best interests of the Company to suspend such
use, and prior to suspending such use the Company provides the Holders with written notice
of such suspension, which notice need not specify the nature of the event giving rise to
such suspension. Each Holder shall keep confidential any communications received by it from
the Company regarding the suspension of the use of the Shelf Registration Statement and
prospectus forming a part thereof, except as required by applicable law.




     (iii) Subject to the Company’s right to suspend the use of the Shelf Registration
Statement and the prospectus forming a part thereof as set forth above, in the event that
(A) the Shelf Registration Statement ceases to be effective during the Effectiveness Period,
(B) the Holders of Non-Affiliate Notes are not authorized to use the



29









 






Shelf Registration Statement or the prospectus forming a part thereof or (B) the
Holders of Non-Affiliate Notes are otherwise prevented or restricted by the Company from
effecting sales pursuant to the Shelf Registration Statement (an “Effective
Failure”) for more than 45 days, whether or not consecutive, in any three-month period,
or for more than 90 days, whether or not consecutive, during any twelve-month period, then
the Company shall pay additional interest to Holders as set forth in the Section 4.10(b) as
though no Shelf Registration Statement had been declared effective, commencing on the date
of the Effective Failure to but excluding the earlier of the date such Effective Failure is
cured, waived or otherwise ceases to exist and the last day of the Effectiveness Period.
The payment of additional interest shall be the sole remedy of the Holders for any Effective
Failure or any other failure of the Company to comply with this Section 4.10(c) and no such
Effective Failure or other failure shall constitute a Default or Event of Default.



     (d) So long as a condition described in either paragraph (a) or (b) of this Section 4.10
continues or the Company is required to pay additional interest pursuant to paragraph (c) of this
Section 4.10, the Company shall pay such additional interest in cash on April 15 and October 15 of
each year to the Person who is the Holder of record of the Notes on the immediately preceding April
1 and October 1. When such condition ceases to continue, any accrued but unpaid additional
interest through the date of cessation shall be paid to the record Holder on the subsequent
Interest Payment Date.



     SECTION 4.11. Additional Interest Notice. In the event that the Company is required
to pay additional interest to Holders of Securities pursuant to Sections 4.10 or 6.02(b) hereof,
the Company shall provide a direction or order in the form of a written notice to the Trustee (and
if the Trustee is not the Paying Agent, the Paying Agent) of the Company’s obligation to pay such
additional interest no later than three Business Days prior to date on which any such additional
interest is scheduled to be paid. Such notice shall set forth the amount of additional interest to
be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the
Paying Agent, the Paying Agent) to make payment to the extent it receives funds from the Company to
do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to
determine whether additional interest is payable, or with respect to the nature, extent, or
calculation of the amount of additional interest owed, or with respect to the method employed in
such calculation of additional interest.



ARTICLE V




SUCCESSORS




     SECTION 5.01. When the Company May Merge, Etc. The Company may not, in a single
transaction or series of related transactions, consolidate or merge or combine with or into
(whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets to, any corporation as
an entirety or substantially as an entirety unless:



     (a) either:



30









 






   (i) the Company shall be the surviving or continuing corporation or




   (ii) the corporation formed by or surviving any such consolidation or merger or
combination (if other than the Company) or the corporation which acquires by sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of
the properties and assets of the Company




   (1) shall be a corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and




   (2) shall expressly assume the due and punctual payment of the principal of, and
interest on all the Notes and the performance of every covenant of the Company under the
Notes and the Indenture, including, without limitation, modifications to rights of
holders to cause the repurchase of Notes upon a Designated Event in accordance with
Section 4.06(e) and conversion rights in accordance with Section 12.06 to the extent
required by such Sections, pursuant to a supplemental indenture;



     (b) immediately after giving effect to such transaction no Default and no Event of Default
exists; and



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



     (d) For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise,
in a single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.



     SECTION 5.02. Successor Corporation Substituted. Upon any such consolidation, merger,
sale, assignment, conveyance, lease, transfer or other disposition in accordance with Section 5.01,
the successor corporation formed by such consolidation or into which the Company is merged or to
which such sale, assignment, conveyance, lease, transfer or other disposition is made will succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor had been named as the Company therein, and
thereafter (except in the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further obligations and covenants
under this Indenture and the Notes.



     SECTION 5.03. Purchase Option on Change of Control. This Article V does not affect
the obligations of the Company (including without limitation any successor to the Company) under
Section 4.06.



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ARTICLE VI




DEFAULTS AND REMEDIES




     SECTION 6.01. Events of Default. An “Event of Default” with respect to any Notes
occurs if:




     (a) the Company defaults in the payment of principal of the Notes when due at maturity,
upon repurchase, upon acceleration or otherwise, whether or not such payment is prohibited
by the subordination provisions set forth in Article XI of this Indenture; or




     (b) the Company defaults in the delivery when due of all Common Stock deliverable upon
conversion with respect to the Notes, which default continues for five days; or




     (c) the Company defaults in the payment of any installment of interest on the Notes
when due, whether or not such payment is prohibited by the subordination provisions set
forth in Article XI of this Indenture, including any interest payable in connection with a
repurchase pursuant to Section 4.06 or pursuant to Section 4.10, and continuance of such
default for 30 days or more; or




     (d) the Company defaults (other than a default set forth in clauses (a), (b) and (c)
above and clauses (e) and (f) below) in the performance of, or breaches, any other covenant
of the Company set forth in this Indenture or the Notes and fails to remedy such default or
breach within a period of 60 days after the receipt of written notice (“Notice”)
from the Trustee or the Holders of either (i) at least 25% in aggregate principal amount of
the then outstanding Non-Affiliate Notes or (ii) a 50% Affiliated Holder; or




     (e) the Company defaults in the payment of the Designated Event Payment in respect of
the Notes on the Designated Event Payment Date, whether or not such payment is prohibited by
the subordination provisions set forth in Article XI of this Indenture; or




     (f) the Company fails to provide timely notice of any Designated Event in accordance
with Section 4.06 hereof; or




     (g) failure of the Company or failure of any Material Subsidiary to make any payment at
maturity, including any applicable grace period, in respect of indebtedness for borrowed
money of, or guaranteed or assumed by, the Company or any Material Subsidiary, which payment
is in an amount in excess of $20,000,000, and continuance of such failure for 30 days after
the receipt of Notice; or




     (h) default by the Company or default by any Material Subsidiary with respect to any
indebtedness referred to in clause (g) above, which default results in the acceleration of
any such indebtedness of an amount in excess of $20,000,000 without such indebtedness having
been paid or discharged or such acceleration having been cured, waived, rescinded or
annulled for 30 days after the receipt of Notice; or



32









 






     (i) the Company or any Material Subsidiary, pursuant to or within the meaning of any
Bankruptcy Law:




     (i) commences a voluntary case,




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




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




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




     (v) makes the admission in writing that it generally is unable to pay its debts
as the same become due; or




     (j) a court of competent jurisdiction enters a judgment, order or decree under any
Bankruptcy Law that:




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




     (ii) appoints a Custodian of the Company or any Material Subsidiary, and the
order or decree remains unstayed and in effect for 90 days, or




     (iii) orders the liquidation of the Company or any Material Subsidiary, and the
order or decree remains unstayed and in effect for 90 days.



     The term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.



     SECTION 6.02. Acceleration. (a) If an Event of Default (other than an Event of
Default with respect to the Company specified in clauses (i) and (j) of Section 6.01) occurs and is
continuing, then and in every such case (i) the Trustee, by written notice to the Company, (ii) the
Holders of at least 25% in aggregate principal amount of the then outstanding Notes that are not
held by an Affiliated Entity, by written notice to the Company and the Trustee, or (iii) any
Affiliated Entity that beneficially owns at least 50% in aggregate principal amount of the
then-outstanding Notes (a “50% Affiliated Holder”), by written notice to the Company and
the Trustee, may declare the unpaid principal of, and accrued and unpaid interest, if any, on all
the Notes to be due and payable. Upon such declaration such principal amount, and accrued and
unpaid interest, if any, shall become immediately due and payable, notwithstanding anything
contained in this Indenture or the Notes to the contrary, but subject to the provisions of Article
XI hereof. If any Event of Default with respect to the Company specified in clauses (i) or (j) of
Section 6.01 occurs, all unpaid principal of and and accrued and unpaid interest, if any, on the
Notes then outstanding shall become automatically due and payable subject to the provisions of
Article XI hereof, without any declaration or other act on the part of the Trustee or any Holder.



33









 





     The Holders of a majority in aggregate principal amount of the then outstanding Notes that are
not held by an Affiliated Entity, by notice to the Trustee, may rescind an acceleration of the
Notes initiated by (i) the Trustee or (ii) the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes that are not held by an Affiliated Entity, and its
consequences if all existing Events of Default (other than nonpayment of principal of or and
interest, if any, on the Notes which has become due solely by virtue of such acceleration) have
been cured or waived and if the rescission would not conflict with any judgment or decree of any
court of competent jurisdiction. Any Affiliated Entity that beneficially owns at least 50% in
aggregate principal amount of the then-outstanding Notes may similarly rescind any acceleration of
the Notes initiated by a 50% Affiliated Holder, and the consequences of such acceleration, if all
existing Events of Default (other than nonpayment of principal of or interest on the Notes which
has become due solely by virtue of such acceleration) have been cured or waived and if the
rescission would not conflict with any judgment or decree of any court of competent jurisdiction.
No such rescission shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.



     (b) Notwithstanding any other provision in this Article VI, if the Company breaches its
obligation to file or furnish reports or other financial information pursuant to Section 314(a) of
the TIA or as otherwise required under this Indenture, the Company shall be required to pay
additional interest on the Notes, and the Holders will not have any immediate right under the
Indenture to accelerate the maturity of the Notes as a result of any such breach. If any such
breach continues for 60 days after notice thereof is given in accordance with the Indenture, the
Company will pay additional interest to all Holders at a rate per annum equal to 0.50% per annum to
but not including the 180th day following such notice (or such earlier date on which the Event of
Default relating to the reporting obligations referred to in this Section 6.02(b) shall have been
cured or waived). On such 180th day, such additional interest will cease to accrue (or earlier, if
the Event of Default relating to the reporting obligations referred to in this Section 6.02(b)
shall have been cured or waived prior to such 180th day) and, if the Event of Default is continuing
on such 180th day, the Notes will be subject to acceleration as provided in Section 6.02(a). The
provisions of this Section 6.02(b) will not affect the rights of the Holders in the event of the
occurrence of any other Event of Default, and are separate and distinct from, and in addition to,
the obligation of the Company to increase the interest rate of, and the amount of interest payable
on, the Notes pursuant to Section 4.10. Any additional interest paid pursuant to this Section
6.02(b) will be payable at the times and in the manner provided for the payment of regular interest
in the Notes (and all references herein to “interest” shall include the additional interest
provided for in this Section 6.02(b)).



     SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any provision of the Notes
or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Holder in exercising any right or remedy occurring upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.



34









 





     SECTION 6.04. Waiver of Past Defaults. Subject to the right of a 50% Affiliated
Holder to accelerate the Notes, the Holders of a majority in aggregate principal amount of the
then-outstanding Notes that are not held by an Affiliated Entity may, on behalf of the Holders of
all the Notes, waive an existing Default or Event of Default and its consequences, except a Default
or Event of Default in the payment of the principal of or interest on the Notes (other than the
non-payment of principal of or non-payment of interest, if any, on the Notes which has become due
solely by virtue of an acceleration which has been duly rescinded as provided above), or in respect
of a covenant or provision of this Indenture which cannot be modified or amended without the
consent of all Holders of Notes. When a Default or Event of Default is waived, it is cured and
stops continuing. No waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.



     SECTION 6.05. Control by Majority. The Holders of a majority in aggregate principal
amount of the then-outstanding Notes that are not held by an Affiliated Entity, or if a 50%
Affiliated Holder has accelerated the maturity of the Notes, such 50% Affiliated Holder, may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal
liability; provided that the Trustee shall have no duty or obligation (subject to Section 7.01) to
ascertain whether or not such actions of forbearances are unduly prejudicial to such Holders;
provided, further, that the Trustee may take any other action the Trustee deems proper that is not
inconsistent with such directions.



     SECTION 6.06. Limitation on Suits. A Holder may not pursue any remedy with respect to
this Indenture or the Notes unless:




   (1) the Holder gives to the Trustee notice of a continuing Event of Default;




   (2) (i) the Holders of at least 25% in principal amount of the then-outstanding
Notes that are not held by an Affiliated Entity or (ii) a 50% Affiliated Holder, as the
case may be, makes a request to the Trustee to pursue the remedy;




   (3) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;




   (4) the Trustee does not comply with the request within 60 days after receipt of
the request and the offer and, if requested, the provision of indemnity; and




   (5) during such 60-day period, in the case of clause (2)(i) above, the Holders of a
majority in principal amount of the then-outstanding Notes that are not held by an
Affiliated Entity do not give the Trustee a direction inconsistent with the request.



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



     SECTION 6.07. Rights of Holders To Receive Payment. Subject to the provisions of
Article XI hereof, notwithstanding any other provision of this Indenture, the right of any Holder



35









 







of a Note to receive payment of principal, and interest, if any, on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, or to bring suit for the enforcement of the right to
convert the Note shall not be impaired or affected without the consent of such Holder.



     SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section
6.01(a), (c) or (e) occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of principal and interest,
if any, remaining unpaid on the Notes and interest, if any, on overdue principal and interest, if
any, and such further amount as shall be sufficient to cover the costs and, to the extent lawful,
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.



     SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders of Notes allowed in any judicial proceedings relative to the Company,
its creditors or its property. Any receiver, trustee, liquidator, sequestrator (or other similar
official) in any such proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due
to the Trustee pursuant to Section 7.07. 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 Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.



     SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article
VI, it shall pay out the money in the following order:



     First: to the Trustee for amounts due under Section 7.07, including payment of all
compensation, expenses and liabilities incurred, and all advances made, by the Trustee, and the
costs and expenses of collection;



     Second: to holders of Senior Debt to the extent required by Article XI;



     Third: if the Holders proceed against the Company directly without the Trustee in accordance
with this Indenture, to Holders for their collection costs;



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



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



     The Trustee may fix a special record date and payment date for any payment to Holders of Notes
made pursuant to this Section 6.10. At least 15 days before any such special record



36









 







date, the Trustee shall mail to Holders of the Notes a notice that states the special record
date, payment date and amount of such interest to be paid.



     SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party litigant in the
suit, other than the Trustee, of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys fees, against any party
litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.



ARTICLE VII




THE TRUSTEE




     The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and
agrees to perform the same, as herein expressed. Whether or not herein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Article VII.



     SECTION 7.01. Duties of the Trustee.



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



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




   (1) The duties of the Trustee shall be determined solely by the express provisions
of this Indenture and the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and




   (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the form required by this
Indenture.



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




   (1) This paragraph does not limit the effect of paragraph (b) of this Section;



37









 






   (2) The Trustee shall not be liable for any error of judgment made in good faith by
a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




   (3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section
6.05.



     (d) Whether or not therein expressly so provided, every provision of this Indenture that is in
any way related to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01 and
to the provisions of the TIA.



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



     (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.



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



     (a) The Trustee may rely on and shall be protected in acting or refraining from acting upon
any resolution, Officer’s Certificate, or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, security or other document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not investigate any
fact or matter contained therein.



     (b) Any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof is
herein specifically prescribed). In addition, before the Trustee acts or refrains from acting, it
may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such Officer’s
Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.



     (c) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its attorneys and agents and other Persons not regularly
in its employ and shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.



     (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
without negligence or willful misconduct which it believes to be authorized or within its
discretion, rights or powers.




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     (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by Officers of the Company.



     (f) The Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.



     (g) 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 discretion of any of the Holders of Notes pursuant to
the provisions of this Indenture, unless such Holders have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred
therein or thereby.



     (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, consent,
order, security or other document unless requested in writing to do so by the Holders of either not
less than a majority in aggregate principal amount of the Notes then outstanding, provided
that if the Trustee determines in its discretion to make any such investigation, then it shall be
entitled, upon reasonable prior notice and during normal business hours, to examine the books and
records and the premises of the Company, personally or by agent or attorney, and the reasonable
expenses of every such examination shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be reimbursed by the Company upon demand.



     (i) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty and the Trustee shall not be answerable for other than its negligence or
willful misconduct



     (j) The Trustee shall not be responsible for the computation of any adjustment to the
Conversion Rate or for any determination as to whether an adjustment is required and shall not be
deemed to have knowledge of any adjustment unless and until it shall have received the notice from
the Company contemplated by Section 12.05(k).



     SECTION 7.03. Individual Rights of the Trustee. Subject to Sections 7.10 and 7.11,
the Trustee in its individual or any other capacity may become the owner or pledgee of Notes with
the same rights it would have if it were not the Trustee and may otherwise deal with the Company or
an Affiliate of the Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.



     SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Notes. It shall
not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture. It shall not be
responsible for the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or any statement in
the Notes or any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.



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     SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each Holder a notice of the
Default or Event of Default within 60 days after it occurs. A Default or an Event of Default shall
not be considered known to the Trustee unless it is a Default or Event of Default in the payment of
principal or interest when due under Section 6.01(a), (b) or (e) or the Trustee shall have received
notice thereof, in accordance with this Indenture, from the Company or from the Holders of a
majority in principal amount of the outstanding Notes. Except in the case of a Default or Event of
Default in payment of principal of, or interest, if any, on any Note, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders of the Notes.



     SECTION 7.06. Reports by the Trustee to Holders. Within 60 days after the reporting
date stated in Section 10.10, the Trustee shall mail to Holders of Notes a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within twelve months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).



     A copy of each report at the time of its mailing to Holders of Notes shall be filed, at the
expense of the Company, by the Trustee with the Commission and each stock exchange or securities
market, if any, on which the Notes are listed. The Company shall timely notify the Trustee when
the Notes are listed or quoted on any stock exchange or securities market.



     SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from
time to time and the Trustee shall be entitled to reasonable compensation for its acceptance of
this Indenture and its services hereunder. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred or made by
or on behalf of it in addition to the compensation for its services. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee’s agents, counsel and other
persons not regularly in its employ.



     The Company shall indemnify the Trustee against any loss, liability or expense incurred by it
arising out of or in connection with the acceptance or administration of its duties under this
Indenture and the trusts hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except as set forth in the next paragraph.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim with counsel designated by the Company, who may be
outside counsel to the Company but shall in all events be reasonably satisfactory to the Trustee,
and the Trustee shall cooperate in the defense. In addition, the Trustee may retain one separate
counsel and, if deemed advisable by such counsel, local counsel, and the Company shall pay the
reasonable fees and expenses of such separate counsel and local counsel. The indemnification
herein extends to any settlement, provided that the Company will not be liable for any settlement
made without its consent, provided, further, that such consent will not be unreasonably withheld.



40









 





     The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee through its own negligence or willful misconduct.



     The Trustee shall have a lien prior to the Notes on all money or property held or collected by
the Trustee to secure the Company’s payment obligations in this Section 7.07, except that held in
trust to pay principal and interest, if any, on Notes. Such liens and the Company’s obligations
under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(i) or (j) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.



     SECTION 7.08. Replacement of the Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.



     The Trustee may resign at any time and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee. The Company may remove the Trustee if:




     (i) the Trustee fails to comply with Section 7.10;




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




     (iii) a Custodian or public officer takes charge of the Trustee or its property; or




     (iv) the Trustee 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 a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.



     If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount
of the then outstanding Notes may petition any court of competent jurisdiction for the appointment
of a successor Trustee.



     If the Trustee after written request by any Holder who has been a Holder for at least six
months fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall



41









 







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
Holders of Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, provided that all sums owing to the retiring Trustee hereunder have been
paid and subject to the lien provided for in Section 7.07. Notwithstanding the replacement of the
Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it
prior to such replacement.



     Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the preceding paragraph.



     SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business
(including the trust created by this Indenture) to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national banking association
without any further act shall be the successor Trustee with the same effect as if the successor
Trustee had been named as the Trustee herein.



     SECTION 7.10. Eligibility, Disqualification. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310 (a)(1) and (5). The Trustee shall always
have a combined capital and surplus as stated in Section 10.10. The Trustee is subject to TIA
Section 310(b) regarding the disqualification of a trustee upon acquiring a conflicting interest;
provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture
or indentures under which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion set forth in TIA
§ 310(b)(1) are met.



     SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee shall
comply with TIA Section 311(a), excluding any creditor relationship set forth 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 VIII




SATISFACTION AND DISCHARGE OF INDENTURE




     SECTION 8.01. Discharge of Indenture. When (a) the Company delivers to the Trustee
for cancellation all Notes theretofore authenticated (other than any other Notes which have been
destroyed, lost or stolen and in lieu of or in substitution for which other Notes have been
authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation have become due and payable or by their terms
will become due and payable within one year, and the Company deposits with the Trustee, in trust,
amounts in U.S. legal tender or U.S. Government Obligations sufficient to pay at maturity of all of
the Notes (other than any Notes which have been mutilated, destroyed, lost or stolen and in lieu of
or in substitution for which other Notes have been authenticated and



42









 







delivered) not theretofore canceled or delivered to the Trustee for cancellation, including
principal and and interest, if any, due or to become due to such date of maturity, and if the
Company also pays, or causes to be paid, all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer,
substitution, replacement and exchange and conversion of Notes, (ii) rights hereunder of Holders of
Notes to receive payments of principal of and interest, if any, on the Notes, (iii) the obligations
under Sections 2.03 and 8.05 hereof and (iv) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company accompanied by an Officer’s Certificate and
an Opinion of Counsel as required by Section 10.04 and at the Company’s cost and expense, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Notes.



     SECTION 8.02. Deposited Monies to be Held in Trust by Trustee. Subject to Section
8.04, all monies deposited with the Trustee pursuant to Section 8.01 shall be held in trust and
applied by it to the payment, notwithstanding the provisions of Article XI, either directly or
through the Paying Agent, to the Holders of the particular Notes for the payment of which such
monies have been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any.



     SECTION 8.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge
of this Indenture, all monies then held by any Paying Agent (other than the Trustee) shall, upon
the Company’s demand, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall
be released from all further liability with respect to such monies.



     SECTION 8.04. Return of Unclaimed Monies. Subject to the requirements of applicable
law, any monies deposited with or paid to the Trustee for payment of the principal of, or interest,
if any, on Notes and not applied but remaining unclaimed by the Holders thereof for two years after
the date upon which the principal of, or interest on such Notes, as the case may be, have become
due and payable, shall be repaid to the Company by the Trustee on demand; provided, however, that
the Company, or the Trustee at the request of the Company, shall have first caused notice of such
payment to the Company to be mailed to each Holder of a Note entitled thereto no less than 30 days
prior to such payment and all liability of the Trustee shall thereupon cease with respect to such
monies; and the Holder of any of such Notes shall thereafter look only to the Company for any
payment which such Holder may be entitled to collect unless an applicable abandoned property law
designates another Person.



     SECTION 8.05. Reinstatement. If the Trustee or the Paying Agent is unable to apply
any money in accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent
is permitted to apply all such money in accordance with Section 8.02; provided, however, that if
the Company makes any payment of interest on or principal of any Note following the reinstatement
of its obligations, the Company shall be subrogated to the rights of



43









 







the Holders thereof to receive such payment from the money held by the Trustee or Paying
Agent.



ARTICLE IX




AMENDMENTS




     SECTION 9.01. Without the Consent of Holders. The Company and the Trustee may amend
this Indenture or the Notes without notice to or the consent of any Holder to:



     (a) cure any ambiguity or correct or supplement any defective or inconsistent provision
contained in this Indenture or make any other changes in the provisions of this Indenture which the
Company and the Trustee may deem necessary or desirable, provided such amendment does not
materially and adversely affect the rights of the Holders;



     (b) provide for uncertificated Notes in addition to or in place of certificated Notes;



     (c) evidence the succession of another Person to the Company and provide for the assumption by
such successor of the covenants and obligations of the Company thereunder and in the Notes as
permitted by Section 5.01;



     (d) provide for conversion rights and/or repurchase rights of Holders in the event of
consolidation, merger or sale of all or substantially all of the assets of the Company as required
to comply with Sections 5.01 and/or 12.06;



     (e) increase the Conversion Rate;



     (f) make any changes that would provide any additional rights or benefits to Holders or that
does not adversely affect the legal rights under this Indenture of any such Holder; or



     (g) comply with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA.



     SECTION 9.02. With the Consent of Holders. Subject to Section 6.07, the Company and
the Trustee may amend this Indenture or the Notes with the written consent of the Holders of at
least a majority in principal amount of the then outstanding Notes held by persons other than an
Affiliated Entity (including consents obtained in connection with a tender offer or exchange offer
for Notes).



     Subject to the right of a 50% Affiliated Holder to accelerate the Notes as described under
Section 6.02 and also to Sections 6.04 and 6.07, the Holders of a majority in principal amount of
the then-outstanding Notes held by Persons other than an Affiliate or an Affiliated Entity
(including consents obtained in connection with a tender offer or exchange offer for Notes) may
waive compliance in a particular instance by the Company with any provision of this Indenture or
the Notes.



44









 





          However, without the consent of each Holder of a Note affected (including any Holder that is
an Affiliated Entity), an amendment or waiver under this Section may not, with respect to any Notes
held by a non-consenting Holder:




     (a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;



     (b) reduce the principal of, any Designated Event Payment in respect of (including any Make
Whole Premium payable), or change the fixed maturity of, any Note;



     (c) reduce the rate of, or change the time for payment of, interest on any Note, including
defaulted interest, if any;



     (d) waive a Default or Event of Default in the payment of principal of or interest on the
Notes (except a rescission of acceleration of the Notes as provided in Section 6.02);



     (e) make any Note payable in money other than as provided for herein and in the Notes;



     (f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or Events of Default or the rights of Holders of Notes to receive payments of principal of, or
interest or the Notes;



     (g) except as permitted herein (including Section 9.01(a)), reduce the Conversion Rate or
modify the provisions contained herein relating to conversion of the Notes in a manner adverse to
the Holders thereof; or



     (h) make any change to the abilities of Holders of Notes to enforce their rights hereunder or
the provisions of clauses (a) through (h) of this Section 9.02.



     In order to amend any provisions of Article XI, if such amendment would adversely affect the
rights of Holders, (i) at least 75% in aggregate principal amount of the Notes then outstanding and
(ii) at least 75% in aggregate principal amount of the Notes then outstanding (other than those
held by an Affiliated Entity) must consent to such amendment.



     To secure a consent of the Holders of Notes under this Section, it shall not be necessary for
such Holders to approve the particular form of any proposed amendment or waiver, but it shall be
sufficient if such consent approves the substance thereof.



     After an amendment or waiver under this Article IX becomes effective, the Company shall mail
to Holders of Notes a notice briefly describing the amendment or waiver. The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the validity of an
amendment, supplement or waiver under this Article IX.



     SECTION 9.03. Compliance with the Trust Indenture Act. Every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.



45









 





     SECTION 9.04. Revocation and Effect of Consents. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note,
even if notation of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to his or her Note or portion of a Note if the Trustee receives
the notice of revocation before the date on which the Trustee receives an Officer’s Certificate
certifying that the Holders of the requisite principal amount of Notes have consented to the
amendment or waiver.



     The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders of Notes entitled to consent to any amendment or waiver. If a record date
is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons
who were Holders of Notes at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date unless consents
from Holders of the principal amount of Notes required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.



     After an amendment or waiver becomes effective it shall bind every Holder, unless it is of the
type described in clauses (a) through (h) of Section 9.02. In such cases, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder’s Note.



     SECTION 9.05. Notation on or Exchange of Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article IX may, and shall if
required by the Trustee, bear a notation in the form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Company and the Trustee, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Notes without charge to the Holders of the Notes, except as
specified in Section 2.07.



     SECTION 9.06. Trustee Protected. The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article IX if such amendment or supplemental indenture does
not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing such amendment or supplemental indenture, the
Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officer’s
Certificate and an Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and
that it will be valid and binding upon the Company in accordance with its terms.



ARTICLE X




GENERAL PROVISIONS




46









 





     SECTION 10.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA Section 318(c), such duties imposed
by 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 10.02. Notices. Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by first-class mail, with
postage prepaid (registered or certified, return receipt requested), or sent by facsimile or
overnight air couriers guaranteeing next day delivery, to the other’s address as stated in Section
10.10. The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders of Notes) shall be deemed to
have been duly given at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when transmission is confirmed, if
transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent
by overnight air courier guaranteeing next day delivery. Notwithstanding the foregoing, all
notices to the Trustee shall be effective only upon receipt by a Trust Officer.



     Any notice or communication to a Holder shall be mailed by first-class mail, with postage
prepaid, to his or her address shown on the Register kept by the Registrar. Failure to mail a
notice or communication to a Holder or any defect in it shall not affect its sufficiency with
respect to other Holders.



     If a notice or communication is sent in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it.



     If the Company sends a notice or communication to Holders of Notes, it shall send a copy to
the Trustee and each Agent at the same time.



     All notices or communications shall be in writing.



     SECTION 10.03. Communication by Holders With Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).



     SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:




     (1) an Officer’s Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 10.05) stating that, in
the opinion of such person, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been complied with; and



47









 






     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 10.05) stating that, in
the opinion of such counsel, all such conditions precedent and covenants have been
complied with.



     SECTION 10.05. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) shall include:




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




     (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;




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




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



     Any Officer’s Certificate may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, unless such Officer knows that the opinion with respect to the matters upon
which his or her certificate may be based as aforesaid is erroneous. Any Opinion of Counsel may be
based, insofar as it relates to factual matters, upon certificates, statements or opinions of, or
representations by, an Officer or Officers of the Company, or other Persons or firms deemed
appropriate by such counsel, unless such counsel knows that the certificates, statements or
opinions or representations with respect to the matters upon which his or her opinion may be based
as aforesaid are erroneous.



     Any Officer’s Certificate, statement or Opinion of Counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or representation by an accountant (who may
be an employee of the Company), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as aforesaid is
erroneous.



     SECTION 10.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by, or a meeting of, Holders of Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.



     SECTION 10.07. Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or a day on
which banking institutions in the City of New York, New York are permitted or required by any
applicable law to be closed, and a “Business Day” is any day that is not a Legal Holiday. If a
payment date is a Legal Holiday at a place of payment, payment may be made at that place on



48









 







the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If any date specified in this Indenture, is a Legal Holiday, then such date
shall be the next succeeding Business Day.



     SECTION 10.08. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Company from time to time shall have any liability for any obligations
of the Company under the Notes or this Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder by accepting a Note waives and releases
all such liability. This waiver and release are part of the consideration for the Notes. Each of
such directors, officers, employees and stockholders is a third party beneficiary of this Section
10.08.



     SECTION 10.09. Counterparts. This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.



     SECTION 10.10. Other Provisions. The Company initially appoints the Trustee as Paying
Agent, Registrar and authenticating agent.



     The reporting date for Section 7.06 is April 15 of each year; provided, the first
reporting date is April 15, 2010.



     The Trustee shall always have, or shall be a Subsidiary of a bank or bank holding company
which has, a combined capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition.



     The Company’s address is:


Amkor Technology, Inc.

1900 South Price Road

Chandler, AZ 85286

Attention: Chief Financial Officer

Facsimile: (480) 821-6674

Telephone: (480) 821-5000




     The Trustee’s address is:


U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110

Attention: Corporate Trust Services (Amkor Technology, Inc.

               6.00% Convertible Senior Subordinated Notes due 2014)

Facsimile: (617) 603-6665

Telephone: (617) 603-6562




     SECTION 10.11. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE AND



49









 







THE NOTES BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.



     SECTION 10.12. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of
the Company. Any such other indenture, loan or debt agreement may not be used to interpret this
Indenture.



     SECTION 10.13. Successors. All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its
successors.



     SECTION 10.14. Severability. In case any provision in this Indenture or in the Notes
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 10.15. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof and shall in no
way modify or restrict any of the terms or provisions hereof.



     SECTION 10.16. Submission to Jurisdiction. The Company (i) agrees that any suit,
action or proceeding against it arising out of or relating to this Indenture or the Notes, as the
case may be, may be instituted in any federal or state court sitting in The City of New York; (ii)
waives to the fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding, and any claim that
any suit, action or proceeding in such a court has been brought in an inconvenient forum; and (iii)
submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding.



ARTICLE XI




SUBORDINATION




     SECTION 11.01. Agreement to Subordinate. The Company agrees, and each Holder by
accepting a Note agrees, that the indebtedness evidenced by the Note is subordinated in right of
payment, to the extent and in the manner provided in this Article XI, to the prior payment in full
in cash or other payment satisfactory to holders of Senior Debt of all Senior Debt (whether
outstanding on the Issue Date or thereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt. The Company agrees, and each
Holder by accepting a Note agrees, that the indebtedness evidenced by the Note is equal in right of
payment to the Existing Pari Passu Indebtedness. The Notes shall be “Designated Senior Debt” for
purposes of the indentures governing the Company’s Convertible Subordinated Notes.



     SECTION 11.02. Liquidation; Dissolution; Bankruptcy. Upon any distribution to
creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the Company or its



50









 







property, in an assignment for the benefit of creditors or any marshaling of the Company’s
assets and liabilities:




     (1) holders of Senior Debt shall be entitled to receive payment in full of all
Obligations in respect of such Senior Debt (including interest, expense reimbursements
and indemnities after the commencement of any such proceeding at the rate specified in
the applicable Senior Debt, whether or not such claims are allowed, allowable or
enforceable in such proceeding and even if disallowed therein) in cash or other payment
satisfactory to the holders of the Senior Debt before the Holders of the Notes shall be
entitled to receive any payment or distribution with respect to the Notes (except that
Holders of the Notes may receive and retain (A) Permitted Junior Securities and (B)
payments and other distributions made from any trust created pursuant to Section 8.02
hereof); and




     (2) until all Obligations with respect to Senior Debt (as provided in clause (1)
above) are paid in full in cash or other payment satisfactory to the holders of the
Senior Debt, any distribution to which Holders of Notes would be entitled but for this
Article XI shall be made to holders of Senior Debt (except that Holders of the Notes may
receive and retain (A) Permitted Junior Securities and (B) payments and other
distributions made from any trust created pursuant to Section 8.02 hereof), as their
interests may appear.



     SECTION 11.03. Default on Designated Senior Debt. The Company may not make any
payment or distribution to the Trustee or any Holder in respect of Obligations with respect to the
Notes and may not acquire any Notes from the Trustee or any Holder for cash or property (other than
(A) Permitted Junior Securities and (B) payments and other distributions made from any trust
created pursuant to Section 8.02 hereof) until all principal and other Obligations with respect to
the Senior Debt have been paid in full in cash or other payment satisfactory to the holders of the
Senior Debt if:




     (i) a default in the payment of any principal or other Obligations in respect of Senior
Debt occurs and is continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Senior Debt; or




     (ii) a default, other than a default specified in (i) above, on Designated Senior Debt
occurs and is continuing that then permits holders of such Designated Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default (a “Payment
Blockage Notice”) from a Person who may give it pursuant to Section 11.11 hereof.



     If the Trustee receives any Payment Blockage Notice pursuant to Section 11.03(ii) hereof, no
subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until
(A) at least 360 days shall have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice and (B) all scheduled payments of principal and interest on the Notes that have
come due have been paid in full in cash. No nonpayment default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis
for a subsequent Payment Blockage Notice unless such default shall have been cured or waived for a
period of not less than 180 days.



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     The Company may and shall resume payments on and distributions in respect of the Notes and may
acquire them upon the earlier of:




     (1) in the case of a payment default, upon the date on which the default is cured
or waived, and




     (2) in the case of a nonpayment default referred to in Section 11.03(ii) hereof,
the earlier of the date on which such nonpayment default is cured or waived, or 179 days
after the applicable Payment Blockage Notice is received, unless the maturity of any
Designated Senior Debt has been accelerated,


if this Article XI otherwise permits the payment, distribution or acquisition at the time of such
payment, distribution or acquisition.




     SECTION 11.04. Acceleration of Notes. If payment of the Notes is accelerated because
of an Event of Default, the Company shall promptly notify holders of Senior Debt (or their
Representative) of the acceleration.



     SECTION 11.05. When Distribution Must Be Paid Over. In the event that the Trustee,
any Holder or any other Person receives any payment or distribution of the Company’s assets of any
kind in contravention of any of the terms of the Indenture or the Notes, whether in cash, property
or securities (including, without limitation, by way of set-off or otherwise) with respect to any
Obligations under the Notes before all Senior Debt is paid in full in cash (or other payment
satisfactory to the holders of the Senior Debt) at a time when (i) such payment is prohibited by
the provisions of this Article XI, or (ii) the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by the provisions of this Article XI, then the recipient
of such payment shall hold it in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which Senior Debt may
have been issued, as their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Debt.



     With respect to the holders of Senior Debt, the Trustee undertakes to perform only such
obligations on the part of the Trustee as are specifically set forth in this Article XI, and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the Trustee shall pay over
or distribute to or on behalf of Holders of Notes or the Company or any other Person money or
assets to which any holders of Senior Debt shall be entitled by virtue of this Article XI, except
if such payment is made as a result of the willful misconduct or gross negligence of the Trustee.



     SECTION 11.06. Notice by Company. The Company shall promptly notify the Trustee and
the Paying Agent of any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes or the purchase of any Notes by the Company to



52









 







violate this Article XI, but failure to give such notice shall not affect the subordination of
the Notes to the Senior Debt as provided in this Article XI.



     SECTION 11.07. Subrogation. After all Senior Debt is paid in full and until the Notes
are paid in full, Holders of Notes shall be subrogated (equally and ratably with all other
indebtedness pari passu with the Notes) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions otherwise payable to the
Holders of Notes have been applied to the payment of Senior Debt. A distribution made under this
Article XI to holders of Senior Debt that otherwise would have been made to Holders of Notes is
not, as between the Company and Holders of Notes, a payment by the Company on the Notes.



     SECTION 11.08. Relative Rights. This Article XI defines the relative rights of
Holders of Notes and holders of Senior Debt. Nothing in this Indenture shall:




     (1) impair, as between the Company and Holders, the obligation of the Company,
which is absolute and unconditional, to pay its Obligations in respect of this Indenture
and the Notes in accordance with their terms;




     (2) affect the relative rights of Holders and creditors of the Company, other than
their rights in relation to holders of Senior Debt; or




     (3) prevent the Trustee or any Holder from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders and owners of Senior Debt
to receive distributions and payments otherwise payable to Holders.



     If the Company fails because of this Article XI to pay principal of or interest on a Note on
the due date, the failure is still a Default or Event of Default.



     SECTION 11.09. Subordination May Not Be Impaired by Company. No right of any holder
of Senior Debt to enforce the subordination of the indebtedness evidenced by the Notes shall be
impaired by any act or failure to act by the Company or any Holder or by the failure of the Company
or any such holder to comply with this Indenture.



     SECTION 11.10. Distribution or Notice to Representative. Whenever a distribution is
to be made or a notice given to holders of Senior Debt, the distribution may be made and the notice
given to their Representative.



     Upon any payment or distribution of assets of the Company referred to in this Article XI, the
Trustee and the Holders of Notes shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XI.



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     SECTION 11.11. Rights of Trustee and Paying Agent. Notwithstanding the provisions of
this Article XI or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue to make payments on
the Notes, unless the Trustee shall have received at least two Business Days prior to the date of
such payment or distribution written notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this Article XI. Only the Company or a
Representative may give the notice.



     Nothing in this Article XI shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.



     The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.



     SECTION 11.12. Authorization to Effect Subordination. Each Holder by the Holder’s
acceptance thereof authorizes and directs the Trustee on the Holder’s behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in this Article XI, and
appoints the Trustee to act as the Holder’s attorney-in-fact for any and all such purposes. If the
Trustee does not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the expiration of the time to
file such claim, the holders of any Senior Debt or their Representatives are hereby authorized to
file an appropriate claim for and on behalf of the Holders of the Notes.



     SECTION 11.13. Amendments. The provisions of this Article XI shall not be amended or
modified without the written consent of the holders of all Senior Debt.



     SECTION 11.14. Senior Debt Entitled to Rely. The holders of Senior Debt shall have
the right to rely upon this Article XI, and no amendment or modification of the provisions
contained herein shall diminish the rights of such holders unless such holders shall have agreed in
writing thereto.



ARTICLE XII




CONVERSION




     SECTION 12.01. Right to Convert. Subject to and upon compliance with the provisions
of this Indenture, each Holder shall have the right, at such Holder’s option, at any time on or
before the close of business on the last Trading Day prior to the Maturity Date (except that, with
respect to any Note or portion thereof subject to a duly completed election for repurchase, such
right shall terminate on the close of business on the Designated Event Offer Termination Date
(unless the Company defaults in the payment due upon repurchase)) to convert the principal amount
of any Note held by such Holder, or any portion of such principal amount which is $1,000 or an
integral multiple thereof, into that number of fully paid and non-assessable shares of Common Stock
(as such shares shall then be constituted) based on the Conversion Rate in effect at such time, by
surrender of the Note to be so converted in whole or in part in the manner provided in Section
12.02. A Holder is not entitled to any rights of a holder of Common



54









 







Stock until such Holder has converted his or her Notes to Common Stock, and only to the extent
such Notes are deemed to have been converted to Common Stock under this Article XII.



     SECTION 12.02. Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends. To exercise, in whole or in part, the conversion
privilege with respect to any Note, the Holder of such Note shall surrender such Note, duly
endorsed, at an office or agency maintained by the Company pursuant to Section 4.04, accompanied by
the funds, if any, required by the fourth paragraph of this Section 12.02, and shall give a duly
signed written notice of conversion, in the form provided on the Notes or available from the
Conversion Agent (or such other notice which is acceptable to the Company) to the office or agency,
that the Holder elects to convert such Note or such portion thereof specified in said notice. Such
notice shall also state the name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock which are issuable on such conversion shall be issued, and
shall be accompanied by transfer taxes, if required pursuant to Section 12.07. Each such Note
surrendered for conversion shall, unless the shares issuable on conversion are to be issued in the
same name as the registration of such Note, be duly endorsed by, or be accompanied by instruments
of transfer in form satisfactory to the Company duly executed by, the Holder or his or her duly
authorized attorney.



     As promptly as practicable after satisfaction of the requirements for conversion set forth
above, but no later than the third Business Day thereafter, the Company shall issue and shall
deliver to such Holder at the office or agency maintained by the Company for such purpose pursuant
to Section 4.04, a certificate or certificates for, or effect a book-entry transfer through the
Depositary with respect to, the number of full shares of Common Stock issuable upon the conversion
of such Note or portion thereof in accordance with the provisions of this Article XII and a check
or cash in respect of any fractional interest in respect of a share of Common Stock arising upon
such conversion (unless the Company elects to round up the number of share of Common Stock
deliverable upon conversion pursuant to Section 12.03), as provided in Section 12.03 (which
payment, if any, shall be paid no later than three Business Days after satisfaction of the
requirements for conversion set forth above). Notwithstanding the preceding sentenced, if any
calculation required in order to determine the number of shares of Common Stock the Company must
deliver in respect of a given conversion of Notes is based on data or other information that will
not be available to the Company on the date the requirements set forth in the first paragraph of
this Section 12.02 have been satisfied, the Company will delay settlement of that conversion until
no later than the third Business Day after the relevant data or information becomes available.
Certificates representing shares of Common Stock will not be issued or delivered unless all taxes
and duties, if any, payable by the Holder have been paid or the Holder shall have established to
the reasonable satisfaction of the Company that such taxes and duties have been paid. In case any
Note of a denomination of an integral multiple greater than $1,000 is surrendered for partial
conversion, and subject to Section 2.02, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of the Note so surrendered, without charge to him or her, a
new Note or Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note.



     Each conversion shall be deemed to have been effected with respect to a Note (or portion
thereof) on the date on which the requirements set forth above in the first paragraph of this
Section 12.02 have been satisfied with respect to such Note (or portion thereof), and the Person



55









 







in whose name any certificate or certificates for shares of Common Stock are issuable upon
such conversion shall be deemed to have become on said date the holder of record of the shares
represented thereby; provided, however, that any Holder who has satisfied the requirements for
conversion set forth above but does not receive certificates representing shares of Common Stock
(or such shares in electronic book-entry form, as applicable) within five days after satisfying
such requirements (or five days after such longer period of time as the Company may be allowed to
deliver the shares pursuant to the terms of the preceding paragraph) may notify the Conversion
Agent in writing of such failed conversion and such Holder will be reinstated as a Holder for all
purposes under this Indenture until such shares are delivered. Any such surrender on any date when
the Company’s stock transfer books are closed shall constitute the Person in whose name the
certificates are to be issued as the record holder thereof for all purposes on the next succeeding
day on which such stock transfer books are open, but such conversion shall be at the Conversion
Rate in effect on the date upon which such Note is surrendered.



     Any Note or portion thereof surrendered for conversion during the period from the close of
business on the Regular Record Date for any interest payment through the close of business on the
last Trading Day immediately preceding such Interest Payment Date shall be accompanied by payment,
in funds acceptable to the Company, of an amount equal to the interest, otherwise payable on such
Interest Payment Date on the principal amount being converted; provided however, that no such
payment need be made if there exists at the time of conversion a default in the payment of interest
on the Notes; and provided, further, that no such payment need be made if the Notes are surrendered
for conversion on or after the final Regular Record Date. An amount equal to such payment shall be
paid by the Company on such Interest Payment Date to the Holder at the close of business on such
Regular Record Date; provided, however, that if the Company defaults in the payment of interest, if
applicable, on such Interest Payment Date, such amount shall be paid to the Person who made such
required payment. Except as provided above in this Section 12.02, no cash payment of interest
shall be made and no adjustment shall be made for interest accrued, if any, on any Note converted
or for dividends on any shares issued upon the conversion of such Note as provided in this Article
XII.



     With respect to any Notes bearing a Restricted Securities Legend or Affiliate Security Legend
on the date of conversion, the shares of Common Stock distributed upon conversion will be issued in
physical certificated form, will not be held in book-entry form through the facilities of the
Depositary and shall be treated as “restricted securities,” and the Company will affix the
applicable Restricted Stock Legend that is set forth in Exhibit D upon such shares of Common Stock.



     By delivering the amount of cash and/or the number of shares of Common Stock issuable on
conversion to the Trustee, the Company will be deemed to have satisfied its obligation to pay the
principal amount of the Notes so converted and its obligation to pay accrued and unpaid interest
attributable to the period from the most recent Interest Payment Date through the date of
conversion (which amount will be deemed paid in full rather than cancelled, extinguished or
forfeited).



     SECTION 12.03. Cash Payments in Lieu of Fractional Shares. No fractional shares of
Common Stock or scrip representing fractional shares shall be issued upon conversion of Notes. If
more than one Note shall be surrendered for conversion at one time by the same Holder, the



56









 







number of full shares which shall be issuable upon conversion shall be computed on the basis
of the aggregate principal amount of the Notes (or specified portions thereof to the extent
permitted hereby) so surrendered for conversion. If any fractional share of stock otherwise would
be issuable upon the conversion of any Note or Notes, the Company may elect to make an adjustment
therefore in cash based upon the Current Market Price (as defined in Section 12.05(g)) of the
Common Stock on the last Trading Day prior to the date of conversion, or in lieu of making such
cash payment, the Company may elect to round up to the next whole share the number of shares of
Common Stock to be issued to any Holder upon conversion.



     SECTION 12.04. Conversion Rate. The Conversion Rate shall be as specified in the form
of Note attached as Exhibit A hereto, subject to adjustment as provided in this Article XII.



     SECTION 12.05. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company as follows:



     (a) If the Company shall hereafter issue shares of its Common Stock as a dividend or
distribution to all or substantially all holders of its outstanding shares of Common Stock, the
Conversion Rate in effect immediately after the Record Date for such dividend or distribution shall
be increased by multiplying the Conversion Rate in effect at the close of business on such Record
Date by a fraction, (i) the numerator of which shall be the total number of shares of Common Stock
that will be outstanding immediately after such dividend or other distribution, and (ii) the
denominator of which shall be the number of shares of Common Stock outstanding at the close of
business on the Record Date fixed for such dividend or distribution. Such adjustment shall become
effective immediately after the opening of business on the day following the Record Date for such
dividend or other distribution. If any dividend or distribution of the type described in this
Section 12.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or distribution had not been
declared.



     (b) If the outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and, conversely, if the outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be proportionately reduced.
Any 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 or combination becomes
effective.



     (c) If the Company shall issue rights, options or warrants to all or substantially all holders
of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of
Common Stock (or securities convertible into shares of Common Stock) for a period expiring 45 days
or less from the date of issuance of such rights, options or warrants at a price per share (or
having a conversion price per share) less than the Current Market Price on the Record Date fixed
for the determination of stockholders entitled to receive such rights, options or warrants, the
Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect at the close of business on such Record Date by a



57









 







fraction (i) the numerator of which shall be the sum of (x) the number of shares of Common
Stock outstanding at the close of business on such Record Date plus (y) the total number of
additional shares of Common Stock issuable pursuant to such rights, options or warrants (or into
which the convertible securities so offered are convertible), and (ii) the denominator of which
shall be the sum of (x) the number of shares of Common Stock outstanding at the close of business
on such Record Date plus (y) the number of shares of Common Stock equal to the quotient of (A) the
aggregate price payable to exercise such rights, options or warrants (or the aggregate conversion
price of the convertible securities so offered for subscription or purchase, which shall be
determined by multiplying the number of shares of Common Stock issuable upon conversion of such
convertible securities by the conversion price per share of Common Stock pursuant to the terms of
such convertible securities) and (B) the Current Market Price as of the Business Day immediately
preceding the announcement of the issuance of such rights, options or warrants. Such adjustment
shall become effective immediately after the opening of business on the day following the Record
Date fixed for determination of stockholders entitled to receive the distribution of such rights,
options or warrants. To the extent that shares of Common Stock (or securities convertible into
shares of Common Stock) are not delivered pursuant to such rights, options or warrants, upon the
expiration or termination of such rights, options or warrants the Conversion Rate shall be
readjusted to be the Conversion Rate which would then be in effect had the adjustments made upon
the issuance of such rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or warrants are not
so issued, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in
effect if such Record Date fixed for the determination of stockholders entitled to receive such
rights, options or warrants had not been fixed. In determining whether any rights, options or
warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the
Current Market Price on the related Record Date, 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, options or warrants, with the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors.



     (d) If the Company shall, by dividend or otherwise, distribute to all or substantially all
holders of Common Stock shares of any class of Capital Stock of the Company (other than any
dividends or distributions to which Section 12.05(a) or 12.05(b) applies) or evidences of its
indebtedness, cash or other assets or property (including securities, but excluding any dividend,
distribution or issuance of a type referred to in Section 12.05(b), (c) or (e), or of Spin-off
Securities (as defined below)) (the foregoing hereinafter in this Section 12.05(d) called the
“Distributed Securities”), then (unless the Company distributes such Distributed Securities
for distribution to the Holders of Notes on such dividend or distribution date (in such amount as
if each Holder had converted such Note into Common Stock immediately prior to the Record Date with
respect to such distribution)), in each such case, the Conversion Rate shall be adjusted so that
the same shall be equal to the rate determined by multiplying the Conversion Rate in effect at the
close of business on the Record Date with respect to such distribution by a fraction (i) the
numerator of which shall be the Current Market Price on such Record Date, and (ii) the denominator
of which shall be (x) the Current Market Price on such Record Date minus (y) the fair market value
(as determined in good faith by the Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors) on such Record Date



58









 







of the portion of the Distributed Securities applicable to one share of Common Stock
(determined on the basis of the number of shares of Common Stock outstanding at the close of
business on such Record Date). Such adjustment shall become effective immediately prior to the
opening of business on the day following the Record Date for such distribution; provided, however,
that in the event the then fair market value (as so determined) of the portion of the Distributed
Securities applicable to one share of Common Stock is equal to or greater than the Current Market
Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon conversion of a Note (or any portion thereof)
the amount of Distributed Securities such Holder would have received had such Holder converted such
Note (or portion thereof) immediately prior to such Record Date. If such dividend or distribution
is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared. If the Board of
Directors determines the fair market value of any distribution for purposes of this Section
12.05(d) by reference to the actual or when issued trading market for any securities comprising all
or part of such distribution, in doing so the Board of Directors shall, to the extent possible,
consider the prices in such market over the same period used in computing the Current Market Price
pursuant to Section 12.05(g).



     Notwithstanding any other provision of this Section 12.05(d) to the contrary, rights, options,
warrants, evidences of indebtedness, other securities, cash or other assets (including, without
limitation, any rights distributed pursuant to any stockholder rights plan) shall be deemed not to
have been distributed for purposes of this Section 12.05(d) if the Company makes proper provision
so that each Holder who converts a Note (or any portion thereof) after the Record Date fixed for
determination of stockholders entitled to receive such distribution shall be entitled to receive
upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the
amount and kind of such distributions that such Holder would have been entitled to receive if such
Holder had, immediately prior to such determination date, converted such Note into shares of Common
Stock.



     Notwithstanding the foregoing, if the Company shall, by dividend or otherwise, distribute to
all or substantially all holders of Common Stock shares of any class of capital stock of, or
similar equity interests in, a Subsidiary or other business unit of the Company (the “Spin-off
Securities”), the Conversion Rate shall be adjusted, unless the Company makes an equivalent
distribution to Holders of the Notes, such that the same shall be equal to the rate determined by
multiplying the Conversion Rate in effect at the close of business on the Record Date fixed for the
determination of stockholders entitled to receive such distribution by a fraction (i) the numerator
of which shall be the sum of (x) the average of the Closing Sale Prices of the capital stock or
similar equity interest distributed to holders of our Common Stock applicable to one share of
Common Stock over the 10 consecutive Trading Days (the “Spinoff Valuation Period”)
commencing on and including the fifth Trading Day after the “ex” date with respect to such Spin-off
Securities, on the Nasdaq Global Select Market or such other national or regional exchange or
market on which the Spin-off Securities are listed or quoted (provided, that if shares of shares of
such capital stock or equity interests are not so listed or quoted, the fair market value as
determined in good faith by the Company’s Board of Directors) and (y) the average of the Closing
Sale Prices of one share of Common Stock over the Spinoff Valuation Period of the Spinoff
Securities , and (ii) the denominator of which shall be the average of the Closing Sale Prices of
one share of Common Stock over the Spinoff Valuation Period. Such adjustment shall



59









 







become effective immediately after the Record Date for such distribution, but the Company
shall not be required to calculate the adjustment to the conversion rate adjustment relating to any
Spinoff Securities until the third Business Day following the Spinoff Valuation Period; provided,
however, that the Company may in lieu of the foregoing adjustment elect to make adequate provision
so that each Holder shall have the right to receive upon conversion thereof the amount of such
Spinoff Securities that such Holder would have received if its Notes had been converted on the
Record Date with respect to such distribution.



     For purposes of this Section 12.05(d) and Sections 12.05(a) and (c), any dividend or
distribution to which this Section 12.05(d) is applicable that also includes shares of Common
Stock, or rights, options or warrants to subscribe for or purchase shares of Common Stock to which
Section 12.05(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of
the evidences of indebtedness, assets, shares of Capital Stock, rights, options or warrants other
than such shares of Common Stock or rights, options or warrants to which Section 12.05(c) applies
(and any Conversion Rate adjustments required by this Section 12.05(d) with respect to such
dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution
of such shares of Common Stock or such rights, options or warrants (and any further Conversion Rate
adjustments required by Sections 12.05(a) and (c) with respect to such dividend or distribution
shall then be made, except that (A) the Record Date of such dividend or distribution shall be
substituted as “the Record Date fixed for the determination of stockholders entitled to
receive such dividend or other distribution”, “Record Date fixed for such determination” and
“Record Date” within the meaning of Section 12.05(a) and as “the Record Date fixed for the
determination of stockholders entitled to receive such rights, options or warrants”, “the Record
Date fixed for the determination of the stockholders entitled to receive such rights, options or
warrants” and “such Record Date” within the meaning of Section 12.05(c) and (B) any shares of
Common Stock included in such dividend or distribution shall not be deemed “outstanding at the
close of business on the date fixed for such determination” within the meaning of Section 12.05(a).



     (e) If the Company shall make any dividend or other distribution (a “Triggering
Distribution”) consisting exclusively of cash to all or substantially all holders of shares of
its Common Stock (excluding any cash that is distributed upon a merger or consolidation to which
Section 12.06 applies or as part of a distribution referred to in Section 12.05(d)), the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately at the close of business on the Record Date for such
Triggering Distribution (a “Distribution Determination Date”) by a fraction (i) the
numerator of which shall be the Current Market Price per share of Common Stock on such Distribution
Determination Date, and (ii) the denominator of which shall be (x) the Current Market Price per
share of Common Stock on such Distribution Determination Date minus (y) the amount of such cash
dividend or distribution applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding at the close of business on the Distribution
Determination Date); provided, however, that if the portion of the cash so distributed applicable
to one share of Common Stock is equal to or greater than the Current Market Price of the Common
Stock on the Distribution Determination Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon conversion of a
Note (or any portion thereof) the amount of cash such Holder would have received had such Holder
converted such Note (or portion thereof) immediately prior



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to such Distribution Determination Date. Such adjustment shall become effective immediately
prior to the opening of business on the day following the Record Date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.



     (f) If the Company or one or more of its subsidiaries makes purchases of Common Stock pursuant
to a tender offer or exchange offer by the Company or one of its Subsidiaries, and such tender or
exchange offer (as amended upon the expiration thereof) requires the payment to stockholders (based
on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors) per share of Common Stock that exceeds the
Current Market Price per share of Common Stock as of the last date (the “Expiration Date”)
tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be
amended) (the last time at which such tenders could have been made on the Expiration Date is
hereinafter called the “Expiration Time”), then the Conversion Rate shall be adjusted so
that the Conversion Rate in effect immediately after the Expiration Date shall equal the price
determined by multiplying the Conversion Rate in effect immediately prior to close of business on
the Expiration Date by a fraction (i) the numerator of which shall be the sum of (x) the fair
market value of the aggregate consideration (the fair market value as determined by the Board of
Directors, whose determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officer’s Certificate delivered to the Trustee) paid or payable to
stockholders based on the acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of (A) the number of shares of Common Stock outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration
Time and (B) the Closing Sale Price per share of Common Stock on the Trading Day next succeeding
the Expiration Date, and (ii) the denominator of which shall be the product of (x) the number of
shares of Common Stock outstanding (including Purchased Shares but excluding any shares held in the
treasury of the Company) at the Expiration Time multiplied by (y) the Closing Sale Price per share
of the Common Stock on the Trading Day next succeeding the Expiration Date. Such adjustment (if
any) shall become effective immediately prior to the opening of business on the day following the
Expiration Date. If the Company is obligated to purchase shares pursuant to any such tender offer,
but the Company is permanently prevented by applicable law from effecting any such purchases or all
such purchases are rescinded or if the tender offer is terminated in accordance with its terms and
no Purchased Shares are purchased, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would then be in effect if such tender offer had not been made. If the application of
this Section 12.05(f) to any tender offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer under this 
Section 12.05(f).



     (g) For purposes of this Section 12.05, the following terms shall have the meaning indicated:



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     (1) “Closing Sale Price” with respect to the Common Stock on any day means
the closing sale price per share on such day (or, if no closing sale price is reported,
(a) the last reported sale price, or (b) if no last reported sale price is reported, the
average of the last reported bid price and ask prices or, if more than one in either
case, the average of the average last reported bid price and the average last reported
ask price) on such date as reported on the principal U.S. securities exchange on which
the Common Stock is traded or, if the Common Stock is not listed on a U.S. national or
regional securities exchange, as reported by Pink Sheets LLC. In the absence of such a
quotation, the Closing Sale Price will be an amount determined in good faith by the
Board of Directors to be the fair value of a share of the Common Stock (whose
determination shall be conclusive absent manifest error and described in a resolution of
the Board of Directors).




     (2) “Current Market Price” means the average of the daily Closing Sale
Prices of the Common Stock for the 10 consecutive Trading Days ending on the earlier of
the day in question and the day before the “ex” date (as hereinafter defined) with
respect to the issuance or distribution requiring such computation; provided however,
that (1) if the “ex” date for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the Conversion Rate pursuant
to Sections 12.05(a), (b), (c), (d), (e) or (f) occurs during such 10 consecutive
Trading Days, the Closing Sale Price for each Trading Day prior to the “ex” date for
such other event shall be adjusted by multiplying such Closing Sale Price by the same
fraction by which the Conversion Rate is so required to be adjusted as a result of such
other event, (2) if the “ex” date for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the Conversion Rate pursuant
to Section 12.05(a), (b), (c), (d), (e) or (f) occurs on or after the “ex” date for the
issuance or distribution requiring such computation and prior to the day in question,
the Closing Sale Price for each trading day on and after the “ex” date for such other
event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the
fraction by which the Conversion Rate is so required to be adjusted as a result of such
other event, and (3) if the “ex” date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into account any adjustment
required pursuant to clause (1) or (2) of this proviso, the Closing Sale Price for each
trading day on or after such “ex” date shall be adjusted by adding thereto the amount of
any cash and the fair market value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes of Sections 12.05(d) or
(f), whose determination shall be conclusive and described in a resolution of the Board
of Directors) of the evidences of indebtedness, shares of capital stock or assets being
distributed applicable to one share of Common Stock as of the close of business on the
day before such “ex” date. For purposes of any computation under Section 12.05(f), the
Current Market Price on any date shall be deemed to be the average of the daily Closing
Sale Prices per share of Common Stock for such day and the next two succeeding trading
days; provided, however, that if the “ex” date for any event (other than the tender
offer requiring such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 12.05(a), (b), (c), (d), (e) or (f) occurs on or after the
Expiration Time for the tender or exchange offer requiring such computation and prior to
the day in question, the Closing Sale



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Price for each trading day on and after the “ex” date for such other event shall be
adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by
which the Conversion Rate is so required to be adjusted as a result of such other event.
For purposes of this Agreement, the term “ex” date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades regular
way on the relevant exchange or in the relevant market from which the Closing Sale Price
was obtained without the right to receive such issuance or distribution, (2) when used
with respect to any subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades regular way on such exchange or in such
market after the time at which such subdivision or combination becomes effective, and
(3) when used with respect to any tender or exchange offer means the first date on which
the Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer. Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Rate are called for pursuant to this Section 12.05, such
adjustments shall be made to the Current Market Price as may be necessary or appropriate
to effectuate the intent of this Section 12.05 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.




     (3) “fair market value” shall mean the amount which a willing buyer would
pay a willing seller in an arm’s length transaction.




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




     (5) “Trading Day” shall mean (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange, the Nasdaq Global Select Market or
another national securities exchange, a day on which the New York Stock Exchange, the
Nasdaq Global Select Market or another national securities exchange is open for business
or (y) if the applicable security is not so listed, admitted for trading or 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.



     (h) The Company may, at its option, make such adjustments in the Conversion Rate, in addition
to those required by Sections 12.05(a), (b), (c), (d), (e) and (f), as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights
to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.



     The Company from time to time may, to the extent permitted by law and subject to the
applicable rules of the Nasdaq Global Select Market (or the national securities exchange on



63









 







which the Common Stock may be listed at the time), increase the Conversion Rate of the Notes
by any amount for any period of at least 20 days, if the Board of Directors has made a
determination that such increase would be in the Company’s best interests, which determination
shall be conclusive and described in a resolution of the Board of Directors. The increase in
Conversion Rate shall be irrevocable during this period. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to the Holders of Notes at his or her
last address appearing on the Register of Holders maintained for that purpose a notice of the
increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it will be in effect.



     (i) With respect to any rights, options or warrants (the “Rights”) that may be issued
or distributed pursuant to any rights plan that the Company implements after the date of this
Indenture (each a “Rights Plan”), in lieu of any adjustment required by any other provision
of this Section 12.05 upon conversion of the Notes into Common Stock, to the extent that such
Rights Plan is in effect upon such conversion, the Holders of Notes will receive, with respect to
the shares of Common Stock issued upon conversion, the Rights described therein (whether or not the
Rights have separated from the Common Stock at the time of conversion), subject to the limitations
set forth in and in accordance with any such Rights Plan; provided that if, at the time of
conversion, however, the Rights have separated from the shares of Common Stock in accordance with
the provisions of the Rights Plan so that Holders would not be entitled to receive any rights in
respect of the shares of Common Stock issuable upon conversion of the Notes as a result of the
timing of the Conversion Date, the Conversion Rate will be adjusted as if the Company distributed
to all holders of Common Stock Distributed Securities as provided Section 12.05(d), subject to
appropriate readjustment in the event of the expiration, termination, repurchase or redemption of
the Rights. Any distribution of rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this paragraph shall not constitute
a distribution of rights or warrants pursuant to this Section 12.05. Other than as specified in
this clause (i), there will not be any adjustment to the Conversion Rate as the result of the
issuance of any Rights, the distribution of separate certificates representing such Rights, the
exercise or redemption of such Rights in accordance with any Rights Plan or the termination or
invalidation of any Rights.



     (j) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate; provided, however, that any
adjustments which by reason of this Section 12.05(j) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations under this Article
XII shall be made by the Company and shall be made to the nearest cent or to the nearest one
thousandth of a share, as the case may be. Notwithstanding the foregoing, all adjustments not
previously made shall have effect and be made upon conversion of any of the Notes.



     No adjustment need be made for a change in the par value of the Common Stock.



     The Company shall not make any adjustment in the Conversion Rate (i) that would result in an
adjustment of the Conversion Rate to reflect a Conversion Price of less than the par value per
share of Common Stock or (ii) without complying, if applicable, with the shareholder



64









 







approval rules of any national securities exchange on which the Common stock is listed at the
relevant time.



     (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall
promptly file with the Trustee and any Conversion Agent other than the Trustee an Officer’s
Certificate setting forth the Conversion Rate after such adjustment, detailing the calculation of
the Conversion Rate and setting forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment
of the Conversion Rate describing in reasonable detail the adjusted Conversion Rate, the date on
which each adjustment becomes effective and the method by which the Conversion Rate was adjusted
and shall mail such notice of such adjustment of the Conversion Rate to each Holder at his or her
last address appearing on the Register of Holders maintained for that purpose within 10 Business
Days of the effective date of such adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.



     (l) In any case in which this Section 12.05 provides that an adjustment shall become
effective immediately after a Record Date for an event, the Company may defer until the
occurrence of such event issuing to the Holder of any Note converted after such Record Date and
before the occurrence of such event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment.



     (m) For purposes of this Section 12.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company shall not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.



     (n) The Company shall not take any action pursuant to Section 12.05 (i) that would result in
an adjustment to the Conversion Rate to reflect a Conversion Price of less than the par value per
share of the Common Stock or (ii) without complying, if applicable, with the shareholder approval
rules of the Nasdaq Stock Market (including Market Rule 4350, which requires stockholder approval
of certain issuances of stock) or any stock exchange on which the Company’s Common Stock is listed
at the relevant time.



     SECTION 12.06. Effect of Recapitalization, Reclassification, Consolidation, Merger,
Combination, Sale, Lease or Transfer.



     In the event of any (i) recapitalization, reclassification or change of the outstanding shares
of Common Stock (other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), (ii) consolidation, merger
or binding share exchange of the Company with another corporation, or (iii) sale, assignment,
conveyance, transfer, lease or other disposition to another person of the property and assets of
the Company and its Subsidiaries as an entirety or substantially as an entirety, in each case, as a
result of which holders of Common Stock shall be entitled to receive stock, other securities, other
property, assets or cash (or any combination thereof) with respect to or in exchange for such
Common Stock, the Company or the successor or purchasing corporation, as



65









 







the case may be, shall execute with the Trustee a supplemental indenture (which shall comply
with the TIA as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing that Holders of Notes shall
thereafter be entitled to convert Notes into the kind and amount of shares of stock and other
securities, property, assets or cash (or any combination thereof) that such Holders would have
owned or otherwise been entitled to receive upon such recapitalization, reclassification, change,
consolidation, merger, combination, sale, lease, assignment, conveyance or other transfer had such
Notes been converted into shares of Common Stock immediately prior to such recapitalization,
reclassification, change, consolidation, merger, combination, sale, lease, assignment, conveyance
or other transfer (subject to the right of such Holder to receive the Make Whole Premium upon
compliance with the provisions of such Section) (such property, the “Reference Property”).
In the event holders of Common Stock have the opportunity to elect the form of consideration to be
received in a recapitalization, reclassification, change, consolidation, merger, combination, sale,
lease, assignment, conveyance or other transfer, the Company will make adequate provision whereby
Holders of the Notes shall have the opportunity, on a timely basis, to determine the form of
Reference Property into which all of the Notes, treated as a single class, shall be convertible.
Such determination shall be based on the blended, weighted average of elections made by Holders of
the Notes who participate in such determination and shall be subject to any limitations to which
all of the holders of Common Stock are subject to, including as pro rata reductions applicable to
any portion of the consideration payable. Such determination will apply to all of the Notes and
the Company shall notify the Conversion Agent of the composition of such Reference Property
promptly after determination thereof. The Company shall not become party to any such
recapitalization, reclassification, change, consolidation, merger combination, sale, lease,
assignment, conveyance or other transfer unless the terms of such transaction are consistent with
the foregoing. Such supplemental indenture shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article XII.



     If, in the case of any such reclassification, change, consolidation, merger, combination,
sale, lease, assignment, conveyance or other transfer, the stock or other securities and assets
receivable thereupon by a holder of shares 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 recapitalization, reclassification, change, consolidation, merger,
combination, sale, lease, assignment, conveyance or other transfer, then such supplemental
indenture shall also be executed by such other corporation and shall contain such additional
provisions to protect the interests of the Holders of the Notes as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.



     The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Holder at his or her address appearing on the Register of Holders for that purpose 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 12.06 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales, leases, assignment,
conveyance or other transfers. If this Section 12.06 applies to any event or occurrence, Section
12.05 shall not apply.



66









 





     SECTION 12.07. Taxes on Shares Issued. The issue of stock certificates on conversions
of Notes shall be made without charge to the converting Holder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of stock in any name other than that of
the Holder of any Note converted, and the Company shall not be required to issue or deliver any
such stock certificate unless and until the Person or Persons requesting the issue thereof shall
have paid to the Company the amount of such tax or shall have established to the reasonable
satisfaction of the Company that such tax has been paid.



     SECTION 12.08. Reservation of Shares; Shares to Be Fully Paid; Listing of Common
Stock. The Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares to provide for the conversion of the
Notes from time to time as such Notes are presented for conversion.



     Before taking any action which would cause an adjustment increasing the Conversion Rate to a
level such that the Conversion Price would be below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Notes, the Company shall take all corporate action
which may, in the opinion of its counsel, be necessary in order that the Company may validly and
legally issue shares of such Common Stock at such adjusted Conversion Rate; provided, however, that
no shares of Common Stock shall be required to be issued at a Conversion Price less than the par
value of such Common Stock.



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



     The Company further covenants that as long as the Common Stock is quoted on the Nasdaq Global
Select Market, or its successor, the Company shall cause all Common Stock issuable upon conversion
of the Notes to be eligible for such quotation in accordance with, and at the times required under,
the requirements of such market, and if at any time the Common Stock becomes listed on the New York
Stock Exchange or any other national securities exchange, the Company shall cause all Common Stock
issuable upon conversion of the Notes to be so listed and kept listed.



     SECTION 12.09. Responsibility of Trustee. The Trustee and any other Conversion Agent
shall not at any time be under any duty of responsibility to any Holders to determine whether any
facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making the same. The
Trustee and any other Conversion Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any Note; and the Trustee makes
no representations with respect thereto. The Trustee and any other Conversion Agent shall not be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for
the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article XII. Without



67









 







limiting the generality of the foregoing, the Trustee and any other Conversion Agent shall not
have any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 12.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Holders upon the
conversion of its Notes after any event referred to in such Section 12.06 or to any adjustment to
be made with respect thereto, but, subject to the provisions of Section 7.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be protected in relying
upon, the Officer’s Certificate and Opinion of Counsel (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto. Neither the Trustee nor any Conversion Agent shall have any duties to holders of the
Company’s common stock obtained by such holder under this Article XII, or any duty to monitor
whether the Company issues (timely or otherwise) Common Stock to Holders under this Article XII.
In addition, without limiting the generality of the foregoing, the Trustee and any other Conversion
Agent shall not have any responsibility to determine whether or to ensure that any share of Common
Stock issued upon conversion of a Restricted Note or an Affiliate Note shall bear any legend
required by Sections 2.06(e) or 12.02 or the restricted or unrestricted CUSIP numbers contemplated
by Section 2.14, or compliance with any similar provision relating to the Common Stock, nor shall
the Trustee or any Conversion Agent be responsible for ensuring compliance with the restrictions
set forth in Section 12.11.



     SECTION 12.10. Notice to Holders Prior to Certain Actions. If



     (a) the Company declares a dividend (or any other distribution) on its Common Stock (other
than in cash out of retained earnings); or



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



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



     (d) there is any voluntary or involuntary dissolution, liquidation or winding-up of the
Company;


then the Company shall cause to be filed with the Trustee and to be mailed to each Holder at his or
her address appearing on the Register maintained for that purpose as promptly as possible but in
any event at least 15 days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend, distribution or rights,
options or warrants, or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange their Common


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Stock for securities or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.




     SECTION 12.11. Restriction on Common Stock Issuable Upon Conversion.



     (a) Shares of Common Stock to be issued upon conversion of Notes that bear either a Restricted
Securities Legend or an Affiliate Securities Legend at the time of such conversion shall be
physically delivered in certificated form to the Holders converting such Notes and the certificate
representing such shares of Common Stock shall bear the Restricted Stock Legend unless removed in
accordance with Section 12.11(c).



     (b) If (i) shares of Common Stock to be issued upon conversion of Notes that bear either a
Restricted Securities Legend at the time of such conversion are to be registered in a name other
than that of the Holder of such Note or (ii) shares of Common Stock represented by a certificate
bearing the Restricted Stock Legend are transferred subsequently by such Holder, then, unless (i)
with respect to shares issued upon conversion of Restricted Notes, the Restricted Securities Legend
on the Global Securities has been removed pursuant to Section 2.07(c) or (ii) a shelf registration
statement has become effective with respect to the resale of such shares of Common Stock and such
shares are being transferred pursuant thereto, the Holder must deliver to the transfer agent for
the Common Stock a certificate in substantially the form of Exhibit E as to compliance with the
restrictions on transfer applicable to such shares of Common Stock and neither the transfer agent
nor the registrar for the Common Stock shall be required to register any transfer of such Common
Stock not so accompanied by a properly completed certificate.



     (c) Except in connection with a transfers described in Section 12.11(b), if certificates
representing shares of Common Stock are issued upon the registration of transfer, exchange or
replacement of any other certificate representing shares of Common Stock bearing the Restricted
Stock Legend, or if a request is made to remove such Restricted Stock Legend from certificates
representing shares of Common Stock, the certificates so issued shall bear the Restricted Stock
Legend, or the Restricted Stock Legend shall not be removed, as the case may be, unless there is
delivered to the Company such satisfactory evidence, which, in the case of a transfer made pursuant
to Rule 144 under the Securities Act, may include an opinion of counsel pursuant to the laws in the
State of New York, as may be reasonably required by the Company, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144 under the Securities Act or that such shares of Common Stock are
securities that are not “restricted” within the meaning of Rule 144 under the Securities Act. Upon
provision to the Company of such reasonably satisfactory evidence, the Company shall cause the
transfer agent for the Common Stock to countersign and deliver certificates representing shares of
Common Stock that do not bear the legend.



     (d) Notwithstanding Section 12.11(c), any stock certificate representing shares of Common
Stock issued upon conversion of Non-Affiliate Notes (or security issued in exchange or substitution
therefor) as to which the restrictions on transfer shall have expired in accordance with their
terms or that has been transferred, replaced or exchanged on or after the date that the Company,
pursuant to Section 2.07(c), removes the Restricted Securities Legend from the Non-



69









 







Affiliate Notes, or that has been transferred pursuant to a resale registration statement that
has been declared effective under the Securities Act may, upon surrender of such stock certificate
to the Registrar for exchange, be exchanged for a new stock certificate, of like tenor and
aggregate number of shares, which shall not bear any Restricted Stock Legend.



     SECTION 12.12. Make Whole Premium Upon a Designated Event. If there shall have
occurred a Designated Event that (a) constitutes a transaction described in clause (a) or (b) of
the definition of a Change of Control, or (b) but for the 105% trading price exception contained in
clause (x) of the proviso to such definition would constitute a Change of Control, the Company
shall pay a “Make Whole Premium” to the Holders of the Notes who surrender its Notes for
conversion during the period beginning 10 Trading Days before the anticipated effective date of
such Designated Event (the “Effective Date”, which shall be announced by the Company in any
notice or release announcing the applicable transaction) and ending at the close of business on the
Business Day immediately preceding the Designated Event Payment Date by increasing the applicable
Conversion Rate for such Notes by a number of additional shares of Common Stock per $1,000
principal amount of Notes, as determined in accordance with the table below, based on the Effective
Date and the price (the “Stock Price”) paid per share of Common Stock in such Designated
Event on such Effective Date; provided that (i) if the Stock Price on the Effective Date is not set
forth on the table below but is between two Stock Prices specified on the table below or the
Effective Date is not set forth on the table below but is between two Effective Dates specified on
the table below, the Make Whole Premium will be determined by a straight-line interpolation between
the Make Whole Premiums set forth for the two Stock Prices and the two Effective Dates on the table
below based on a 365-day year, as applicable, (ii) if the Stock Price on the Effective Date equals
or exceeds $13.00 per share, subject to adjustment as set forth herein, no Make Whole Premium will
be paid, and (iii) if the Stock Price on the Effective Date is less than $2.63 per share, subject
to adjustment as set forth herein, no Make Whole Premium will be paid. If Holders of the Common
Stock receive only cash in the applicable Designated Event, the Stock Price shall be the cash
amount paid per share of the Common Stock in connection with such Designated Event. Otherwise, the
Stock Price shall be equal to the average Closing Sale Prices of the Common Stock for each of the
10 Trading Days immediately preceding, but not including, the applicable Effective Date.




70











 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	Stock Price
	Effective Date	 	$2.63	 	$3.00	 	$3.50	 	$4.00	 	$4.50	 	$5.00	 	$6.00	 	$7.00	 	$8.00	 	$9.00	 	$10.00	 	$11.00	 	$12.00	 	$13.00
	 
	April 1, 2009
	 	 	49.5949	 	 	 	39.6461	 	 	 	29.7148	 	 	 	22.8419	 	 	 	17.8578	 	 	 	14.1172	 	 	 	8.9737	 	 	 	5.7177	 	 	 	3.5743	 	 	 	2.1365	 	 	 	1.1646	 	 	 	0.5082	 	 	 	0.0954	 	 	 	0.0000	 
	April 15, 2010
	 	 	49.5949	 	 	 	38.9104	 	 	 	28.6903	 	 	 	21.8204	 	 	 	16.9403	 	 	 	13.3296	 	 	 	8.4276	 	 	 	5.3499	 	 	 	3.3292	 	 	 	1.9757	 	 	 	1.0631	 	 	 	0.4467	 	 	 	0.0340	 	 	 	0.0000	 
	April 15, 2011
	 	 	49.5949	 	 	 	37.6487	 	 	 	26.9361	 	 	 	20.0798	 	 	 	15.3900	 	 	 	12.0153	 	 	 	7.5376	 	 	 	4.7666	 	 	 	2.9521	 	 	 	1.7350	 	 	 	0.9118	 	 	 	0.3526	 	 	 	0.0000	 	 	 	0.0000	 
	April 15, 2012
	 	 	49.5949	 	 	 	35.1985	 	 	 	23.6419	 	 	 	16.8787	 	 	 	12.6003	 	 	 	9.6962	 	 	 	6.0284	 	 	 	3.8139	 	 	 	2.3596	 	 	 	1.3723	 	 	 	0.6948	 	 	 	0.2276	 	 	 	0.0000	 	 	 	0.0000	 
	April 15, 2013
	 	 	49.5949	 	 	 	29.0161	 	 	 	16.4788	 	 	 	10.4896	 	 	 	7.3767	 	 	 	5.5623	 	 	 	3.4992	 	 	 	2.2675	 	 	 	1.4166	 	 	 	0.8050	 	 	 	0.3611	 	 	 	0.0368	 	 	 	0.0000	 	 	 	0.0000	 
	April 15, 2014
	 	 	49.5949	 	 	 	3.5153	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






     The Stock Prices set forth in the first row of the table above shall be adjusted as of any
date on which the Conversion Rate of the Notes is adjusted. The adjusted Stock Prices will equal
the Stock Prices applicable immediately prior to such adjustment multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the
Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The
number of additional shares set forth in the table above will be adjusted in the same manner as the
Conversion Rate as set forth in Section 12.05 hereof, other than as a result of an adjustment of
the Conversion Rate by adding the Make Whole Premium as described above.



     For purposes of giving effect to the Make Whole Premium, the Conversion Price of the Notes
following payment of the Make Whole Premium shall be equal to the product of (a) the Conversion
Price immediately prior to payment of the Make Whole Premium and (b) the fraction obtained by
dividing (i) the Conversion Rate immediately prior to payment of the Make Whole Premium by (ii) the
Conversion Rate immediately after payment of the Make Whole Premium.



     Notwithstanding the foregoing paragraphs, in no event will the total number of shares of
Common Stock issuable upon conversion of a Note exceed 380.2281 per $1,000 principal amount of
Notes, subject to adjustment in the same manner as the Conversion Price as set forth in clauses (a)
through (d) of Section 12.05 hereof.



71









 






     IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed and attested,
all as of the date first above written, signifying their agreements contained in this Indenture.



	 	 	 	 	 
	 	AMKOR TECHNOLOGY, INC.

 	 
	 	By: 	/s/
Joanne Solomon	 
	 	 	Name:  	Joanne Solomon	 
	 	 	Title:  	Corporate Vice President and 

Chief Financial
Officer	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Susan
Freedman	 
	 	 	Name:  	Susan
Freedman	 
	 	 	Title:  	Vice President	 
	 




 









 





EXHIBIT A — FORM OF NOTE




     [Include the following legend for Global Securities only (the “Global Securities Legend”):]



     “THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS CONVERTIBLE SENIOR
SUBORDINATED NOTE FOR ALL PURPOSES.



     [As part of the Global Securities Legend, include the following legend on all Global
Securities for which DTC is to be the Depositary:]



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



     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED
FORM IN THE CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS 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 OR SUCH SUCCESSOR DEPOSITARY.”



     [Include the following legend on all Notes that are Restricted Notes other than Affiliate
Notes (the “Restricted Securities Legend”):]



     THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1)
REPRESENTS THAT IT AND ANYACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND



A-1 









 







THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES
FOR THE BENEFIT OF AMKOR TECHNOLOGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME
AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY OR ANY OF
ITS SUBSIDIARIES, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR (C) TO A PERSON YOU REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER (A
“QIB”) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB AND TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



     PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) ABOVE (OTHER THAN A
TRANSFER PURSUANT TO RULE 144), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



     [Include the following legend on all Notes that are Affiliate Notes (the “Affiliate Security
Legend”):]



     THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT
OF AMKOR TECHNOLOGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X)
ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER (PROVIDED THAT, IN THE CASE
OF ANY SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO THIS CLAUSE (X), SO LONG AS THIS SECURITY OR SUCH
COMMON STOCK CONSTITUTES A “RESTRICTED SECURITY” AS DEFINED IN RULE 144, SUCH SALE, PLEDGE OR



A-2 









 







TRANSFER SHALL BE DONE IN COMPLIANCE WITH RULE 144), AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT:




(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT, OR




(C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PROVIDED THAT ANY TRANSFEREE SHALL AGREE IN WRITING, SATISFACTORY TO THE
COMPANY, TO BE BOUND BY THE FOREGOING RESTRICTIONS; OR




(D) A PLEDGE TO AN AFFILIATE OF THE HOLDER SO LONG AS SUCH PLEDGEE AGREES IN WRITING TO BE
BOUND BY THE TRANSFER RESTRICTIONS SET FORTH IN THIS LEGEND AND IN THE AGREEMENT, DATED
MARCH 26, 2009, AMONG JAMES J. KIM, 915 INVESTMENTS, LP AND THE COMPANY.


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (C) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY BE REASONABLY REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.




A-3 









 








[FORM OF FACE OF NOTE]




			
	 	 	 
	No. [  ]
	 	 CUSIP:
	$[  ]
	 	ISIN:






6.00% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2014




     AMKOR TECHNOLOGY, INC., a Delaware corporation (together with its successors and assigns, the
“Company”), promises to pay to [                                        ], or registered assigns, the principal sum
of [                                        ] Dollars ($[                ]) [If the Note is Global Security, add the
following: , as revised by the Schedule of Exchanges of Interest in Global Security attached
hereto], on April 15, 2014.



Interest Payment Dates: April 15 and October 15, commencing October 15, 2009.




Regular Record Dates: April 1 and October 1




Dated: [                    ]




Additional provisions of this Note are set forth on the other side of this Note.




A-4 









 




IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by a
duly authorized officer.




	 	 	 	 	 
	 	AMKOR TECHNOLOGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Trustee’s Certificate of Authentication:




This is one of the Notes described in the

within-mentioned Indenture:




U.S. BANK NATIONAL ASSOCIATION, as Trustee




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 






A-5 









 







[FORM OF REVERSE SIDE OF NOTE]




AMKOR TECHNOLOGY, INC.




6.00% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2014



Capitalized terms used by not defined herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.




     1. INTEREST. Amkor Technology, Inc., a Delaware corporation (the “Company”), promises
to pay interest on the principal amount of this Note at the rate per annum shown above; provided
that such rate may be increased from time to time as provided in the Indenture, including Sections
4.10 and 6.02(b) thereof. The Company will pay interest semi-annually in arrears on April 15 and
October 15 of each year, beginning October 15, 2009. Interest on the Notes will accrue from the
most recent Interest Payment Date to which interest has been paid or, if no interest has been paid,
from April 1, 2009. Interest, if any, will be computed on the basis of a 360-day year composed of
twelve 30-day months. The Company shall pay any increased interest required to be paid by it
pursuant to Section 4.10 and Section 6.02(b) of the Indenture in the manner and on the dates
otherwise provided herein for the payment of interest.



     2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest)
to the Person in whose name each Note is registered at the close of business on the April 1 or
October 1 immediately preceding the relevant Interest Payment Date (each a “Regular Record
Date”) (other than with respect to a Note or portion thereof repurchased in connection with a
Designated Event on a repurchase date, during the period from the close of business on a Regular
Record Date to (but excluding) the next succeeding Interest Payment Date, in which case accrued
interest shall be payable (unless such Note or portion thereof is converted) to the Holder of the
Note or portion thereof repurchased in accordance with the applicable repurchase provisions of the
Indenture). A Holder must surrender Notes to a Paying Agent to collect principal payments. The
Company will pay the principal of, and interest on the Notes at the office or agency of the Company
maintained for such purpose, in money of the United States that at the time of payment is legal
tender for payment of public and private debts. Until otherwise designated by the Company, the
Company’s office or agency maintained for such purpose will be the principal Corporate Trust Office
of the Trustee (as defined below). However, the Company may pay principal, and interest by check
payable in such money, and may mail such check to the Holders of the Notes at their respective
addresses as set forth in the Register of Holders of Notes.



          Payments in respect of Notes represented by a Global Security (including principal and
interest) will be made by the transfer of immediately available funds to the accounts specified by
the Depositary. The Company will make all payments in respect of a Definitive Security (including
principal and interest) by mailing a check to the registered address of each Holder thereof as set
forth in the Note Register; provided, however, that payments on the Notes may also be made, in the
case of a Holder of at least $2,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 15 days



A-6 









 







immediately preceding the relevant Record Date (or such other date as the Trustee may accept
in its discretion).



     3. PAYING AGENT AND REGISTRAR. U.S. Bank National Association (together with any successor
Trustee under the Indenture referred to below, the “Trustee”), will act as Paying Agent,
Conversion Agent and Registrar. The Company may change the Paying Agent, Conversion Agent,
Registrar or co-registrar without prior notice. Subject to certain limitations in the Indenture,
the Company or any of its subsidiaries may act in any such capacity.



     4. INDENTURE. The Company issued the Notes under an Indenture dated as of April 1, 2009 (the
“Indenture”) between the Company and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the “TIA”) as in effect on the Issue
Date. The Notes are subject to, and qualified by, all such terms, certain of which are summarized
hereon, and Holders are referred to the Indenture and the TIA for a statement of such terms.
However, to the extent any provision of any Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The Company will
furnish to any Holder upon written request and without charge a copy of the Indenture. Requests
may be made to: Chief Financial Officer, Amkor Technology, Inc., 1900 Price Road, Chandler, Arizona
85286.



     5. DESIGNATED EVENT. Upon a Designated Event, the Company shall make a Designated Event Offer
to repurchase all outstanding Notes at a price equal to 100.0% of the aggregate principal amount of
the Notes, plus accrued and unpaid interest to, but excluding, the date of repurchase, such offer
to be made as provided in the Indenture. To accept the Designated Event Offer, the Holder hereof
must comply with the terms thereof, including surrendering this Note, with the “Option of
Holder to Elect Repurchase” portion hereof completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent, at the address specified in the notice of the
Designated Event Offer mailed to Holders as provided in the Indenture, prior to termination of the
Designated Event Offer.



     If there shall occur a Designated Event that constitutes a Change of Control, the Company
shall pay a “Make Whole Premium” upon conversion of a Note in certain circumstances as
described in the Indenture.



     6. SUBORDINATION. The Company’s payment of the principal of, and interest on the Notes is
subordinated to the prior payment in full of the Company’s Senior Debt as set forth in the
Indenture. Each Holder by his or her acceptance hereof covenants and agrees that all payments of
the principal of, and interest on the Notes by the Company shall be subordinated in accordance with
the provisions of Article XI of the Indenture, and each Holder accepts and agrees to be bound by
such provisions. The Company agrees, and each Holder by accepting a Note agrees, that the
indebtedness evidenced by the Note is equal in right of payment to the Existing Pari Passu
Indebtedness.



     7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. As a



A-7 









 







condition of transfer, the Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and the Company may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture. The Company or the Registrar
need not exchange or register the transfer of any Note or portion of a Notes submitted for
repurchase.



     8. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all
purposes.



     9. AMENDMENTS AND WAIVERS. Subject to certain exceptions set forth in the Indenture, (i) the
Company and the Trustee may amend the Indenture or the Notes with the written consent of the
Holders of at least a majority in principal amount of the then outstanding Notes held by Persons
other than an Affiliated Entity (including consents obtained in connection with tender offer or
exchange offer for Notes) and (ii) any existing default may be waived with the consent of (x) with
respect to an acceleration of the Notes initiated by the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Non-Affiliate Notes, by Holders of a majority in
aggregate principal amount of the then outstanding Non-Affiliate Notes, or (y) with respect to an
acceleration of the Notes initiated by a 50% Affiliated Holder, by any Affiliated Entity that
beneficially owns at least 50% in aggregate principal amount of the then-outstanding Notes.



     The Company and the Trustee may amend the Indenture or the Notes without notice to or the
consent of any Holder of a Note to: (i) cure any ambiguity or correct or supplement any defective
or inconsistent provision contained in the Indenture or make any other changes in the provisions of
the Indenture which the Company and the Trustee may deem necessary or desirable provided such
amendment does not materially and adversely affect the rights of the Holders; (ii) provide for
uncertificated Notes in addition to or in place of certificated Notes; (iii) evidence the
succession of another Person to the Company and provide for the assumption by such successor of the
covenants and obligations of the Company thereunder and in the Notes as permitted by Section 5.01
of the Indenture; (iv) provide for conversion rights and/or repurchase rights of Holders in the
event of consolidation, merger or sale of all or substantially all of the assets of the Company as
required to comply with Sections 5.01 and/or 12.06 of the Indenture; (v) increase the Conversion
Rate; (vi) make any changes that would provide the Holders with any additional rights or benefits
to Holders or that does not adversely affect the legal rights under the Indenture of any such
Holder; or (vii) comply with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA.



     Without the consent of each Holder of a Note affected (including any Notes of a Holder that is
an Affiliated Entity), an amendment or waiver under Section 9.02 of the Indenture may not (with
respect to any Notes held by a non-consenting Holder): (i) reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver; (ii) reduce the principal of, any
Designated Event Payment in respect of (including any Make Whole Premium payable), or change the
fixed maturity of, any Note; (iii) reduce the rate of, or change the time for payment of, interest
on any Note including defaulted interest, if any; (iv) waive a Default or Event of Default in the
payment of principal of or interest on the Notes (except a rescission of acceleration of the Notes
as provided in Section 6.02 of the Indenture); (v) make any Note payable in money other than as
provided for in the Indenture and in the Notes; (vi) make any



A-8 









 







change in the provisions of the Indenture relating to waivers of past Defaults or Events of
Default or the rights of Holders to receive payments of principal of, or interest or the Notes;
(vii) except as permitted by the Indenture (including Section 9.01(a) thereof), reduce the
Conversion Rate or modify the provisions contained in the Indenture relating to conversion of the
Notes in a manner adverse to the Holders thereof; or (viii) make any change to the abilities of
Holders to enforce their rights under the Indenture or the provisions of clauses (i) through
(viii).



     In addition, any amendment to Article XI of the Indenture shall require, if such amendment
would adversely affect the rights of Holders of the Notes, the consent of (i) at least 75% in
aggregate principal amount of the Notes then outstanding and (ii) at least 75% in aggregate
principal amount of the Notes then outstanding (other than those held by an Affiliated Entity.



     10. DEFAULTS AND REMEDIES. An “Event of Default” with respect to any Notes occurs if:
(i) the Company defaults in the payment of principal of the Notes when due at maturity, upon
repurchase, upon acceleration or otherwise, whether or not such payment is prohibited by the
subordination provisions set forth in Article XI of the Indenture; or (ii) the Company defaults in
the delivery when due of all Common Stock deliverable upon conversion with respect to the Notes,
which default continues for five days; or (iii) the Company defaults in the payment of any
installment of interest on the Notes when due, whether or not such payment is prohibited by the
subordination provisions set forth in Article XI of the Indenture, including any interest payable
in connection with a repurchase pursuant to Section 4.06 or pursuant to Section 4.10 of the
Indenture, and continuance of such default for 30 days or more; or (iv) the Company defaults (other
than a default set forth in clauses (i), (ii) and (iii) above and clauses (v) and (vi) below) in
the performance of, or breaches, any other covenant of the Company set forth in the Indenture or
the Notes and fails to remedy such default or breach within a period of 60 days after the receipt
of written notice (“Notice”) from the Trustee or the Holders of either (a) at least 25% in
aggregate principal amount of the then outstanding Non-Affiliate Notes or (b) a 50% Affiliated
Holder; or (iv) the Company defaults in the payment of the Designated Event Payment in respect of
the Notes on the Designated Event Payment Date, whether or not such payment is prohibited by the
subordination provisions set forth in Article XI of the Indenture; or (v) the Company fails to
provide timely notice of any Designated Event in accordance with Section 4.06 of the Indenture; or
(vi) failure of the Company or failure of any Material Subsidiary to make any payment at maturity,
including any applicable grace period, in respect of indebtedness for borrowed money of, or
guaranteed or assumed by, the Company or any Material Subsidiary, which payment is in an amount in
excess of $20,000,000, and continuance of such failure for 30 days after receipt of Notice; or
(vii) default by the Company or default by any Material Subsidiary with respect to any indebtedness
referred to in clause (vi) above, which default results in the acceleration of any such
indebtedness of an amount in excess of $20,000,000 without such indebtedness having been paid or
discharged or such acceleration having been cured, waived, rescinded or annulled for 30 days after
receipt of Notice; or (viii) certain events involving bankruptcy, insolvency or reorganization of
the Company or any Material Subsidiary. If an Event of Default occurs and is continuing, (i) the
Trustee,(by written notice to the Company); (ii) the Holders of at least 25% in aggregate principal
amount of the then-outstanding Notes that are not held by an Affiliated Entity, by written notice
to the Company and the Trustee, or (iii), a 50% Affiliated Holder, by written notice to the Company
and the Trustee, may declare the unpaid principal of, and accrued and unpaid interest, on all



A-9 









 







Notes then outstanding to be due and payable immediately, except that in the case of an Event
of Default arising from certain events of bankruptcy, insolvency, or reorganization with respect to
the Company all outstanding Notes become due and payable without further action or notice. Holders
of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require an indemnity satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of a majority in principal amount of the then outstanding
Notes that are not held by an Affiliated Entity may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default (except a default
in payment of principal, or interest, if applicable) if it determines that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to the Trustee.



     11. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee or any of its Affiliates, in their
individual or any other capacities, may make or continue loans to or guaranteed by, accept deposits
from and perform services for the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates as if it were not Trustee.



     12. NO RECOURSE AGAINST OTHERS. No director, officer, employee or stockholder, as such, of
the Company shall have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the Notes.



     13. AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.



     14. ABBREVIATIONS. Customary abbreviations may be used in the name of a holder or an
assignee, such as: TEN CO = 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 Gifts to Minors Act.



     15. CONVERSION. Subject to and upon compliance with the provisions of the Indenture, the
registered Holder of this Note has the right at any time on or before the close of business on the
last Trading Day prior to the Maturity Date (or in case this Note or any portion hereof is subject
to a duly completed election for repurchase, on or before the close of business on the Designated
Event Offer Termination Date (unless the Company defaults in payment due upon repurchase)) to
convert each $1,000 principal amount of notes into 330.6332 shares of common stock of the Company
(“Common Stock”), as adjusted from time to time as provided in the Indenture, including
with respect to the Make Whole Premium (the “Conversion Rate”), upon surrender of this Note
to the Company at the office or agency maintained for such purpose (and at such other offices or
agencies designated for such purpose by the Company), accompanied by written notice of conversion
duly executed (and if the shares of Common Stock to be issued on conversion are to be issued in any
name other than that of the registered Holder of this Note by instruments of transfer, in form
satisfactory to the Company, duly executed by the registered Holder or its duly authorized
attorney) and, in case such surrender shall be made during the period from the close of business on
the Regular Record Date immediately preceding any Interest Payment Date through the close of
business on the last Trading Day immediately



A-10 









 







preceding such Interest Payment Date, also accompanied by payment, in funds acceptable to the
Company, of an amount equal to the interest, otherwise payable on such Interest Payment Date on the
principal amount of this Note then being converted, provided, however, that no such payment need be
made if the Notes are surrendered for conversion on or after the final Regular Record Date.
Subject to the aforesaid requirement for a payment in the event of conversion after the close of
business on a Regular Record Date immediately preceding an Interest Payment Date, no adjustment
shall be made on conversion for interest accrued hereon or for dividends on Common Stock delivered
on conversion. The right to convert this Note is subject to the provisions of the Indenture
relating to conversion rights in the case of certain consolidations, mergers, or sales or transfers
of substantially all the Company’s assets.



     The Company shall not issue fractional shares or scrip representing fractions of shares of
Common Stock upon any such conversion, but shall make an adjustment therefore in cash based upon
the current market price of the Common Stock on the last Trading Day prior to the date of
conversion or, in lieu of making such cash payment, the Company may elect to round up to the next
whole share the number of shares of Common Stock to be issued to the Holder of this Note upon
conversion.



     16. DESIGNATED SENIOR DEBT. This Note shall be “Designated Senior Debt” for purposes
of the indenture governing the Company’s 6.25% Convertible Subordinated Notes due 2013.



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



          The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture which has in it the text of this Note in larger type. Requests may be made
to the Company at the address set forth for notice in the Indenture.





A-11 











 





SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY




     The following exchanges of a part of this Global Security for an interest in another Global
Security or for a Definitive Security, or exchanges of a part of another Global Security or
Definitive Security for an interest in this Global Security, have been made:



	 	 	 	 	 	 	 	 	 
	Date of Transfer
	 	Amount of Decrease

in Principal Amount

of this Global

Security
	 	Amount of Increase

in Principal Amount

of this Global

Security
	 	Principal Amount of

this Global Security

following such

increase or decrease
	 	Signature of

Authorized

Signatory of Trustee

or Registrar
	 
	 	 
	 	 
	 	 
	 	 





A-12









 





FORM OF CONVERSION NOTICE TO: AMKOR TECHNOLOGY, INC.




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



Dated:


Fill in for registration of shares if to be delivered, and Notes if to be issued, other than to and
in the name of the registered Holder:




     (Please Print):



	 	 	 
	 

                                        (Name)

	 	 
	 
	 	 
	 

                                 (Street Address)

	 	 
	 
	 	 
	 

                         (City, State and Zip Code)

	 	 






	 	 	 	 	 
	Signature Guarantee:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	Signature (s)
	 	 






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




          $                    ,000




Social Security or other Taxpayer Identification Number




          Date:                                         




          [Medallion Signature Guarantee:                                         




[Signatures must be guaranteed by an eligible Guarantor Institution (banks, brokers, dealers,
savings and loan associations and credit unions) with membership in an approved signature guarantee
medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares are to be
issued, or Notes are to be delivered, other than to and in the name of the registered holder(s).
Medallion Signature Guarantees will be required for Definitive Securities.]




A-13









 





ASSIGNMENT FORM




To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to




	 	 	 	 	 
	 

	 	 

(Insert assignee’s social security or tax I.D. no.)
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

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





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




	 	 	 	 	 	 	 
	 	 	Your Signature:	 	 
	 

	 	 	 	 

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






	 	 	 	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Medallion Signature Guarantee: 	 
	 

	 	 	 	 	 	 




[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS AN AFFILIATE SECURITIES LEGEND ––]
In connection with any transfer of any of the Convertible Subordinated Notes evidenced by this
certificate which are “restricted securities” (as defined in Rule 144 (or any successor thereto)
under the Securities Act), the undersigned confirms that the Convertible Subordinated Notes are
being transferred:




CHECK ONE BOX BELOW





	 	(1)	 	o to the Company or one of its subsidiaries; or
	 
	 	(2)	 	o pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
	 
	 	(3)	 	o pursuant to an shelf registration statement of the
Company that has been declared effective under the Securities Act of 1933, in
connection with such transfer.
	 
	 	(4)	 	o to Persons who agree to be bound by the restrictions
applicable to such Holders for so long as such transferred securities
constitutes “restricted securities.




Unless one of the boxes is checked, the Registrar will refuse to register any of the Convertible
Subordinated Notes evidenced by this certificate in the name of any Person other than the
registered Holder thereof; provided, however, that if box (2) is checked, the Trustee may require,
prior to registering any such transfer of the Convertible Subordinated Notes, such certifications


A-14









 






and other information, including legal opinions, as the Company has reasonably requested in
writing, by delivery to the Trustee of a standing letter of instruction, to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.




	 	 	 	 	 	 	 
	 	 	Your Signature: 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)	 	 






	 	 	 	 	 	 	 
	 

	 	Date: 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Medallion Signature Guarantee:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 





[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS A RESTRICTED SECURITIES LEGEND ––]
In connection with any transfer of any of the Convertible Subordinated Notes evidenced by this
certificate which are “restricted securities” (as defined in Rule 144 (or any successor thereto)
under the Securities Act), the undersigned confirms that the Convertible Subordinated Notes are
being transferred:




          CHECK ONE BOX BELOW





	 	(1)	 	o to the Company or one of its subsidiaries; or
	 
	 	(2)	 	o pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
	 
	 	(3)	 	o pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
	 
	 	(4)	 	o pursuant to an shelf registration statement of the
Company that has been declared effective under the Securities Act of 1933, in
connection with the transfer of such shares of Common Stock .





Unless one of the boxes is checked, the Registrar will refuse to register any of the Convertible
Subordinated Notes evidenced by this certificate in the name of any Person other than the
registered Holder thereof; provided, however, that if box (2) or (3) is checked, the Trustee may
require, prior to registering any such transfer of the Convertible Subordinated Notes, such
certifications and other information, and if box (3) is checked such legal opinions, as the Company
has reasonably requested in writing, by delivery to the Trustee of a standing letter of
instruction, to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act of 1933; provided
that this paragraph shall not be applicable to any Convertible Subordinated Notes which are not
“restricted securities” (as defined in Rule 144 (or any successor thereto) under the Securities
Act).



	 	 	 	 	 	 	 
	 	 	Your Signature: 	 
	 

	 	 	 	 

(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
	 	 






A-15









 






	 	 	 	 	 	 	 
	 

	 	Date: 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 	 	Medallion Signature Guarantee: 	 	 	 	 
	 

	 	 	 	 	 

	 	 






A-16









 






OPTION OF HOLDER TO ELECT REPURCHASE




     If you wish to have this Note repurchased by the Company pursuant to Section 4.06 of the
Indenture, as the case may be, check the box: o



     If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.06
of the Indenture, state the amount (in multiples of $1,000): $                    .



	 	 	 	 	 	 	 
	 	 	Your Signature: 	 
	 

	 	 	 	 

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






	 	 	 	 	 	 	 
	 

	 	Date: 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Medallion Signature Guarantee: 	 	 	 	 
	 

	 	 	 	 	 

	 	 







A-17











 





EXHIBIT B




FORM OF CERTIFICATE FOR TRANSFER

FROM AFFILIATED ENTITY TO ANOTHER AFFILIATED ENTITY




[Date]




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110





			
	Attention:	 	Corporate Trust Services (Amkor Technology, Inc.

6.00% Convertible Senior Subordinated Notes due 2014)






			
	          Re:	 	6.00% Convertible Senior Subordinated Notes due 2014

(the “Notes”) of Amkor Technology, Inc. (the “Company”)





Ladies and Gentlemen:




          Reference is hereby made to the Indenture, dated as of April 1, 2009 (as amended and
supplemented from time to time, the “Indenture”), between the Company and U.S. Bank National
Association, as trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.




          This certificate is delivered to request a transfer of US $ principal amount of the Notes (the
“Transferred Notes”) to the undersigned (the “Transferee”).




          Upon transfer, the Transferred Notes should be registered in the name of the new owner as
follows:




          Name:                                                             [
If applicable, add: as nominee for the transferee]




          Address:                                                            




          Taxpayer ID Number:                                                          
   




          The undersigned represents and warrants to you that, pursuant to Section [___] of the
Indenture, the transferee agrees to abide by all restrictions applicable to the transferor of the
Notes.




          You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 	 	[Name of Transferee]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Authorized Signature	 	 






B-1









 





EXHIBIT C




FORM OF CERTIFICATION 

FOR TRANSFER PURSUANT TO RULE 144




[Date]




U.S. Bank National Association

One Federal Street, 3rd Floor

Boston, MA 02110





			
	Attention:	 	Corporate Trust Services (Amkor Technology, Inc.

6.00% Convertible Senior Subordinated Notes due 2014)






			
	          Re:	 	6.00% Convertible Senior Subordinated Notes due 2014

(the “Notes”) of Amkor Technology, Inc. (the “Company”)





Ladies and Gentlemen:




          Reference is hereby made to the Indenture, dated as of April 1, 2009 (as amended and
supplemented from time to time, the “Indenture”), between the Company and U.S. Bank National
Association, as Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.




          In connection with our proposed sale of $                    aggregate principal amount of the Notes [in
the case of a transfer of an interest in a 144A Global Note: , which represent an interest in a
144A Global Note beneficially owned by] [in the case of a transfer of an Affiliated Entity Note:
held in the name of                     ] the undersigned (“Transferor”), we confirm that such sale has
been effected pursuant to and in accordance with Rule 144 under the Securities Act of 1933, as
amended.




          You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.




	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	[Name of Transferor]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Authorized Signature







C-1











 





EXHIBIT D




FORM OF RESTRICTED STOCK LEGEND




[Affiliate Restricted Stock Legend]



THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER
AGREES FOR THE BENEFIT OF AMKOR TECHNOLOGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND
(Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:





(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR




(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES
ACT, OR




(C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT PROVIDED THAT ANY TRANSFEREE SHALL AGREE IN WRITING, SATISFACTORY TO THE
COMPANY, TO BE BOUND BY THE FOREGOING RESTRICTIONS; OR




(D) A PLEDGE TO AN AFFILIATE OF THE HOLDER SO LONG AS SUCH PLEDGEE AGREES IN WRITING TO BE
BOUND BY THE TRANSFER RESTRICTIONS SET FORTH IN THIS LEGEND AND IN THE AGREEMENT, DATED
MARCH 26, 2009, AMONG JAMES J. KIM, 915 INVESTMENTS, LP AND THE COMPANY.


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (C) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY BE REASONABLY REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.




D-1









 








[Non-Affiliate Restricted Stock Legend]




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER: (1) REPRESENTS THAT IT AND ANYACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE
BENEFIT OF AMKOR TECHNOLOGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE
LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER (PROVIDED
THAT, IN THE CASE OF ANY SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO THIS CLAUSE (X), SO LONG AS
THIS SECURITY CONSTITUTES A “RESTRICTED SECURITY” AS DEFINED IN RULE 144, SUCH SALE, PLEDGE OR
TRANSFER SHALL BE DONE IN COMPLIANCE WITH RULE 144), AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) TO A PERSON
IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (A “QIB”) THAT IS PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) ABOVE (OTHER THAN A
TRANSFER PURSUANT TO RULE 144), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



D-2









 





EXHIBIT E




FORM OF TRANSFER CERTIFICATE FOR TRANSFER

OF RESTRICTED COMMON STOCK




(Transfers pursuant to Section 12.11(c) of the Indenture)




Computershare Trust Co. N.A.

P.O. Box 43078

Providence, RI 02940-3078



Re:       Restricted Common Stock of Amkor Technology, Inc.




          Reference is hereby made to the Indenture dated as of April 1, 2009 (the “Indenture”) between
Amkor Technology, Inc. and U.S. Bank National Association, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.




          This letter relates to                     shares of Common Stock represented by the accompanying
certificate(s) that were issued upon conversion of Notes and which are held in the name of [name of
transferor] (the “Transferor”) to effect the transfer of such Common Stock.




          [FOR TRANSFERS BEARING THE AFFILIATE SECURITIES LEGEND —] Such shares of Common Stock are
being transferred:





CHECK ONE BOX BELOW



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	to the Company or one of its subsidiaries; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	pursuant to an shelf registration statement of the
Company that has been declared effective under the Securities Act of 1933, in
connection with the transfer of such shares of Common Stock .
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	to Persons who agree to be bound by the restrictions
applicable to such Holders for so long as such transferred securities
constitutes “restricted securities.






          Unless one of the boxes is checked, the transfer agent will refuse to register any of the
Common Stock evidenced by this certificate in the name of any Person other than the registered
Holder thereof; provided, however, that if box (2) is checked, the transfer agent may require,
prior to registering any such transfer of the Common Stock such certifications and other
information, and including such legal opinions, as the Company has reasonably requested in writing,
by delivery to the transfer agent of a standing letter of instruction, to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.




E-1









 








          [FOR TRANSFERS BEARING THE RESTRICTED SECURITIES LEGEND —] Such shares of Common Stock are
only being transferred:





CHECK ONE BOX BELOW



	 	 	 	 	 	 	 	 	 
	 

	 	 	(1	)	 	o
	 	to the Company or one of its subsidiaries; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	o
	 	pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(3	)	 	o
	 	pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(4	)	 	o
	 	pursuant to an shelf registration statement of the
Company that has been declared effective under the Securities Act of 1933, in
connection with the transfer of such shares of Common Stock .






          Unless one of the boxes is checked, the transfer agent will refuse to register any of the
Common Stock evidenced by this certificate in the name of any Person other than the registered
Holder thereof; provided, however, that if box (2) or (3) is checked, the transfer agent may
require, prior to registering any such transfer of the Common Stock such certifications and other
information, and if box (3) is checked such legal opinions, as the Company has reasonably requested
in writing, by delivery to the transfer agent of a standing letter of instruction, to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.]




	 	 	 	 	 
	 	[Name of Transferor],

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:





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