exv10w1



 







Exhibit 10.1




EXECUTION COPY




MIDWAY GAMES INC.




and




WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee




INDENTURE




Dated as of May 30, 2006




$75,000,000 Principal Amount




7.125% CONVERTIBLE SENIOR NOTES DUE 2026




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	I. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	1.01 Definitions
	 	 	1	 
	1.02 Other Definitions
	 	 	6	 
	1.03 Incorporation by Reference of Trust Indenture Act
	 	 	7	 
	1.04 Rules of Construction
	 	 	7	 
	II. THE SECURITIES
	 	 	8	 
	2.01 Form and Dating
	 	 	8	 
	2.02 Execution and Authentication
	 	 	8	 
	2.03 Registrar, Paying Agent and Conversion Agent
	 	 	9	 
	2.04 Paying Agent to Hold Money in Trust
	 	 	10	 
	2.05 Securityholder Lists
	 	 	10	 
	2.06 Transfer and Exchange
	 	 	10	 
	2.07 Replacement Securities
	 	 	11	 
	2.08 Outstanding Securities
	 	 	11	 
	2.09 Securities Held by the Company or an Affiliate
	 	 	12	 
	2.10 Temporary Securities
	 	 	12	 
	2.11 Cancellation
	 	 	12	 
	2.12 Defaulted Interest
	 	 	13	 
	2.13 CUSIP Numbers
	 	 	13	 
	2.14 Deposit of Moneys and Property
	 	 	13	 
	2.15 Book-Entry Provisions for Global Securities
	 	 	14	 
	2.16 Special Transfer Provisions
	 	 	14	 
	2.17 Restrictive Legends
	 	 	16	 
	2.18 Ranking
	 	 	16	 
	III. REDEMPTION AND REPURCHASE
	 	 	16	 
	3.01 Right of Redemption
	 	 	16	 
	3.02 Notices to Trustee
	 	 	17	 
	3.03 Selection of Securities to be Redeemed
	 	 	17	 
	3.04 Notice of Redemption
	 	 	17	 
	3.05 Effect of Notice of Redemption
	 	 	19	 
	3.06 Deposit of Redemption Price
	 	 	19	 
	3.07 Securities Redeemed in Part
	 	 	19	 






 i




 









 








TABLE OF CONTENTS

(cont.)




	 	 	 	 	 
	 	 	Page	 
	3.08 Repurchase of Securities at Option of the Holder
	 	 	20	 
	3.09 Repurchase at Option of Holder Upon a Fundamental Change
	 	 	23	 
	3.10 Conversion Arrangement on Call for Redemption
	 	 	29	 
	IV. COVENANTS
	 	 	29	 
	4.01 Payment of Securities
	 	 	29	 
	4.02 Maintenance of Office or Agency
	 	 	29	 
	4.03 Rule 144A Information and Periodic Reports
	 	 	30	 
	4.04 Compliance Certificate
	 	 	31	 
	4.05 Stay, Extension and Usury Laws
	 	 	31	 
	4.06 Corporate Existence
	 	 	31	 
	4.07 Notice of Default
	 	 	31	 
	4.08 Further Instruments and Acts
	 	 	31	 
	4.09 Limitation on the Incurrence of Additional Indebtedness
	 	 	31	 
	V. SUCCESSORS
	 	 	32	 
	5.01 When Company May Merge, Etc.
	 	 	32	 
	5.02 Successor Substituted
	 	 	32	 
	VI. DEFAULTS AND REMEDIES
	 	 	34	 
	6.01 Events of Default
	 	 	34	 
	6.02 Acceleration
	 	 	36	 
	6.03 Other Remedies
	 	 	36	 
	6.04 Waiver of Past Defaults
	 	 	37	 
	6.05 Control by Majority
	 	 	37	 
	6.06 Limitation on Suits
	 	 	37	 
	6.07 Rights of Holders to Receive Payment
	 	 	38	 
	6.08 Collection Suit By Trustee
	 	 	38	 
	6.09 Trustee May File Proofs of Claim
	 	 	38	 
	6.10 Priorities
	 	 	39	 
	6.11 Undertaking for Costs
	 	 	39	 
	VII. TRUSTEE
	 	 	39	 
	7.01 Duties of Trustee
	 	 	39	 
	7.02 Rights of Trustee
	 	 	40	 
	7.03 Individual Rights of Trustee
	 	 	41	 






 ii




 









 








TABLE OF CONTENTS

(cont.)




	 	 	 	 	 
	 	 	Page	 
	7.04 Trustee’s Disclaimer
	 	 	42	 
	7.05 Notice of Defaults
	 	 	42	 
	7.06 Reports By Trustee to Holders
	 	 	42	 
	7.07 Compensation and Indemnity
	 	 	42	 
	7.08 Replacement of Trustee
	 	 	43	 
	7.09 Successor Trustee by Merger, Etc.
	 	 	44	 
	7.10 Eligibility; Disqualification
	 	 	44	 
	7.11 Preferential Collection of Claims Against Company
	 	 	44	 
	VIII. DISCHARGE OF INDENTURE
	 	 	44	 
	8.01 Termination of the Obligations of the Company
	 	 	44	 
	8.02 Application of Trust Money
	 	 	45	 
	8.03 Repayment to Company
	 	 	45	 
	8.04 Reinstatement
	 	 	45	 
	IX. AMENDMENTS
	 	 	46	 
	9.01 Without Consent of Holders
	 	 	46	 
	9.02 With Consent of Holders
	 	 	46	 
	9.03 Compliance with Trust Indenture Act
	 	 	47	 
	9.04 Revocation and Effect of Consents
	 	 	48	 
	9.05 Notation on or Exchange of Securities
	 	 	48	 
	9.06 Trustee Protected
	 	 	49	 
	9.07 Effect of Supplemental Indentures
	 	 	49	 
	X. CONVERSION
	 	 	49	 
	10.01 Conversion Privilege; Restrictive Legends
	 	 	49	 
	10.02 Conversion Procedure
	 	 	50	 
	10.03 Fractional Shares
	 	 	51	 
	10.04 Taxes on Conversion
	 	 	51	 
	10.05 Company to Provide Stock
	 	 	51	 
	10.06 Adjustment of Conversion Rate
	 	 	52	 
	10.07 No Adjustment
	 	 	56	 
	10.08 Other Adjustments
	 	 	57	 
	10.09 Adjustment Upon 90% Beneficial Ownership by Redstone Parties
	 	 	57	 
	10.10 Adjustments for Tax Purposes
	 	 	59	 






 iii





 









 








TABLE OF CONTENTS

(cont.)




	 	 	 	 	 
	 	 	Page	 
	10.11 Notice of Adjustment
	 	 	59	 
	10.12 Notice of Certain Transactions
	 	 	59	 
	10.13 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales
on Conversion Privilege
	 	 	59	 
	10.14 Trustee’s Disclaimer
	 	 	59	 
	10.15 Rights Distributions Pursuant to Stockholders’ Rights Plans
	 	 	60	 
	10.16 Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection
with Make-Whole Fundamental Changes
	 	 	61	 
	10.17 Adjustment to the Conversion Rate on or Prior to May 31, 2009
	 	 	66	 
	10.18 Additional Adjustment to the Conversion Price
	 	 	67	 
	XI. MISCELLANEOUS
	 	 	69	 
	11.01 Trust Indenture Act Controls
	 	 	69	 
	11.02 Notices
	 	 	69	 
	11.03 Communication by Holders with Other Holders
	 	 	70	 
	11.04 Certificate and Opinion as to Conditions Precedent
	 	 	70	 
	11.05 Statements Required in Certificate in Opinion
	 	 	70	 
	11.06 Rules by Trustee and Agents
	 	 	71	 
	11.07 Legal Holidays
	 	 	71	 
	11.08 Duplicate Originals
	 	 	71	 
	11.09 Governing Law
	 	 	71	 
	11.10 No Adverse Interpretation of Other Agreements
	 	 	72	 
	11.11 Successors
	 	 	72	 
	11.12 Separability
	 	 	72	 
	11.13 Table of Contents, Headings, Etc.
	 	 	72	 
	11.14 Calculations in Respect of the Securities
	 	 	72	 
	11.15 No Personal Liability of Directors, Employees or Stockholders
	 	 	72	 






	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Global Security
	Exhibit B-1

	 	-
	 	Form of Private Placement Legend
	Form B-2

	 	-
	 	Form of Legend for Global Security
	Exhibit C

	 	-
	 	Form of Notice of Transfer Pursuant to Registration Statement
	Exhibit D

	 	-
	 	Form of Opinion of Counsel in Connection with Registration of Securities






 iv




 









 








[CROSS-REFERENCE TABLE]




	 	 	 
	TIA Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.08; 7.10; 11.02
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	313(a)
	 	7.06
	(b)(1)
	 	7.06
	(b)(2)
	 	7.06
	(c)
	 	7.06; 11.02
	(d)
	 	7.06
	314(a)
	 	4.03
	(b)
	 	N.A.
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	11.05
	(f)
	 	N.A.
	315(a)
	 	7.01(B)
	(b)
	 	7.05; 11.02
	(c)
	 	7.01(A)
	(d)
	 	7.01(C)
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	9.04
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	11.01






 v




 









 







INDENTURE, dated as of May 30, 2006, between Midway Games Inc., a Delaware corporation (the
“Company”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”).



Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Company’s 7.125% Convertible Senior Notes due 2026 (the
“Securities”).




I. DEFINITIONS AND INCORPORATION BY REFERENCE




1.01 Definitions.



The term “Additional Interest” has the meaning ascribed to it in the Registration Rights Agreement.



“Affiliate” means any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. For this purpose, “control” shall mean the power to
direct the management and policies of a person through the ownership of securities, by contract or
otherwise.



“Anti-Dilution Conversion Rate Adjustments” means any adjustment of the Conversion Rate pursuant to
Section 10.06.



“Board of Directors” means the Board of Directors of the Company or any committee thereof
authorized to act for it hereunder.



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



“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a
lease that are required to be classified and accounted for as capitalized lease obligations under
GAAP. For purposes of this definition, the amount of such obligations at any date will be the
capitalized amount of such obligations at such date, determined in accordance with GAAP.



“Capital Stock” of any person means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of such person and all warrants or options to
acquire such capital stock.



“Closing Sale Price” means the price of a share of Capital Stock on the relevant date, determined
(a) on the basis of the closing per share sale price (or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the average of the average
bid and the average ask prices) on such date on the New York Stock Exchange or such other principal
U.S. national or regional securities exchange on which the Capital Stock is listed; or (b) if the
Capital Stock is not listed on a U.S. national or regional securities exchange, as reported by the
National Association of Securities Dealers Automated Quotation System; or (c) if not so quoted, as
reported by National Quotation Bureau, Incorporated or a similar organization. In the absence of
any such reporting, the Closing Sale Price shall be the fair market value of a share of such
Capital Stock, as determined reasonably and in good faith by the Company’s Board of Directors,
giving due consideration (among other factors that it may, acting reasonably and in




1









 







good faith, deem relevant to such valuation) to the voting, dividend, liquidation and conversion
rights of such Capital Stock.



“Common Stock” means the common stock, $0.01 par value per share, of the Company, or such other
Capital Stock of the Company into which the Company’s common stock is reclassified or changed.



“Company” means the party named as such above until a successor replaces it pursuant to the
applicable provision hereof and, thereafter, means such successor. The foregoing sentence shall
likewise apply to any such successor or subsequent successor.



Each of “Company Order” and “Company Request” means a written order or request signed on behalf of
the Company by any of the Company’s Chairman of the Board, its Chief Executive Officer, its
President, its Chief Operating Officer, its Chief Financial Officer, any Executive Vice President
or any Senior Vice President and by its Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary, and delivered to the Trustee.



“Conversion Rate” means the number of shares of Common Stock issuable upon conversion of a Security
per $1,000 principal amount, which Conversion Rate shall initially be 92.0810 shares of Common
Stock per $1,000 principal amount of Securities, subject to adjustment as provided in Article X.



“Conversion Price” means, as of any date of determination, the dollar amount derived by dividing
one thousand dollars ($1,000) by the Conversion Rate in effect on such date.



“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section
11.02 or such other address as the Trustee may give notice of to the Company and the Holders.



“Daily volume-weighted average price”, as used in Section 10.17, shall refer to such price as
reported by the BLOOMBERG PROFESSIONAL Service provided by Bloomberg L.P. or, if such service in no
longer providing such information, such other comparable service as the Company shall specify. To
the extent that the Common Stock is listed on the New York Stock Exchange, the daily
volume-weighted average price on the New York Stock Exchange will be determined based on the
Bloomberg function: “TICKER UN EQUITY AQR” or a successor function on such service. If for
whatever reason the daily volume-weighted average price is unavailable for a Trading Day, then the
Closing Sale Price of the Common Stock on that Trading Day shall be used in lieu of the daily
volume-weighted average price.



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



“Depositary” means The Depository Trust Company, its nominees and successors.



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



“Hedge Agreement” means any agreement that provides for an interest rate, credit, commodity or
equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, or any combination of, or option with respect to, these or
similar transactions, for the purpose of hedging the exposure of the Company or any of its
Subsidiaries to fluctuations in interest or exchange rates, loan, credit exchange, security or
currency valuations or commodity prices.




2









 







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



“Indebtedness” means (a) all obligations for borrowed money, (b) all obligations evidenced by
bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations
in respect of letters of credit or bankers acceptances; (c) all Capitalized Lease Obligations, (d)
obligations to pay the deferred purchase price of assets (other than trade payables incurred in the
ordinary course of business and repayable in accordance with customary trade practices); (e) all
obligations owing under Hedge Agreements; and (f) any obligation guarantying or intended to
guaranty (whether directly or indirectly guarantied, endorsed, co-made, discounted, or sold with
recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a)
through (e) above.



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



“Initial Purchaser” means Banc of America Securities LLC.



“Issue Date” means May 30, 2006.



“Make-Whole Fundamental Change” means (i) an Acquisition of Voting Control, a Qualifying Asset Sale
or a Qualifying Business Combination that occurs before June 6, 2013, provided any of the
consideration (excluding cash payments for fractional shares or pursuant to statutory appraisal
rights) for the Common Stock in such Acquisition of Voting Control, Qualifying Asset Sale or
Qualifying Business Combination consists of any combination of cash or securities (or other
property) that are neither (A) traded on a U.S. national securities exchange or quoted on the
Nasdaq National Market nor (B) scheduled to be so traded or quoted immediately after such
Acquisition of Voting Control, Qualifying Asset Sale or Qualifying Business Combination or (ii) a
Redstone Party Going Private Transaction that occurs before June 6, 2013.



“Maturity Date” means May 31, 2026.



“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, any Executive Vice President or any Senior Vice
President of the Company.



“Officer’s Certificate” means a certificate signed by an Officer of the Company.



“Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or
counsel for the Company, or other counsel reasonably acceptable to the Trustee.



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



“Public Acquirer Fundamental Change” shall mean (i) an acquisition of the Company pursuant to an
Acquisition of Voting Control, a Qualifying Asset Sale or a Qualifying Business Combination,
provided the acquirer in such Acquisition of Voting Control, Qualifying Asset Sale or Qualifying
Business Combination (or any entity that directly or indirectly controls such acquirer) has a class
of common stock (“Public Acquirer Common Stock”) that either (A) is traded on a U.S. national
securities exchange or quoted on the Nasdaq National Market or (B) will be so traded or quoted when
issued or exchanged in connection with such Acquisition of Voting Control, Qualifying Asset Sale or
Qualifying Business Combination or (ii) a Redstone




3









 







Party effecting a Redstone Party Going Private Transaction using Pubic Acquirer Common Stock of a
Redstone Party.



“Purchase Agreement” means the Purchase Agreement dated May 24, 2006 between the Company and the
Initial Purchaser.



“QIB” means a “qualified institutional buyer” within the meaning of Rule 144A promulgated under the
Securities Act.



“Redemption Date” means the date specified for Redemption of the Securities in accordance with the
terms of the Securities and this Indenture.



“Redemption Price” means, with respect to a Security to be redeemed by the Company in accordance
with Article III, one hundred percent (100%) of the outstanding principal amount of such Security
to be redeemed.



“Redstone Party” means Sumner M. Redstone or any of his affiliates, family members, estates and
heirs, or any trust or investment vehicle for the primary benefit of such person, including without
limitation National Amusements, Inc.



“Redstone Party Going Private Transaction” means a Termination of Trading resulting from an
accumulation of the Common Stock by a Redstone Party or a tender offer by any Redstone Party for
all of the outstanding shares of the Common Stock not owned by a Redstone Party.



“Refinancing Indebtedness” means Indebtedness of the Company or any Subsidiary issued to refinance
Indebtedness of or any Subsidiary so long as: (i) the aggregate principal amount (or initial
accreted value, if applicable) of such new Indebtedness as of the date of such proposed refinancing
does not exceed the aggregate principal amount (or accreted value as of such date, if applicable)
of the Indebtedness being refinanced (plus the amount of any premium required to be paid under the
terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred
by the Company or any Subsidiary in connection with such refinancing); and (ii) such new
Indebtedness has: (A) a weighted average life to maturity that is equal to or greater than the
weighted average life to maturity of the Indebtedness being refinanced, and (B) a final maturity
that is equal to or later than the final maturity of the Indebtedness being refinanced; and (iii)
if the Indebtedness being refinanced is: (A) Indebtedness of the Company or any Subsidiary, then
such Refinancing Indebtedness will be Indebtedness of the Company or such Subsidiary, as the case
may be; and (B) subordinated Indebtedness, then such Refinancing Indebtedness will be subordinate
to the Securities, at least to the same extent and in the same manner as the Indebtedness being
refinanced.



“Registration Rights Agreement” means the Registration Rights Agreement dated as of the date hereof
between the Company and the Initial Purchaser.



“Repurchase Notice” means a Repurchase Notice in the form set forth in the Securities.



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




4









 







“Restricted Security” means a Security that constitutes a “restricted security” within the meaning
of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.



“Rule 144A” means Rule 144A promulgated under the Securities Act, as such rule may be amended and
in effect from time to time.



“SEC” means the Securities and Exchange Commission.



“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Company or any
of its Subsidiaries, whereby the Company or any such Subsidiary transfers such property to a
person, and the Company or such Subsidiary leases it from such person.



“Securities” means the 7.125% Convertible Senior Notes due 2026 issued by the Company pursuant to
this Indenture.



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



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



“Significant Subsidiary” with respect to any person means any subsidiary of such person that
constitutes a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X
promulgated under the Securities Act, as such regulation is in effect on the date of this
Indenture.



“Subsidiary” means (i) a corporation a majority of whose Capital Stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by the
Company, by one or more subsidiaries of the Company or by the Company and one or more of its
subsidiaries or (ii) any other person (other than a corporation), including, without limitation, a
partnership or joint venture, in which the Company, one or more of its subsidiaries, or the Company
and one or more of its subsidiaries, directly or indirectly, at the date of determination thereof,
own at least a majority ownership interest entitled to vote in the election of directors, managers
or trustees (or members of any other equivalent governing body) thereof.



“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as amended and in
effect from time to time.



“Trading Day” means a day during which trading in securities generally occurs on the principal
national or regional securities exchange in the United States on which the Common Stock is then
listed or, if the Common Stock is not listed on a national or regional securities exchange in the
United States, on the National Association of Securities Dealers Automated Quotation System or, if
the Common Stock is not quoted on the National Association of Securities Dealers Automated
Quotation System, on the principal other market on which the Common Stock is then traded.



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



“Voting Stock” of any Person means the total voting power of all classes of the Capital Stock of
such Person entitled to vote generally in the election of directors of such Person.




5









 





1.02 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section	 
	“Acquirer Stock Conversion Right Adjustment”
	 	 	10.16	 
	“Acquisition of Voting Control”
	 	 	3.09	 
	“Additional Reset Determination Date”
	 	 	10.17	 
	“Aggregate Amount”
	 	 	10.06	 
	“Applicable Increase”
	 	 	10.16	 
	“Applicable Price”
	 	 	10.16	 
	“Bankruptcy Law”
	 	 	6.01	 
	“Business Day”
	 	 	11.07	 
	“Change in Control”
	 	 	3.09	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	10.02	 
	“Conversion Shares”
	 	 	10.06	 
	“Convertible Securities”
	 	 	10.18	 
	“Custodian”
	 	 	6.01	 
	“Determination Date”
	 	 	10.06	 
	“Dilutive Equity Issuance”
	 	 	10.17	 
	“Distribution Date”
	 	 	10.06	 
	“Effective Date”
	 	 	10.16	 
	“Event Of Default”
	 	 	6.01	 
	“Ex Date”
	 	 	10.06	 
	“Expiration Date”
	 	 	10.06	 
	“Expiration Time”
	 	 	10.06	 
	“Fundamental Change”
	 	 	3.09	 
	“Fundamental Change Notice”
	 	 	3.09	 
	“Fundamental Change Repurchase Date”
	 	 	3.09	 
	“Fundamental Change Repurchase Price”
	 	 	3.09	 
	“Fundamental Change Repurchase Right”
	 	 	3.09	 
	“Global Security”
	 	 	2.01	 
	“Legal Holiday”
	 	 	11.07	 
	“Make-Whole Consideration”
	 	 	10.16	 
	“Make-Whole Conversion Rate Adjustment”
	 	 	10.16	 
	“Measurement Date”
	 	 	10.09	 
	“Notice Of Default”
	 	 	6.01	 
	“Option Repurchase Date”
	 	 	3.08	 
	“Option Repurchase Notice”
	 	 	3.08	 
	“Option Repurchase Price”
	 	 	3.08	 
	“Participants”
	 	 	2.15	 
	“Paying Agent”
	 	 	2.03	 
	“Physical Securities”
	 	 	2.01	 
	“Private Placement Legend”
	 	 	2.17	 
	“Public Acquirer Common Stock”
	 	 	1.01	 
	“Repurchase At Holder’s Option”
	 	 	3.01	 
	“Reset Determination Date”
	 	 	10.17	 






6









 






	 	 	 	 	 
	Term	 	Defined in Section	 
	“Rights”
	 	 	10.18	 
	“Purchased Shares”
	 	 	10.06	 
	“Qualifying Asset Sale”
	 	 	3.09	 
	“Qualifying Business Combination”
	 	 	3.09	 
	“Redemption”
	 	 	3.01	 
	“Redstone adjustment”
	 	 	10.16	 
	“Reference Price”
	 	 	10.16	 
	“Registrar”
	 	 	2.03	 
	“Repurchase Upon Fundamental Change”
	 	 	3.01	 
	“Resale Restriction Termination Date”
	 	 	2.17	 
	“Rights”
	 	 	10.06	 
	“Shelf Registration Statement”
	 	 	2.16	 
	“Termination Of Trading”
	 	 	3.09	 
	“Underlying Shares”
	 	 	10.06	 
	“VWAP”
	 	 	10.17	 






1.03 Incorporation by Reference of Trust Indenture Act.



Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



The following TIA terms used in this Indenture have the following meanings:



“Commission” means the SEC;



“Indenture Securities” means the Securities;



“Indenture Security Holder” means a Securityholder or a Holder;



“Indenture To Be Qualified” means this Indenture;



“Indenture Trustee” or “Institutional Trustee” means the Trustee; and



“Obligor” on the indenture securities means the Company.



All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the
meanings so assigned to them.




1.04 Rules of Construction.



Unless the context otherwise requires:




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



     (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance
with U.S. generally accepted accounting principles in effect from time to time;



     (iii) “or” is not exclusive;



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     (iv) words in the singular include the plural and in the plural include the singular;



     (v) provisions apply to successive events and transactions;



     (vi) “close of business” on a date shall refer to 5:00 pm, New York City time, on such date;



     (vii) the term “interest” includes Additional Interest, unless the context otherwise requires
or unless the terms of the Registration Rights Agreement provide otherwise;



     (viii) “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 of this Indenture; and



     (ix) references to currency shall mean the lawful currency of the United States of America,
unless the context requires otherwise.



II. THE SECURITIES




2.01 Form and Dating.



The Securities and the Trustee’s certificate of authentication shall be substantially in the form
set forth in Exhibit A, which is incorporated in and forms a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock exchange rule or
usage, provided such notations, legends or endorsements are in a form reasonably acceptable to the
Company. The Company shall provide any such notations, legends or endorsements to the Trustee in
writing. Each Security shall be dated the date of its authentication.



Securities offered and sold in reliance on Rule 144A shall be issued initially in the form of one
or more Global Securities, in registered form, substantially in the form set forth in Exhibit
A (the “Global Security”), deposited with the Trustee as custodian for the Depositary, and
registered in the name of the Depositary or a nominee thereof, duly executed by the Company and
authenticated by the Trustee as hereinafter provided and bearing the legends set forth in
Exhibits B-1 and B-2. The aggregate principal amount of the Global Security may
from time to time be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided; provided, that in no event shall the
aggregate principal amount of the Global Security or Securities exceed $75,000,000.



Securities issued in exchange for interests in a Global Security pursuant to Section 2.15 may be
issued in the form of permanent certificated Securities in registered form in substantially the
form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any
legends required by Section 2.17.



2.02 Execution and Authentication.



One duly authorized Officer shall sign the Securities for the Company by manual or facsimile
signature.



A Security’s validity shall not be affected by the failure of an Officer whose signature is on such
Security to hold, at the time the Security is authenticated, the same office at the Company.




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



Upon a Company Order, the Trustee shall authenticate Securities for original issue in the aggregate
principal amount of $75,000,000. The aggregate principal amount of Securities outstanding at any
time may not exceed $75,000,000.



Upon a Company Order, the Trustee shall authenticate Securities not bearing the Private Placement
Legend to be issued to the transferee when sold pursuant to an effective registration statement
under the Securities Act as set forth in Section 2.16(B).



The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an
authenticating agent reasonably acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such authenticating
agent. An authenticating agent has the same rights as a Security Agent to deal with the Company
and its Affiliates.



If a Company Order pursuant to this Section 2.02 has been, or simultaneously is, delivered, any
instructions by the Company to the Trustee with respect to endorsement, delivery or redelivery of a
Security issued in global form shall be in writing but need not comply with Section 11.04 hereof
and need not be accompanied by an Opinion of Counsel.



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



2.03 Registrar, Paying Agent and Conversion Agent.



The Company shall maintain, or cause to be maintained, (i) an office or agency where Securities may
be presented for registration of transfer or for exchange (“Registrar”); (ii) an office or agency
where Securities may be presented for payment (“Paying Agent”); and (iii) an office or agency where
Securities may be presented for conversion (“Conversion Agent”). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may appoint or change
one or more co-Registrars, one or more additional paying agents and one or more additional
conversion agents without notice and may act in any such capacity on its own behalf. The term
“Registrar” includes any co-Registrar; the term “Paying Agent” includes any additional paying
agent; and the term “Conversion Agent” includes any additional conversion agent.



The Company shall enter into an appropriate agency agreement with any Security Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Security Agent. The Company shall notify the Trustee in writing of the name and address of any
Security Agent not a party to this Indenture. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07.



The Company initially appoints the Trustee as Paying Agent, Registrar and Conversion Agent and
designates the Corporate Trust Office of the Trustee for the purposes enumerated in the first
paragraph of this Section 2.03.




9









 





2.04 Paying Agent to Hold Money in Trust.



Each Paying Agent shall hold in trust for the benefit of the Securityholders or the Trustee all
moneys and, if applicable, other property held by the Paying Agent for the payment of the
Securities, and shall notify the Trustee of any Default by the Company in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to pay all money and, if
applicable, other property held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money and, if applicable, other property held by it to the Trustee and account for
any funds so paid by it. Upon payment over to the Trustee, the Paying Agent shall have no further
liability for such money and, if applicable, other property. If the Company acts as Paying Agent,
it shall segregate and hold as a separate trust fund all money and, if applicable, other property
held by it as Paying Agent.




2.05 Securityholder Lists.



The Trustee shall preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall (i) furnish to the Trustee on or before each interest payment date, a
list of the names and addresses of Securityholders appearing on the security register of the
Registrar; and (ii) at such other times as the Trustee may request in writing, furnish to the
Trustee, within thirty (30) days after the receipt by the Company of such request, a list of
similar form and content, which list shall be as of a date not more than fifteen (15) days before
the date such list is furnished.




2.06 Transfer and Exchange.



Subject to Sections 2.15 and 2.16 hereof, when Securities are presented to the Registrar with a
request to register their transfer or to exchange them for an equal principal amount of Securities
of other authorized denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transaction are met. To permit registrations of transfer and
exchanges, the Trustee shall authenticate Securities at the Registrar’s request or upon the
Trustee’s receipt of a Company Order therefor. The Company or the Trustee, as the case may be,
shall not be required to register the transfer of or exchange any Security (i) for a period of
fifteen (15) days before selecting, pursuant to Section 3.03, Securities to be redeemed or (ii)
during a period beginning at the opening of business fifteen (15) days before the mailing of a
notice of redemption, pursuant to Section 3.04, of the Securities selected for Redemption and
ending at the close of business on the day of such mailing or (iii) that has been selected for
Redemption or for which a Repurchase Notice has been delivered, and not withdrawn, in accordance
with this Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or
repurchased in part.



No service charge shall be made for any transfer, exchange or conversion of Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge that may be imposed in connection with any transfer, exchange or conversion of Securities,
other than exchanges pursuant to Sections 2.10, 9.05 or 10.02, or Article III, not involving any
transfer.




10









 





2.07 Replacement Securities.



If the Holder of a Security claims that the Security has been mutilated, lost, destroyed or
wrongfully taken, the Company shall, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, issue and the Trustee, upon receipt of a
Company Order therefor, shall authenticate a replacement Security upon surrender to the Trustee of
the mutilated Security, or upon delivery to the Trustee of evidence of the loss, destruction or
theft of the Security satisfactory to the Trustee and the Company. In the case of a lost,
destroyed or wrongfully taken Security, the Trustee or the Company may require the Holder of such
Security to deliver, prior to the issuance and authentication of a replacement Security, an
indemnity bond that is reasonably satisfactory to the Trustee and the Company to indemnify and hold
harmless the Company, the Trustee and any Security Agent from any loss which any of them may suffer
if such Security is replaced. The Company and the Trustee may charge such Holder for their
respective expenses (including taxes or governmental charges incurred) in replacing a Security.



In case any such mutilated, lost, destroyed or wrongfully taken Security has become or is about to
become due and payable (whether at maturity, upon Redemption, on an Option Repurchase Date with
respect to a Repurchase at Holder’s Option or on a Fundamental Change Repurchase Date with respect
to a Repurchase Upon Fundamental Change), the Company in its discretion may, instead of issuing a
new Security, pay such Security when due.



Every replacement Security is an additional obligation of the Company only as provided in Section
2.08.




2.08 Outstanding Securities.



Securities outstanding at any time are all the Securities authenticated by the Trustee except for
those converted, those cancelled by it, those delivered to it for cancellation and those described
in this Section 2.08 as not outstanding. Except to the extent provided in Section 2.09, a Security
does not cease to be outstanding because the Company or one of its Subsidiaries or Affiliates holds
the Security.



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



If the Paying Agent (other than the Company) holds, on an Option Repurchase Date, Redemption Date,
Fundamental Change Repurchase Date or Maturity Date, money sufficient to pay the aggregate Option
Repurchase Price, Redemption Price, Fundamental Change Repurchase Price or principal amount, as the
case may be, with respect to all Securities to be redeemed, repurchased or paid upon Repurchase at
Holder’s Option, Redemption, Repurchase Upon Fundamental Change or maturity, as the case may be, in
each case plus, if applicable, accrued and unpaid interest and Additional Interest, if any, payable
as herein provided upon Repurchase at Holder’s Option, Redemption, Repurchase Upon Fundamental
Change or maturity, then (unless there shall be a Default in the payment of such aggregate Option
Repurchase Price, Redemption Price, Fundamental Change Repurchase Price or principal amount, or of
such accrued and unpaid interest or Additional Interest) on and after such date such Securities
shall be deemed to be no longer outstanding, interest on such Securities shall cease to accrue, and
such Securities shall be deemed paid whether or not such Securities are delivered to the Paying
Agent.




11









 




Thereafter, all rights of the Holders of such Securities shall terminate with respect to such
Securities, other than the right to receive the Option Repurchase Price, Redemption Price,
Fundamental Change Repurchase Price or principal amount, as the case may be, plus, if applicable,
such accrued and unpaid interest and Additional Interest, if any, in accordance with this
Indenture.



If a Security is converted in accordance with Article X, then, from and after the time of such
conversion on the Conversion Date, such Security shall cease to be outstanding, and interest, if
any, shall cease to accrue on such Security.




2.09 Securities Held by the Company or an Affiliate.



In determining whether the Holders of the required aggregate principal amount of Securities have
concurred in any request, demand, direction, waiver or consent, Securities owned by the Company or
any of its Subsidiaries or Affiliates shall be considered not to be outstanding, except that, for
the purposes of determining whether a Responsible Officer of the Trustee shall be protected in
relying on any such request, demand, direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so considered. Securities so owned which have been pledged in
good faith may be considered to be outstanding for purposes of this Section 2.09 if the pledgee
establishes, to the satisfaction of the Trustee, the pledgee’s right so to concur with respect to
such Securities and that the pledgee is not, and is not acting at the direction or on behalf of,
the Company, any other obligor on the Securities, an Affiliate of the Company or an Affiliate of
any such other obligor. In the event of a dispute as to whether the pledgee has established the
foregoing, the Trustee may rely on the advice of counsel or on an Officer’s Certificate.




2.10 Temporary Securities.



Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall,
upon its receipt of a Company Order therefor, authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for
temporary Securities. Until so exchanged, each temporary Security shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities, and such temporary
Security shall be exchangeable for definitive Securities in accordance with the terms of this
Indenture.




2.11 Cancellation.



The Company at any time may deliver Securities (which the Company may have duly acquired in any
manner whatsoever) to the Trustee for cancellation. The Registrar, Paying Agent and Conversion
Agent shall forward to the Trustee any Securities surrendered to them for Redemption, Repurchase at
Holder’s Option, Repurchase Upon Fundamental Change, transfer, exchange, payment or conversion.
The Trustee shall promptly cancel all Securities surrendered for transfer, exchange, payment
(whether at maturity, upon Redemption, upon a Repurchase at Holder’s Option, or upon a Repurchase
Upon Fundamental Change), conversion or cancellation in accordance with its customary procedures.
The Company may not issue new Securities to




12









 







replace Securities that it has paid or delivered to the Trustee for cancellation or that any
Securityholder has converted pursuant to Article X. All cancelled Securities held by the Trustee
shall be destroyed, and certification of their destruction shall be delivered by the Trustee to the
Company.




2.12 Defaulted Interest.



If and to the extent the Company defaults in a payment of interest on the Securities, the Company
shall pay in cash the defaulted interest in any lawful manner plus, to the extent not prohibited by
applicable statute or case law, interest on such defaulted interest at the rate provided in the
Securities. The Company may pay the defaulted interest (plus interest on such defaulted interest)
to the persons who are Securityholders on a subsequent special record date. The Company shall fix
such record date and the related payment date. At least fifteen (15) days before such record date,
the Company shall mail to Securityholders, with a copy to the Trustee, a notice that states the
record date, payment date and amount of interest to be paid, and the Company shall cause any such
defaulted interest (plus interest on such defaulted interest) to be paid to Holders of record of
each applicable Security at 5:00 p.m., New York City time, on such record date. Upon such due
payment in full, such defaulted interest (plus interest on such defaulted interest) shall no longer
be payable pursuant to this Section 2.12.




2.13 CUSIP Numbers.



The Company in issuing the Securities may use one or more “CUSIP” numbers, and, if so, the Trustee
shall use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; provided
further, that reliance may be placed only on the other identification numbers printed on the
Securities, and the effectiveness of any such notice shall not be affected by any defect in, or
omission of, such CUSIP numbers. The Company shall promptly notify the Trustee of any change in
the CUSIP numbers.




2.14 Deposit of Moneys and Property.



Prior to 11:00 A.M., New York City time, on each interest payment date, Maturity Date, Redemption
Date, Option Repurchase Date or Fundamental Change Repurchase Date, the Company shall deposit with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
in accordance with Section 2.04) money, in funds immediately available on such date, and, if
applicable as provided herein, such other consideration, sufficient to make cash payments and
deliver such other consideration, if any, due on such interest payment date, Maturity Date,
Redemption Date, Option Repurchase Date or Fundamental Change Repurchase Date, as the case may be,
in a timely manner and which permits the Paying Agent to remit payment to the Holders on such
interest payment date, Maturity Date, Redemption Date, Option Repurchase Date or Fundamental Change
Repurchase Date, as the case may be. If, pursuant to Section 4.01 hereof and paragraph 3 of the
Securities, payment shall be made to Holders by check, then such deposit shall be made in such
manner as will permit such payment to be made by check drawn upon a bank in the city in which the
Paying Agent’s principal office, or the Corporate Trust Office of the Trustee, shall be located.




13









 








2.15 Book-Entry Provisions for Global Securities.




     (A) The Global Securities initially shall (i) be registered in the name of the Depositary or
the nominee of the Depositary, (ii) be delivered to the Trustee as custodian for the Depositary and
(iii) bear legends as set forth in Section 2.17.


Members of, or participants in, the Depositary (“Participants”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee as its custodian, or under the 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 the
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 Participants, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.




     (B) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
the Depositary, its successors or their respective nominees. In addition, Physical Securities
shall be transferred to all beneficial owners, as identified by the Depositary, in exchange for
their beneficial interests in Global Securities, only if (i) the Depositary notifies the Company
that the Depositary is unwilling or unable to continue as depositary for any Global Security (or
the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act)
and a successor Depositary is not appointed by the Company within ninety (90) days of such notice
or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Holder to issue Physical Securities.



     (C) In connection with the transfer of a Global Security in its entirety to beneficial owners
pursuant to Section 2.15(B), such Global Security shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in such Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.



     (D) Any Physical Security constituting a Restricted Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.15(B) shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.



     (E) The Holder of any Global Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Securities.



2.16 Special Transfer Provisions.




     (A) Restrictions on Transfer and Exchange of Global Securities. Notwithstanding any other
provisions of this Indenture, but except as provided in Section 2.15(B), a Global Security may not
be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the



14









 







Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.



     (B) Private Placement Legend. Upon the transfer, exchange or replacement of Securities not
bearing the Private Placement Legend, the Registrar or co-Registrar shall deliver Securities that
do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall deliver only Securities
that bear the Private Placement Legend unless (i) the requested transfer is after the Resale
Restriction Termination Date, (ii) there is delivered to the Trustee and the Company an Opinion of
Counsel (upon which Opinion of Counsel the Trustee may conclusively rely) reasonably satisfactory
to the Company and the Trustee and addressed to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Security has been sold pursuant
to an effective registration statement under the Securities Act and the Holder selling such
Securities has delivered to the Registrar or co-Registrar a notice in the form of Exhibit C
hereto. Upon the effectiveness, under the Securities Act, of the “Shelf Registration Statement”
(as defined in the Registration Rights Agreement), the Company shall deliver to the Trustee a
notice of effectiveness, a Global Security or Global Securities, which shall not bear the Private
Placement Legend, an authentication order in accordance with Section 2.02 and an Opinion of Counsel
in the form of Exhibit D hereto, and, if required by the Depositary, the Company shall
deliver to the Depositary a letter of representations in a form reasonably acceptable to the
Depositary. Upon the effectiveness of any post-effective amendment to the “Shelf Registration
Statement” (as defined in the Registration Rights Agreement) and upon the effectiveness, under the
Securities Act, of any “Subsequent Shelf Registration Statement” (as defined in the Registration
Rights Agreement), the Company shall deliver to the Trustee a notice of effectiveness and an
Opinion of Counsel in the form of Exhibit D hereto. Upon any sale, pursuant to a Shelf
Registration Statement, of a beneficial interest in a Global Security that theretofore constituted
a Restricted Security and delivery of appropriate evidence thereof to the Trustee, and upon any
sale or transfer of a beneficial interest in connection with which the Private Placement Legend
will be removed in accordance with this Indenture, the Trustee shall increase the principal amount
of the Global Security that does not constitute a Restricted Security by the principal amount of
such sale or transfer and likewise reduce the principal amount of the Global Security that does
constitute a Restricted Security.



     (C) General. By its acceptance of any Security bearing the Private Placement Legend, each
Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in
this Indenture and in the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture and as permitted by applicable law.


The Registrar shall retain copies of all letters, notices and other written communications received
pursuant to Section 2.15 or this Section 2.16. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any reasonable time
during normal hours of operation of the Registrar upon the giving of reasonable written notice to
the Registrar.





15










 







     (D) Transfers of Securities Held by Affiliates. Any certificate (i) evidencing a
Security that has been transferred to an Affiliate within two (2) years after the Issue Date, as
evidenced by a notation on the assignment form for such transfer or in the representation letter
delivered in respect thereof, or (ii) evidencing a Security that has been acquired from an
Affiliate (other than by an Affiliate) in a transaction or a chain of transactions not involving
any public offering, shall, until two (2) years after the last date on which the Company or any
Affiliate was an owner of such Security (or such longer period of time as may be required under the
Securities Act or applicable state securities laws), in each case, bear the Private Placement
Legend, unless otherwise agreed by the Company (with written notice thereof to the Trustee).



2.17 Restrictive Legends.



Each Global Security and Physical Security that constitutes a Restricted Security shall bear the
legend (the “Private Placement Legend”) set forth in Exhibit B-1 on the face thereof until
after the second anniversary of the later of (i) the Issue Date and (ii) the last date on which the
Company or any Affiliate was the owner of such Security (or any predecessor security) (or such
shorter period of time as permitted by Rule 144(k) promulgated under the Securities Act or any
successor provision thereunder) (or such longer period of time as may be required under the
Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless
otherwise agreed between the Company and the Holder thereof) (such date, the “Resale Restriction
Termination Date”).



Each Global Security shall also bear the legend set forth in Exhibit B-2.



2.18 Ranking.



The indebtedness of the Company arising under or in connection with this Indenture and every
outstanding Security issued under this Indenture from time to time constitutes and will constitute
a senior unsecured obligation of the Company, ranking equally with other existing and future senior
unsecured indebtedness of the Company and ranking senior to any existing or future indebtedness of
the Company that, by its terms, is made subordinate to senior indebtedness of the Company.




III. REDEMPTION AND REPURCHASE




3.01 Right of Redemption.




     (A) Redemption of the Securities, as permitted by any provision of this Indenture, shall be
made:



     (i) with respect to a repurchase at the Company’s option, in accordance with paragraphs 6 and
7 of the Securities (a “Redemption”),



     (ii) with respect to a repurchase at the Holder’s option, in accordance with paragraph 8 of
the Securities (a “Repurchase at Holder’s Option”) and



     (iii) with respect to any repurchase upon a Fundamental Change, in accordance with paragraph 9
of the Securities (a “Repurchase Upon Fundamental Change”),



16









 




in each case in accordance with the applicable provisions of this Article III.




     (B) The Company will comply with all federal and state securities laws, and any applicable
laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers
to buy Securities pursuant to this Article III.



     (C) The Company shall not have the right to redeem any Securities prior to June 6, 2013. The
Company shall have the right, at the Company’s option, at any time, and from time to time, on a
Redemption Date on or after June 6, 2013, to redeem all or any part of the Securities at a price
payable in cash equal to the Redemption Price plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, the Redemption Date.



     (D) Securities in denominations larger than $1,000 principal amount may be redeemed in part
but only in integral multiples of $1,000 principal amount.



3.02 Notices to Trustee.



If the Company elects to redeem Securities pursuant to paragraph 6 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the applicable provision of this Indenture
pursuant to which the Redemption is to be made and the aggregate principal amount of Securities to
be redeemed, which notice shall be provided to the Trustee by the Company at least fifteen (15)
days prior to the mailing, in accordance with Section 3.04, of the notice of Redemption (unless a
shorter notice period shall be satisfactory to the Trustee).




3.03 Selection of Securities to be Redeemed.



If the Company has elected to redeem less than all the Securities pursuant to paragraph 6 of the
Securities, the Trustee shall, within five (5) Business Days after receiving the notice specified
in Section 3.02, select the Securities to be redeemed by lot, on a pro rata basis or in accordance
with any other method the Trustee considers fair and appropriate. The Trustee shall make such
selection from Securities then outstanding and not already to be redeemed by virtue of having been
previously called for Redemption. The Trustee may select for Redemption portions of the principal
amount of Securities that have denominations larger than $1,000 principal amount. Securities and
portions of them the Trustee selects for Redemption shall be in amounts of $1,000 principal amount
or integral multiples of $1,000 principal amount. The Trustee shall promptly notify the Company in
writing of the Securities selected for Redemption and the principal amount thereof to be redeemed.



The Registrar need not register the transfer of or exchange any Securities that have been selected
for Redemption, except the unredeemed portion of the Securities being redeemed in part. The
Registrar need not issue, authenticate, register the transfer of or exchange any Security for a
period of fifteen (15) days before selecting, pursuant to this Section 3.03, Securities to be
redeemed.



3.04 Notice of Redemption.



At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the Company
shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each Holder whose
Securities are to be redeemed, at the address of such Holder appearing in the security register.
If such Securities are held in book-entry form through the Depositary, such




17









 







notice of Redemption shall be transmitted electronically in compliance with applicable procedures
of the Depositary.



The notice shall identify the Securities and the aggregate principal amount thereof to be redeemed
pursuant to the Redemption and shall state:




     (i) the Redemption Date;



     (ii) the Redemption Price plus accrued and unpaid interest and Additional Interest, if any,
to, but excluding, the Redemption Date;



     (iii) the Conversion Rate and the Conversion Price;



     (iv) the names and addresses of the Paying Agent and the Conversion Agent;



     (v) that the right to convert the Securities called for Redemption will terminate at the close
of business on the Business Day immediately preceding the Redemption Date, unless there shall be a
Default in the payment of the Redemption Price or accrued and unpaid interest or Additional
Interest, if any, payable as herein provided upon Redemption;



     (vi) that Holders who want to convert Securities must satisfy the requirements of Article X;



     (vii) the paragraph of the Securities pursuant to which the Securities are to be redeemed;



     (viii) that Securities called for Redemption must be surrendered to the Paying Agent to
collect the Redemption Price plus accrued and unpaid interest and Additional Interest, if any,
payable as herein provided upon Redemption;



     (ix) that, unless there shall be a Default in the payment of the Redemption Price or accrued
and unpaid interest or Additional Interest, if any, payable as herein provided upon Redemption,
interest on Securities called for Redemption ceases to accrue on and after the Redemption Date, and
all rights of the Holders of such Securities shall terminate on and after the Redemption Date,
other than the right to receive, upon surrender of such Securities and in accordance with this
Indenture, the Redemption Price and such accrued and unpaid interest and Additional Interest; and



     (x) the CUSIP number or numbers, as the case may be, of the Securities to be redeemed pursuant
to the Redemption.


The right, pursuant to Article X, to convert Securities called for Redemption shall terminate at
the close of business on the Business Day immediately preceding the Redemption Date, unless there
shall be a Default in the payment of the Redemption Price or accrued and unpaid interest or
Additional Interest, if any, payable as herein provided upon Redemption.




18









 







At the Company’s request, upon reasonable prior notice, the Trustee shall mail or electronically
transmit the notice of Redemption in the Company’s name and at the Company’s expense; provided,
however, that the form and content of such notice shall be prepared by the Company.



3.05 Effect of Notice of Redemption.



Once notice of Redemption is mailed or electronically transmitted, Securities called for Redemption
become due and payable on the Redemption Date at the Redemption Price plus accrued and unpaid
interest and Additional Interest, if any, to, but excluding, the Redemption Date, and, on and after
such Redemption Date (unless there shall be a Default in the payment of the Redemption Price or
such accrued and unpaid interest or Additional Interest), such Securities shall cease to bear
interest, and all rights of the Holders of such Securities shall terminate, other than the right to
receive, upon surrender of such Securities and in accordance with the next sentence, the Redemption
Price and such accrued and unpaid interest and Additional Interest, if any. Upon surrender to the
Paying Agent of a Security subject to Redemption, such Security shall be paid, to the Holder
surrendering such Security, at the Redemption Price plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, the Redemption Date, unless the Redemption Date is an interest
payment date, in which case such accrued and unpaid interest and Additional Interest, if any, will
instead be paid on such interest payment date to the Holder of record of such Security at the close
of business on the record date for such interest payment.



If any Security shall not be fully and duly paid upon surrender thereof for Redemption, the
principal of, and accrued and unpaid interest and Additional Interest, if any, on, such Security
shall, until paid, bear interest from, and including, the Redemption Date at the rate borne by such
Security on the principal amount of such Security, and such Security shall continue to be
convertible pursuant to Article X.



3.06 Deposit of Redemption Price.



Prior to 11:00 A.M., New York City time on the Redemption Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in
accordance with Section 2.04) money, in funds immediately available on the Redemption Date,
sufficient to pay the Redemption Price, plus accrued and unpaid interest and Additional Interest,
if any, to, but excluding, the Redemption Date, of all Securities to be redeemed on that date. The
Paying Agent shall return to the Company, as soon as practicable, any money not required for that
purpose.



3.07 Securities Redeemed in Part.



Any Security to be selected for Redemption only in part shall be delivered pursuant to Section 3.05
(with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or its attorney duly authorized in writing). Upon receipt of such Security together with any such
required endorsements or transfer instruments, the Company shall execute, and the Trustee shall,
upon its receipt of a Company Order therefor, authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not submitted for Redemption.




19









 







If any Security selected for partial Redemption is converted in part, the principal of such
Security subject to Redemption shall be reduced by the principal amount of such Security that is
converted.




3.08 Repurchase of Securities at Option of the Holder.




     (A) At the option of the Holder thereof, Securities (or portions thereof that are integral
multiples of $1,000 in principal amount) shall be repurchased by the Company pursuant to paragraph
8 of the Securities on May 31, 2010, May 31, 2016 and May 31, 2021 (each, an “Option Repurchase
Date”), at a repurchase price, payable in cash, equal to one hundred percent (100%) of the
principal amount of the Securities (or such portions thereof) to be so repurchased (the “Option
Repurchase Price”), plus accrued and unpaid interest and Additional Interest, if any, to, but
excluding, the applicable Option Repurchase Date, upon:



     (i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Option Repurchase Notice (as defined below), by
such Holder, at any time from 9:00 a.m., New York City time, on the date that is twenty (20)
Business Days prior to the applicable Option Repurchase Date until 5:00 p.m., New York City time,
on the third (3rd) Business Day immediately preceding the applicable Option Repurchase Date, of a
Repurchase Notice, in the form set forth in the Securities (or any other form of written notice
delivered in good faith and substantially similar thereto), duly completed and signed, with
appropriate signature guarantee, stating:



     (a) the certificate number(s) of the Securities which the Holder will deliver to be
repurchased, if such Securities are in the form of Physical Securities;



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



     (c) that such principal amount of Securities are to be repurchased as of the applicable Option
Repurchase Date pursuant to the terms and conditions specified in paragraph 8 of the Securities and
in this Indenture; and



     (ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Option Repurchase Notice, at any time after
delivery of such Repurchase Notice, of such Securities (such Securities to conform in all material
respects to the description thereof in the related Option Repurchase Notice), together with all
necessary endorsements, such delivery being a condition to receipt by the Holder of the Option
Repurchase Price therefor plus accrued and unpaid interest and Additional Interest, if any, payable
as herein provided upon Repurchase at Holder’s Option;


If such Securities are held in book-entry form through the Depositary, the Repurchase Notice shall
comply with applicable procedures of the Depositary.



Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such
Paying Agent, such Holder shall be entitled, upon request, to receive from the Company or such
Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.




20









 







Notwithstanding anything herein to the contrary, any Holder that has delivered the Repurchase
Notice contemplated by this Section 3.08(A) to the Company (if it is acting as its own Paying
Agent) or to a Paying Agent designated by the Company for such purpose in the Option Repurchase
Notice shall have the right to withdraw such Repurchase Notice by delivery, at any time prior to
5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable
Option Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own
Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section
3.08(B)(vii).



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




     (B) The Company shall give notice (the “Option Repurchase Notice”) on a date not less than
twenty (20) Business Days prior to each Option Repurchase Date to all Holders at their addresses
shown in the register of the Registrar and to beneficial owners as required by applicable law or by
electronic transmission for Securities that are held in book-entry form through the Depositary.
Such notice shall state:



     (i) the Option Repurchase Price plus accrued and unpaid interest and Additional Interest, if
any, to, but excluding, such Option Repurchase Date and the Conversion Rate;



     (ii) the names and addresses of the Paying Agent and the Conversion Agent;



     (iii) that Securities with respect to which a Repurchase Notice is given by a Holder may be
converted pursuant to Article X only if such Repurchase Notice has been withdrawn in accordance
with this Section 3.08 or if there shall be a Default in the payment of such Option Repurchase
Price or in accrued and unpaid interest or Additional Interest, if any, payable as herein provided
upon Repurchase at Holder’s Option;



     (iv) that Securities must be surrendered (together with any necessary endorsements) to the
Paying Agent to collect payment of the Option Repurchase Price plus accrued and unpaid interest and
Additional Interest, if any, payable as herein provided upon Repurchase at Holder’s Option;



     (v) that the Option Repurchase Price, plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, such Option Repurchase Date, for any Security as to which a
Repurchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in
no event more than three (3) Business Days, following the later of such Option Repurchase Date or
the time of delivery of the Security as described in clause (iv) above;



     (vi) the procedures the Holder must follow to exercise rights under this Section 3.08
(including the name and address of the Paying Agent) and a brief description of those rights;



     (vii) that a Holder will be entitled to withdraw its election in the Repurchase Notice if
the Company (if acting as its own Paying Agent) or the Paying Agent receives, at any time
prior to 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the
applicable Option Repurchase Date, or such longer period as may be required by law, a letter or
telegram, telex or facsimile transmission (receipt of which is confirmed and



21









 




promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities repurchased by the Company on such
Option Repurchase Date pursuant to a Repurchase at Holder’s Option, (III) the certificate number of
such Securities to be so withdrawn (if such Securities are in the form of Physical Securities),
(IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be
$1,000 or an integral multiple thereof and (V) the principal amount, if any, of the Securities of
such Holder that remain subject to the Repurchase Notice delivered by such Holder in accordance
with this Section 3.08, which amount must be $1,000 or an integral multiple thereof;




     (viii) that, on and after the applicable Option Repurchase Date (unless there shall be a
Default in the payment of such Option Repurchase Price or such accrued and unpaid interest or
Additional Interest), interest on Securities subject to Repurchase at Holder’s Option will cease to
accrue, and all rights of the Holders of such Securities shall terminate, other than the right to
receive, upon surrender of such Securities and in accordance with this Section 3.08, the Option
Repurchase Price and such accrued and unpaid interest and Additional Interest; and



     (ix) the CUSIP number or numbers, as the case may be, of the Securities.


At the Company’s request, upon reasonable prior notice, the Trustee shall mail or electronically
transmit such Option Repurchase Notice in the Company’s name and at the Company’s expense;
provided, however, that the form and content of such Option Repurchase Notice shall be prepared by
the Company.



No failure of the Company to give an Option Repurchase Notice shall limit any Holder’s right
pursuant hereto to exercise its rights to require the Company to purchase such Holder’s Securities
pursuant to a Repurchase at Holder’s Option.




     (C) Subject to the provisions of this Section 3.08, the Company shall pay, or cause to be
paid, the Option Repurchase Price, plus accrued and unpaid interest and Additional Interest, if
any, to, but excluding, the applicable Option Repurchase Date, with respect to each Security
subject to Repurchase at Holder’s Option to the Holder of record thereof as promptly as
practicable, but in no event more than three (3) Business Days, following the later of the
applicable Option Repurchase Date and the time such Security (together with all necessary
endorsements) is surrendered to the Paying Agent.



     (D) Prior to 11:00 A.M., New York City time on the applicable Option Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available
on the applicable Option Repurchase Date, sufficient to pay the Option Repurchase Price, plus
accrued and unpaid interest and Additional Interest, if any, to, but excluding, such Option
Repurchase Date, of all of the Securities that are to be repurchased by the Company on such Option
Repurchase Date pursuant to a Repurchase at Holder’s Option. The Paying Agent shall return to the
Company, as soon as practicable, any money not required for that purpose.



     (E) Once the Repurchase Notice has been duly delivered in accordance with this Section 3.08,
the Securities to be repurchased pursuant to the Repurchase at Holder’s Option



22









 




shall, on the applicable Option Repurchase Date, become due and payable at the Option
Repurchase Price (plus accrued and unpaid interest and Additional Interest, if any, to, but
excluding, such Option Repurchase Date) applicable thereto, and, on and after such date (unless
there shall be a Default in the payment of the Option Repurchase Price or such accrued and unpaid
interest or Additional Interest), such Securities shall cease to bear interest, and all rights of
the Holders of such Securities shall terminate, other than the right to receive, in accordance with
this Section 3.08, the Option Repurchase Price and such accrued and unpaid interest and Additional
Interest.




     (F) Securities with respect to which a Repurchase Notice has been duly delivered in accordance
with this Section 3.08 may be converted pursuant to Article X, if otherwise convertible in
accordance with Article X, only if such Repurchase Notice has been withdrawn in accordance with
this Section 3.08 or if there shall be a Default in the payment of the Option Repurchase Price or
in the accrued and unpaid interest or Additional Interest, if any, payable as herein provided upon
Repurchase at Holder’s Option.



     (G) If any Security shall not be paid upon surrender thereof for Repurchase at Holder’s
Option, the principal of, and accrued and unpaid interest and Additional Interest on, such Security
shall, until paid, bear interest from, and including, the applicable Option Repurchase Date at the
rate borne by such Security on the principal amount of such Security, and such Security shall
continue to be convertible pursuant to Article X.



     (H) Any Security which is to be submitted for Repurchase at Holder’s Option only in part shall
be delivered pursuant to this Section 3.08 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not submitted for Repurchase at Holder’s Option.



     (I) Notwithstanding anything herein to the contrary, if the option granted to Holders to
require the repurchase of the Securities on the applicable Option Repurchase Date is determined to
constitute a tender offer, the Company shall comply with all applicable tender offer rules under
the Exchange Act, including Rule 13e-4 and Regulation 14E, and with all other applicable laws, and
will file a Schedule TO or any other schedules required under the Exchange Act or any other
applicable laws.



3.09 Repurchase at Option of Holder Upon a Fundamental Change.




     (A) In the event any Fundamental Change (as defined below) shall occur, each Holder of
Securities shall have the right (the “Fundamental Change Repurchase Right”), at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof
that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the
“Fundamental Change Repurchase Date”), which Fundamental Change Repurchase Date shall be no later
than thirty (30) days after the date the Fundamental Change



23









 




Notice (as defined below) is mailed in accordance with Section 3.09(B), at a price, payable in
cash, equal to one hundred percent (100%) of the principal amount of the Securities (or portions
thereof) to be so repurchased (the “Fundamental Change Repurchase Price”), plus accrued and unpaid
interest and Additional Interest, if any, to, but excluding, the Fundamental Change Repurchase
Date, upon:




     (i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice (as defined below), no
later than 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the
Fundamental Change Repurchase Date, of a Repurchase Notice, in the form set forth in the Securities
(or any other form of written notice delivered in good faith and substantially similar thereto),
duly completed and signed, with appropriate signature guarantee, stating:



     (a) the certificate number(s) of the Securities which the Holder will deliver to be
repurchased, if such Securities are in the form of Physical Securities;



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



     (c) that such principal amount of Securities are to be repurchased pursuant to the terms and
conditions specified in paragraph 9 of the Securities and in this Indenture; and



     (ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent
designated by the Company for such purpose in the Fundamental Change Notice, at any time after the
delivery of such Repurchase Notice, of such Securities (such Securities to conform in all material
respects to the description thereof in the related Repurchase Notice), together with all necessary
endorsements, with respect to which the Fundamental Change Repurchase Right is being exercised,
such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor plus accrued and unpaid interest and Additional Interest, if any, payable as herein
provided upon Repurchase Upon Fundamental Change.


If such Securities are held in book-entry form through the Depositary, the Repurchase Notice shall
comply with applicable procedures of the Depositary.



Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such
Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as
the case may be, a nontransferable receipt of deposit evidencing such delivery.



Notwithstanding anything herein to the contrary, any Holder that has delivered the Repurchase
Notice contemplated by this Section 3.09(A) to the Company (if it is acting as its own Paying
Agent) or to a Paying Agent designated by the Company for such purpose in the Fundamental Change
Notice shall have the right to withdraw such Repurchase Notice by delivery, at any time prior to
5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the
Fundamental Change Repurchase Date, of a written notice of withdrawal to the Company (if




24









 







acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information
specified in Section 3.09(B)(xi) .



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




     (B) Within twenty (20) days after the occurrence of a Fundamental Change, the Company shall
mail or electronically transmit, or cause to be mailed or electronically transmitted, to all
Holders of record of the Securities at their addresses shown in the register of the Registrar, and
to beneficial owners as required by applicable law, a notice (the “Fundamental Change Notice”) of
the occurrence of such Fundamental Change and the Fundamental Change Repurchase Right arising as a
result thereof. The Company shall deliver a copy of the Fundamental Change Notice to the Trustee
and shall publicly announce, through a reputable national newswire service, the occurrence of each
Fundamental Change.


Each Fundamental Change Notice shall state:




     (i) the events causing the Fundamental Change;



     (ii) the date of such Fundamental Change;



     (iii) the Fundamental Change Repurchase Date;



     (iv) the date by which the Fundamental Change Repurchase Right must be exercised;



     (v) the Fundamental Change Repurchase Price plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, the Fundamental Change Repurchase Date;



     (vi) the names and addresses of the Paying Agent and the Conversion Agent;



     (vii) a description of the procedures that a Holder must follow to exercise the Fundamental
Change Repurchase Right;



     (viii) that, in order to exercise the Fundamental Change Repurchase Right, the Securities
(together with all necessary endorsements) must be surrendered for payment of the Fundamental
Change Repurchase Price plus accrued and unpaid interest and Additional Interest, if any, payable
as herein provided upon Repurchase Upon Fundamental Change;



     (ix) that the Fundamental Change Repurchase Price, plus accrued and unpaid interest and
Additional Interest, if any, to, but excluding, the Fundamental Change Repurchase Date, for any
Security as to which a Repurchase Notice has been given and not withdrawn will be paid as promptly
as practicable, but in no event more than three (3) Business Days, following the later of such
Fundamental Change Repurchase Date and the time of delivery of the Security (together with all
necessary endorsements) as described in clause (viii) above;



     (x) that, on and after such Fundamental Change Repurchase Date (unless there shall be a
Default in the payment of such Fundamental Change Repurchase Price or such accrued



25









 




and unpaid interest or Additional Interest), interest on Securities subject to Repurchase Upon
Fundamental Change will cease to accrue, and all rights of the Holders of such Securities shall
terminate, other than the right to receive, upon surrender of such Securities (together with all
necessary endorsements), the Fundamental Change Repurchase Price and such accrued and unpaid
interest and Additional Interest;




     (xi) that a Holder will be entitled to withdraw its election in the Repurchase Notice if the
Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to 5:00 p.m., New
York City time, on the third (3rd) Business Day immediately preceding the Fundamental Change
Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or
facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting
forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to
have Securities purchased by the Company on such Fundamental Change Repurchase Date pursuant to a
Repurchase Upon Fundamental Change, (III) the certificate number of such Securities to be so
withdrawn (if such Securities are in the form of Physical Securities), (IV) the principal amount of
the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral
multiple thereof and (V) the principal amount, if any, of the Securities of such Holder that remain
subject to the Repurchase Notice delivered by such Holder in accordance with this Section 3.09,
which amount must be $1,000 or an integral multiple thereof;



     (xii) the Conversion Rate and any adjustments to the Conversion Rate that will result from
such Fundamental Change;



     (xiii) that Securities with respect to which a Repurchase Notice is given by a Holder may be
converted pursuant to Article X only if such Repurchase Notice has been withdrawn in accordance
with this Section 3.09 or if there shall be a Default in the payment of the Fundamental Change
Repurchase Price or in the accrued and unpaid interest or Additional Interest, if any, payable as
herein provided upon Repurchase Upon Fundamental Change; and



     (xiv) the CUSIP number or numbers, as the case may be, of the Securities.


At the Company’s request, upon reasonable prior notice, the Trustee shall mail or electronically
transmit such Fundamental Change Notice in the Company’s name and at the Company’s expense;
provided, however, that the form and content of such Fundamental Change Notice shall be prepared by
the Company.



No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right
pursuant hereto to exercise a Fundamental Change Repurchase Right.




     (C) Subject to the provisions of this Section 3.09, the Company shall pay, or cause to be
paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest and Additional
Interest, if any, to, but excluding, the Fundamental Change Repurchase Date, with respect to each
Security as to which the Fundamental Change Repurchase Right shall have been exercised to the
Holder thereof as promptly as practicable, but in no event more than three (3) Business Days,
following the later of the Fundamental Change Repurchase Date and the time such Security is
surrendered to the Paying Agent.



26









 





     (D) Prior to 11:00 A.M., New York City time, on a Fundamental Change Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available
on the Fundamental Change Repurchase Date, sufficient to pay the Fundamental Change Repurchase
Price, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the
Fundamental Change Repurchase Date, of all of the Securities that are to be repurchased by the
Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental
Change. The Paying Agent shall return to the Company, as soon as practicable, any money not
required for that purpose.



     (E) Once the Fundamental Change Notice and the Repurchase Notice have been duly given in
accordance with this Section 3.09, the Securities to be repurchased pursuant to a Repurchase Upon
Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable at the
Fundamental Change Repurchase Price (plus accrued and unpaid interest and Additional Interest, if
any, to, but excluding, the Fundamental Change Repurchase Date) applicable thereto, and, on and
after such date (unless there shall be a Default in the payment of the Fundamental Change
Repurchase Price or such accrued and unpaid interest or Additional Interest), such Securities shall
cease to bear interest, and all rights of the Holders of such Securities shall terminate, other
than the right to receive, in accordance with this Section 3.09, the Fundamental Change Repurchase
Price and such accrued and unpaid interest and Additional Interest.



     (F) Securities with respect to which a Repurchase Notice has been duly delivered in accordance
with this Section 3.09 may be converted pursuant to Article X, if otherwise convertible in
accordance with Article X, only if such Repurchase Notice has been withdrawn in accordance with
this Section 3.09 or if there shall be a Default in the payment of the Fundamental Change
Repurchase Price or in the accrued and unpaid interest or Additional Interest, if any, payable as
herein provided upon Repurchase Upon Fundamental Change.



     (G) If any Security shall not be paid upon surrender thereof for Repurchase Upon Fundamental
Change, the principal of, and accrued and unpaid interest and Additional Interest on, such Security
shall, until paid, bear interest, payable in cash, from, and including, the Fundamental Change
Repurchase Date at the rate borne by such Security on the principal amount of such Security, and
such Security shall continue to be convertible pursuant to Article X.



     (H) Any Security which is to be submitted for Repurchase Upon Fundamental Change only in part
shall be delivered pursuant to this Section 3.09 (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not duly submitted for Repurchase Upon Fundamental Change.



27









 





     (I) Notwithstanding anything herein to the contrary, if the option granted to Holders to
require the repurchase of the Securities upon the occurrence of a Fundamental Change is determined
to constitute a tender offer, the Company shall comply with all applicable tender offer rules under
the Exchange Act, including Rule 13e-4 and Regulation 14E, and with all other applicable laws, and
will file a Schedule TO or any other schedules required under the Exchange Act or any other
applicable laws.



     (J) As used herein and in the Securities, a “Fundamental Change” shall be deemed to have
occurred upon the occurrence, on or after the Issue Date, of either a “Change in Control” or a
“Termination of Trading.”



     (i) A “Change in Control” shall be deemed to have occurred at such time as:



     (a) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d)
of the Exchange Act), other than the Company, any Subsidiary or any employee benefit plan of the
Company or a Redstone Party, is or becomes the “beneficial owner” (as such term is used in Rule
13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the Voting
Stock of the Company (such an event, an “Acquisition of Voting Control”); or



     (b) there occurs a sale, transfer, lease, conveyance or other disposition of all or
substantially all of the property or assets of the Company to any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the
purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act (such an occurrence, a “Qualifying Asset Sale”); or



     (c) the Company consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company, unless either:



     (1) the persons that “beneficially owned” (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, the shares of the Company’s Voting Stock immediately prior
to such consolidation or merger, “beneficially own,” directly or indirectly, immediately after such
consolidation or merger, shares of the surviving or continuing corporation’s Voting Stock
representing at least a majority of the total voting power of all outstanding classes of the Voting
Stock of the surviving or continuing corporation in substantially the same proportion as such
ownership immediately prior to such consolidation or merger; or



     (2) all of the consideration (other than cash payments for fractional shares or pursuant to
statutory appraisal rights) in such consolidation or merger consists of common stock and any
associated rights traded on a U.S. national securities exchange or quoted on the Nasdaq National
Market (or which will be so traded or quoted when issued or exchanged in connection with such
consolidation or merger), and, as a result of such consolidation or merger, the Securities become
convertible solely into such common stock, associated rights and cash for fractional shares (such a
consolidation or merger that does not satisfy the conditions set forth in the immediately preceding
clauses (1) or (2), a “Qualifying Business Combination”); or



28









 





     (d) the following persons cease for any reason to constitute a majority of the Company’s Board
of Directors:



     (1) individuals who on the Issue Date constituted the Company’s Board of Directors; and



     (2) any new directors whose election to the Company’s Board of Directors or whose nomination
for election by the Company’s stockholders was approved by at least a majority of the directors of
the Company then still in office either who were directors of the Company on the Issue Date or
whose election or nomination for election was previously so approved; or



     (e) the Company is liquidated or dissolved or the holders of the Company’s Capital Stock
approve any plan or proposal for the liquidation or dissolution of the Company.



     (ii) A “Termination of Trading” shall be deemed to occur if the Common Stock of the Company
(or other common stock into which the Securities are then convertible) is neither listed for
trading on a U.S. national securities exchange nor quoted on the Nasdaq National Market.



3.10 Conversion Arrangement on Call for Redemption.



In connection with a Redemption of Securities, the Company may arrange, in lieu of Redemption, for
the purchase and conversion of any Securities called for Redemption by an agreement with one or
more investment banks or other purchasers to purchase all or a portion of such Securities by
paying, on or before 11:00 A.M., New York City time, on the Redemption Date, to the Paying Agent in
trust for the Holders whose Securities are to be so purchased, an amount of money, in funds
immediately available on the Redemption Date, that, together with any amounts deposited with the
Paying Agent by the Company for Redemption of such Securities, is not less than the aggregate
Redemption Price, together with accrued and unpaid interest and Additional Interest, if any, to,
but excluding, the Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this Article III, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued and unpaid interest and Additional Interest, if any, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers, but
no such agreement shall relieve the Company of its obligation to pay such Redemption Price or such
accrued and unpaid interest or Additional Interest, if any. If such an agreement is entered into,
any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such
Holders and (notwithstanding anything to the contrary contained in Article X) surrendered by such
purchasers for conversion, all as of immediately prior to the close of business on the Redemption
Date, subject to payment of the above amount as aforesaid. The Paying Agent shall hold and pay to
the Holders whose Securities are selected for Redemption any such amount paid to it for purchase
and conversion in the same manner as it would moneys deposited with it by the Company for the
Redemption of Securities. Without the prior written consent of the Trustee and the Paying Agent,
no arrangement between the Company and such purchasers for the purchase




29









 







and conversion of any Securities shall increase or otherwise affect any of the powers, duties,
rights, immunities, responsibilities or obligations of the Trustee or Paying Agent as set forth in
this Indenture, and the Company agrees to indemnify the Trustee and Paying Agent from, and hold
them harmless against, any and all loss, liability or expense arising out of or in connection with
any such arrangement for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses (including counsel fees and expenses) incurred by the
Trustee or Paying Agent in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of their powers, duties, responsibilities or obligations
under this Indenture except to the extent arising from their bad faith, willful misconduct or
negligence.




IV. COVENANTS




4.01 Payment of Securities.



The Company shall pay all amounts due with respect to the Securities on the dates and in the manner
provided in the Securities and this Indenture, which amounts, if payable hereunder in cash, shall
be paid (A) in the case of a Security that is in global form, by wire transfer of immediately
available funds to the account specified by the Holder hereof; or (B) in the case of a Security
that is held other than in global form by a Holder who is the record holder of more than five
million dollars ($5,000,000) aggregate principal amount of Securities, by wire transfer of
immediately available funds to the account specified by such Holder or, if no such account is
specified, or if such Security is held other than in global form by a Holder who is the record
holder of five million dollars ($5,000,000) or less in aggregate principal amount of Securities, by
mailing a check to such Holder’s address shown in the register of the Registrar. All such amounts
shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting as
Paying Agent, the Company has segregated and holds in trust in accordance with Section 2.04) on
that date money sufficient to pay the amount then due with respect to the Securities (unless there
shall be a Default in the payment of such amounts to the respective Holder(s)).



The Company shall pay interest on any overdue amount (including, to the extent permitted by
applicable law, overdue interest) at the rate borne by the Securities.



4.02 Maintenance of Office or Agency.



The Company will maintain, or cause to be maintained, an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be
surrendered for registration of transfer or exchange, payment or conversion and where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of the Trustee.



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




30









 







office or agency for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such other office or
agency.



The Company hereby designates the Corporate Trust Office of the Trustee as an agency of the Company
in accordance with Section 2.03.



4.03 Rule 144A Information and Periodic Reports.




     (A) At any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, provided that any of the Securities or shares of Common Stock issuable upon
conversion thereof shall, at such time, constitute “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and shall, upon request,
provide to any Holder, beneficial owner or prospective purchaser of Securities or shares of Common
Stock issued upon conversion of any Securities, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Securities or shares
of Common Stock pursuant to Rule 144A. The Company shall take such further action as any Holder or
beneficial holder of such Securities or shares of Common Stock may reasonably request in writing to
the extent required from time to time to enable such Holder or beneficial holder to sell its
Securities or shares of Common Stock in accordance with Rule 144A, as such rule may be amended from
time to time.



     (B) The Company shall, in accordance with TIA Section 314(a), deliver to the Trustee, within
fifteen (15) calendar days after the Company files such annual reports, information, documents and
other reports with the SEC, copies of the Company’s annual reports (which shall contain audited
financial statements of the Company) and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which
the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee
any material for which the Company has sought and received confidential treatment by the SEC. In
the event the Company is at any time no longer subject to the reporting requirements of Section 13
or Section 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and to each
Holder, within fifteen (15) calendar days after the date the Company would have been required to
file such reports with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included in reports filed
with the SEC if the Company were subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act, including, with respect to annual information only, a report thereon by
the Company’s certified independent public accountants as such would be required in such reports
filed with the SEC and, in each case, together with a management’s discussion and analysis of
financial condition and results of operations which would be so required. The Company also shall
comply with the other provisions of TIA Section 314(a).



4.04 Compliance Certificate.



The Company shall deliver to the Trustee, within one hundred and twenty (120) calendar days after
the end of each fiscal year of the Company, an Officer’s Certificate stating whether or not the
signatory to such Officer’s Certificate has actual knowledge of any Default or Event of




31









 







Default by the Company in performing any of its obligations under this Indenture or the Securities.
If such signatory does know of any such Default or Event of Default, then such certificate shall
describe such Default or Event of Default and its status.



4.05 Stay, Extension and Usury Laws.



The Company covenants (to the extent that it may lawfully do so) that it will 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 in force, which may
affect the covenants or the performance of this Indenture; and the Company (in each case, to the
extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, 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.



4.06 Corporate Existence.



Subject to Article V, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the corporate existence of each of its
Subsidiaries, in accordance with the respective organizational documents of the Company and of each
Subsidiary, and the rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any Subsidiary, if in the good faith judgment
of the Board of Directors (i) such preservation or existence is not material to the conduct of
business of the Company and (ii) the loss of such right, license or franchise or the dissolution of
such Subsidiary does not have a material adverse impact on the Holders.



4.07 Notice of Default.



Upon the Company’s becoming aware of the occurrence of any Default or Event of Default, the Company
shall give prompt written notice of such Default or Event of Default, and any remedial action
proposed to be taken, to the Trustee.



4.08 Further Instruments and Acts.



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



4.09 Limitation on the Incurrence of Additional Indebtedness.



Neither the Company nor any of its Subsidiaries will incur any Indebtedness except for:




     (i) other unsecured Indebtedness, which by its terms is made expressly subordinate to the
Securities, and which at the time of incurrence has a final maturity no earlier than May 30, 2010;



     (ii) other unsecured Indebtedness that ranks pari passu with or subordinated to the Securities
in an aggregate principal amount not to exceed $40 million at any one time outstanding;



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     (iii) Refinancing Indebtedness;



     (iv) Indebtedness in an amount not to exceed $30 million at any one time outstanding under the
existing credit facility between the Company and Wells Fargo Foothill, Inc. dated March 3, 2004, or
any other facility that renews, refunds, refinances, restructures, replaces, repays or extends such
facility, in each case as such facility may be amended, restated, modified or supplemented from
time to time;



     (v) Indebtedness (including Capitalized Lease Obligations) incurred at the time of, or within
20 days after, the acquisition of any fixed assets for the purpose of financing all or any part of
the acquisition cost thereof;



     (vi) intercompany Indebtedness between the Company and any of its Subsidiaries;



     (vii) Indebtedness under Hedge Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Company or any of its Subsidiaries is exposed in the conduct
of its business or the management of its liabilities and not for speculative purposes;



     (viii) Indebtedness of a Person assumed in the acquisition of the Person (but not incurred in
connection with such acquisition);



     (ix) endorsement of instruments or other payment items for deposit; or



     (x) lease payment obligations incurred in connection with a Sale/Leaseback Transaction.



V. SUCCESSORS




5.01 When Company May Merge, Etc.



The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or
otherwise dispose of all or substantially all of the property or assets of the Company to, another
person, whether in a single transaction or series of related transactions, unless:




     (A) either:



     (i) such transaction or series of related transactions shall be a merger or consolidation
where the Company shall be the surviving corporation; or



     (ii) the surviving, resulting or transferee person both (a) is a corporation organized and
existing under the laws of the United States, any State thereof or the District of Columbia; and
(b) assumes by supplemental indenture all the obligations of the Company under the Securities and
this Indenture; and



     (B) immediately after giving effect to such transaction or series of related transactions, no
Default or Event of Default shall exist.



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The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an
Officer’s Certificate to the foregoing effect and an Opinion of Counsel (which may rely upon (i)
such Officer’s Certificate as to the absence of Defaults and Events of Default and (ii) a
certificate of the appropriate official of the jurisdiction in which any such surviving, resulting
or transferee person is organized, certifying that such person is a corporation organized in such
jurisdiction) stating that the proposed transaction and such supplemental indenture will, upon
consummation of the proposed transaction, comply with this Article V and with Articles IX and X and
that all conditions precedent herein provided to such transaction have been satisfied.



5.02 Successor Substituted.



Upon any consolidation or merger or any sale, transfer, lease, conveyance or other disposition of
all or substantially all of the property or assets of the Company, the successor person formed by
such consolidation or into which the Company is merged or to which such sale, transfer, lease,
conveyance or other disposition is made shall succeed to, and, except in the case of a lease, be
substituted for, and may exercise every right and power of, and shall assume every duty and
obligation of, the Company under this Indenture with the same effect as if such successor had been
named as the Company herein. When the successor assumes all obligations of the Company hereunder,
except in the case of a lease, all obligations of the predecessor shall terminate.




VI. DEFAULTS AND REMEDIES




6.01 Events of Default.



An “Event of Default” occurs if:




     (i) the Company defaults in the payment of the principal of, or premium, if any, on, any
Security when the same becomes due and payable, whether at maturity, upon Redemption, on an Option
Repurchase Date with respect to a Repurchase at Holder’s Option, on a Fundamental Change Repurchase
Date with respect to a Repurchase Upon Fundamental Change or otherwise;



     (ii) the Company defaults in the payment of an installment of interest or Additional Interest
on any Security when due, if such failure continues for thirty (30) days after the date when due;



     (iii) the Company fails to satisfy its conversion obligations upon exercise of a Holder’s
conversion rights pursuant hereto;



     (iv) the Company fails to timely provide a Fundamental Change Notice, or an Option Repurchase
Notice, as required by the provisions of this Indenture;



     (v) the Company fails to comply with any other term, covenant or agreement set forth in the
Securities or this Indenture and such failure continues for the period, and after the notice,
specified below;



     (vi) the Company or any of its Subsidiaries defaults in the payment when due, after the
expiration of any applicable grace period, of principal of, or premium, if any, or




34










 






interest on, Indebtedness of the Company or any Subsidiary for money borrowed, in the
aggregate principal amount then outstanding of ten million dollars ($10,000,000) or more, or the
acceleration of Indebtedness of the Company or any of its Subsidiaries for money borrowed in such
aggregate principal amount or more so that it becomes due and payable prior to the date on which it
would otherwise become due and payable and such default is not cured or waived, or such
acceleration is not rescinded, within sixty (60) days after notice to the Company by the Trustee or
to the Company and the Trustee by Holders of at least twenty five percent (25%) in the aggregate
principal amount of the Securities then outstanding, each in accordance with this Indenture;




     (vii) the Company or any of its Significant Subsidiaries (or, within any period of one (1)
year, each of two (2) or more Subsidiaries that, in the aggregate, would constitute a Significant
Subsidiary of the Company), pursuant to, or within the meaning of, any Bankruptcy Law, insolvency
law, or other similar law now or hereafter in effect or otherwise, either:



     (a) commences a voluntary case,



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



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



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



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



     (a) is for relief against the Company or any of its Significant Subsidiaries in an involuntary
case or proceeding, or adjudicates the Company or any of its Significant Subsidiaries insolvent or
bankrupt,



     (b) appoints a Custodian of the Company or any of its Significant Subsidiaries for all or
substantially all of the property of the Company or any such Significant Subsidiary, as the case
may be, or



     (c) orders the winding up or liquidation of the Company or any of its Significant
Subsidiaries,




and, in the case of each of the foregoing clauses (a), (b) and (c) of this Section
6.01(viii), the order or decree remains unstayed and in effect for at least ninety (90)
consecutive days (provided, that there shall be deemed to occur an Event of Default
pursuant to this Section 6.01(viii) if, during any single period of ninety (90)
consecutive days, there shall have remained unstayed any one or more such orders or
decrees with respect to two (2) or more Subsidiaries that, in the aggregate, would
constitute a Significant Subsidiary of the Company).



35









 




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



A Default under clause (v) above is not an Event of Default until (i) the Trustee notifies the
Company, or the Holders of at least twenty five percent (25%) in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee, of the Default and (ii) the Default
is not cured within thirty (30) days after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that the notice is a “Notice of Default.” If the
Holders of at least twenty five percent (25%) in aggregate principal amount of the outstanding
Securities request the Trustee to give such notice on their behalf, the Trustee shall do so. When
a Default is cured, it ceases to exist for every purpose under this Indenture.



6.02 Acceleration.



If an Event of Default (excluding an Event of Default specified in Section 6.01(vii) or (viii) with
respect to the Company (but including an Event of Default specified in Section 6.01(vii) or (viii)
solely with respect to a Significant Subsidiary of the Company or any group of Subsidiaries that in
the aggregate would constitute a Significant Subsidiary of the Company)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least twenty five percent (25%) in
aggregate principal amount of the Securities then outstanding by notice to the Company and the
Trustee, may declare the Securities to be immediately due and payable in full. Upon such
declaration, the principal of, and any premium and accrued and unpaid interest (including any
Additional Interest) on, all Securities shall be due and payable immediately. If an Event of
Default specified in Section 6.01(vii) or (viii) with respect to the Company (excluding, for
purposes of this sentence, an Event of Default specified in Section 6.01(vii) or (viii) solely with
respect to a Significant Subsidiary of the Company or any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs, the principal of, and
any premium and accrued and unpaid interest (including any Additional Interest) on, all the
Securities shall ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by written notice to the Trustee may rescind or
annul an acceleration and its consequences if (A) the rescission would not conflict with any
governmental or court order or decree, (B) all existing Events of Default, except the nonpayment of
principal, premium, if any, or interest that has become due solely because of the acceleration,
have been cured or waived and (C) all amounts due to the Trustee under Section 7.07 have been paid.



6.03 Other Remedies.



Notwithstanding any other provision of this Indenture, 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 amounts due with respect to the Securities or to enforce the performance of
any provision of the Securities or this Indenture.



The Trustee may maintain a proceeding even if it does not possess any of the Securities 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 accruing upon an Event of Default shall not impair the right or




36









 







remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative.



6.04 Waiver of Past Defaults.



Subject to Sections 6.07 and 9.02, the Holders of a majority in aggregate principal amount of the
Securities then outstanding may, by notice to the Trustee, waive any past Default or Event of
Default and its consequences, other than (A) a Default or Event of Default in the payment of the
principal of, or premium, if any, or interest or Additional Interest on, any Security, or in the
payment of the Redemption Price, the Option Repurchase Price or the Fundamental Change Repurchase
Price (or accrued and unpaid interest or Additional Interest, if any, payable as herein provided,
upon Redemption, Repurchase at Holder’s Option or Repurchase Upon Fundamental Change), (B) a
Default or Event of Default arising from a failure by the Company to convert any Securities into
shares of Common Stock in accordance with this Indenture or (C) any Default or Event of Default in
respect of any provision of this Indenture or the Securities which, under Section 9.02, cannot be
modified or amended without the consent of the Holder of each outstanding Security affected. When
a Default or an Event of Default is waived, it is cured and ceases to exist for every purpose of
this indenture; provided, however, that no waiver of a Default or Event of Default shall extend to
any subsequent or other Default or Event of Default or impair any consequent right. This Section
6.04 shall be in lieu of TIA Section 316(a)(1)(B), and, as permitted by the TIA, TIA Section
316(a)(1)(B) is hereby expressly excluded from this Indenture.



6.05 Control by Majority.



The Holders of a majority in aggregate principal amount of the Securities then outstanding may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights
of other Holders or would involve the Trustee in personal liability unless the Trustee is offered
indemnity reasonably satisfactory to it; provided, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction. This Section 6.05
shall be in lieu of TIA Section 316(a)(1)(A), and, as permitted by the TIA, TIA Section
316(a)(1)(A) is hereby expressly excluded from this Indenture.



6.06 Limitation on Suits.



Except as provided in Section 6.07, a Securityholder may not institute any proceeding under this
Indenture, or for the appointment of a receiver or a trustee, or for any other remedy under this
Indenture unless:




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



     (ii) the Holders of at least twenty five percent (25%) in aggregate principal amount of the
Securities then outstanding make a written request to the Trustee to pursue the remedy;



37









 





     (iii) such Holder or Holders offer and, if requested, provide to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or expense to or of the Trustee
in connection with pursuing such remedy;



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



     (v) during such sixty (60) day period, the Holders of a majority in aggregate principal amount
of the Securities then outstanding do not give the Trustee a direction inconsistent with the
request.


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



6.07 Rights of Holders to Receive Payment.



Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment
of all amounts due with respect to the Securities, on or after the respective due dates as provided
herein, or to bring suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.



Notwithstanding any other provision of this Indenture, the right of any Holder to bring suit for
the enforcement of the right to convert the Security in accordance with this Indenture shall not be
impaired or affected without the consent of the Holder.



6.08 Collection Suit By Trustee.



If an Event of Default specified in Section 6.01(i) or (ii) 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 due with respect to the Securities, including any unpaid and accrued interest and
Additional Interest.



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, any predecessor Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company or its creditors or
properties.



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



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




38









 







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;
	 
	 	 	 	 
	 

	 	Second:
	 	to Securityholders for all amounts due and unpaid on the Securities, without
preference or priority of any kind, according to the amounts due and payable on the
Securities; and
	 
	 	 	 	 
	 

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





The Trustee, upon prior written notice to the Company, may fix a record date and payment date for
any payment by it to Securityholders pursuant to this Section 6.10. At least fifteen (15) days
before each such record date, the Trustee shall mail to each Holder and the Company a written
notice that states such record date and payment date and the amount of such payment.



6.11 Undertaking for Costs.



In any suit for the enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant 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 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than ten percent (10%) in aggregate principal amount of the outstanding Securities.




VII. TRUSTEE




7.01 Duties of Trustee.




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



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



     (i) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and



     (ii) in the absence of bad faith, willful misconduct or negligence on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they conform



39









 




to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).




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



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



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



     (E) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee shall be
segregated from other funds, as directed by the Company or as required by law, and shall be
invested by the Trustee pursuant to the written instructions of the Company reasonably satisfactory
to the Trustee; provided, however, that the Trustee shall have no liability hereunder with respect
to any such investment, other than by reason of the willful misconduct or negligence of the
Trustee; provided further, that in no event shall the Trustee be liable for special, punitive,
indirect, consequential or incidental loss or damage of any kind whatsoever (including but not
limited to lost profits) with respect to such investments, even if the Trustee has been advised of
the likelihood of such loss or damage; provided further, that nothing in this Section 7.01(E) shall
affect the Company’s obligations to make all payments due under the Securities.



7.02 Rights of Trustee.




     (A) Subject to Section 7.01, the Trustee may conclusively rely on any 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 stated in the document; if, however, the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled during normal business hours of
the Company to examine the relevant books, records and premises of the Company, personally or by
agent or attorney upon reasonable prior notice.



     (B) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate
and/or an Opinion of Counsel which conforms to the requirements of Section 11.05. 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.



     (C) Any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution.



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     (D) The Trustee may consult with counsel (such counsel to be reasonably acceptable to the
Company), and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.



     (E) The Trustee may act through agents or attorneys and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.



     (F) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its discretion, rights or powers conferred upon it by
this Indenture.



     (G) Except with respect to Section 6.01, the Trustee shall have no duty to inquire as to the
performance of the Company with respect to the covenants contained in Article IV. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or
Event of Default occurring pursuant to Sections 6.01(i) or 6.01(ii) (but not with respect to a
default in the payment of an installment of Additional Interest), or (ii) any Default or Event of
Default of which a Responsible Officer of the Trustee shall have received written notification or
obtained actual knowledge. Delivery of reports, information and documents to the Trustee under
Article IV (other than Sections 4.04 and 4.07) is for informational purposes only and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely on Officer’s
Certificates).



     (H) Subject to Section 7.01(A), the Trustee shall be under no obligation to exercise any of
the rights or powers vested by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.



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



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



7.03 Individual Rights of Trustee.



The Trustee in its individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or any of its Affiliates with the same rights the Trustee
would have if it were not Trustee. Any Security Agent may do the same with like rights. The
Trustee, however, must comply with Sections 7.10 and 7.11.




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7.04 Trustee’s Disclaimer.



The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities; the Trustee shall not be accountable for the Company’s use of the proceeds from the
Securities, for the Company’s performance hereunder or for the Company’s representations and
warranties contained herein; and the Trustee shall not be responsible for any statement in the
Securities (other than the Trustee’s certificate of authentication), the Shelf Registration
Statement (other than any statement of eligibility executed by the Trustee and filed with the Shelf
Registration Statement pursuant to Item 601(b)(25) of Regulation S-K promulgated under the
Securities Act) or any other offering document related to the Securities.



7.05 Notice of Defaults.



If a Default or Event of Default occurs and is continuing as to which the Trustee has received
notice pursuant to the provisions of this Indenture, or as to which a Responsible Officer of the
Trustee shall have actual knowledge, then the Trustee shall mail to each Holder a notice of the
Default or Event of Default within thirty (30) days after the Trustee has received such notice or
after such Responsible Officer shall have acquired such actual knowledge, whichever is earlier,
unless such Default or Event of Default has been cured or waived; provided, however, that, except
in the case of a Default or Event of Default in payment of any amounts due with respect to any
Security, the Trustee may withhold such notice if, and so long as it in good faith determines that,
withholding such notice is in the best interests of Holders.



7.06 Reports By Trustee to Holders.



Within sixty (60) days after each November 30, beginning with November 30, 2006, the Trustee shall
mail to each Securityholder, pursuant to Section 11.02, if required by TIA Section 313(a) a brief
report dated as of such November 30 that complies with TIA Section 313.



A copy of each report at the time of its mailing to Securityholders shall be mailed by first class
mail to the Company and filed by the Trustee with the SEC and each stock exchange, if any, on which
the Securities are listed. The Company shall promptly notify the Trustee of the listing or
delisting of the Securities on or from any stock exchange.



7.07 Compensation and Indemnity.



The Company shall pay to the Trustee from time to time such compensation for its services as shall
be agreed upon in writing. 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 upon
request for all reasonable out-of-pocket expenses incurred by it pursuant to, and in accordance
with, any provision hereof. Such expenses shall include the reasonable compensation and
out-of-pocket expenses of the Trustee’s agents and counsel.



The Company shall indemnify the Trustee against any and all loss, liability, damage, claim or
expense (including the reasonable fees and expenses of counsel and taxes other than those based
upon the income of the Trustee) incurred by it in connection with the acceptance or administration
of this trust and the performance of its duties hereunder, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the Company, any Holder or any
other Person) or liability in connection with the exercise or performance of any of its powers and
duties hereunder. The Company need not pay for any settlement made without its consent.




42









 







The Trustee shall notify the Company promptly of any claim for which it may seek indemnification.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through the Trustee’s negligence, bad faith or willful misconduct.



To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the Trustee, except that held
in trust to pay amounts due on particular Securities.



The indemnity obligations of the Company with respect to the Trustee provided for in this Section
7.07 shall survive any resignation or removal of the Trustee.



When the Trustee incurs expenses or renders services after an Event of Default specified in Section
6.01(vii) or (viii) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.



7.08 Replacement of 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 by so notifying the Company in writing thirty (30) Business Days prior to
such resignation. The Holders of a majority in aggregate principal amount of the Securities then
outstanding may remove the Trustee by so notifying the Trustee and the Company in writing and may
appoint a successor Trustee with the Company’s consent. 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;



     (iii) a receiver or other 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.



If a successor Trustee does not take office within thirty (30) days after the retiring Trustee
resigns or is removed, the retiring Trustee (at the Company’s expense), the Company or the Holders
of at least ten percent (10%) in aggregate principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor Trustee.



If the Trustee fails to comply with Section 7.10, the Company or any 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 become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee




43









 







under this Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.07.



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 to, another corporation, the successor corporation without any further
act shall be the successor Trustee, if such successor corporation is otherwise eligible hereunder.



7.10 Eligibility; Disqualification.



There shall at all times be a Trustee hereunder that is a corporation organized and doing business
under the laws of the United States of America or of any state thereof, which Trustee (A) is
authorized under such laws to exercise corporate trust powers, (B) is subject to supervision or
examination by federal, state or District of Columbia authorities and (C) has a combined capital
and surplus of at least $100 million as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b). Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b). This Indenture shall at all times have a Trustee that satisfies
the requirements of TIA Section 310(a)(5).



7.11 Preferential Collection of Claims Against Company.



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




VIII. DISCHARGE OF INDENTURE



8.01 Termination of the Obligations of the Company.



This Indenture shall cease to be of further effect if (a) either (i) all outstanding Securities
(other than Securities replaced pursuant to Section 2.07 hereof) have been delivered to the Trustee
for cancellation or (ii) all outstanding Securities have become due and payable at their scheduled
maturity or upon Repurchase at Holder’s Option, Redemption or Repurchase Upon Fundamental Change,
and in either case the Company irrevocably deposits, prior to the applicable due date, with the
Trustee or the Paying Agent (if the Paying Agent is not the Company or any of its Affiliates) cash,
and, if applicable as herein provided and in accordance herewith, such other consideration,
sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section 2.07 hereof) on the Maturity Date or an Option Repurchase Date,
Redemption Date or Fundamental Change Repurchase Date, as the case may be; (b) the Company pays to
the Trustee all other sums payable hereunder by the Company; (c) no Default or Event of Default
with respect to the Securities shall exist on the date of such deposit; (d) such deposit will not
result in a breach or violation of, or constitute a Default or Event of Default under, this
Indenture or any other agreement or instrument to which the Company is a party or by which it is
bound; and (e) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been




44









 







complied with; provided, however, that Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.15,
2.16, 2.17, 3.05, 3.08, 3.09, 4.01, 4.02, 4.05, 7.07 and 7.08 and Articles VIII and X shall survive
any discharge of this Indenture until such time as the Securities have been paid in full and there
are no Securities outstanding.



8.02 Application of Trust Money.



The Trustee shall hold in trust all money and other consideration deposited with it pursuant to
Section 8.01 and shall apply such deposited money and other consideration through the Paying Agent
and in accordance with this Indenture to the payment of the amounts due on the Securities.



8.03 Repayment to Company.



The Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company upon
the written request of the Company, any excess money held by them at any time. The Trustee or the
Paying Agent, as the case may be, shall provide written notice to the Company of any money that has
been held by it and has, for a period of two (2) years, remained unclaimed for the payment of the
principal of, or any accrued and unpaid interest on, the Securities. The Trustee and the Paying
Agent shall pay to the Company, upon the written request of the Company, any money held by them for
the payment of the principal of, premium, if any, or any accrued and unpaid interest or Additional
Interest on, the Securities that remain unclaimed for two (2) years; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may, at the expense
of the Company, cause to be published once in a newspaper of general circulation in the City of New
York or cause to be mailed to each Holder, in accordance with Section 11.02, notice stating that
such money remains unclaimed and that, after a date specified therein, which shall not be less than
thirty (30) days from the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors, subject to
applicable law, and all liability of the Trustee and the Paying Agent with respect to such money
and payment shall, subject to applicable law, cease.



8.04 Reinstatement.



If the Trustee or Paying Agent is unable to apply any money or other consideration in accordance
with Sections 8.01 and 8.02 by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Sections 8.01 and 8.02 until
such time as the Trustee or Paying Agent is permitted to apply all such money or other
consideration in accordance with Sections 8.01 and 8.02; provided, however, that if the Company has
made any payment of amounts due with respect to any Securities because of the reinstatement of its
obligations, then the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying Agent.




45









 








IX. AMENDMENTS



9.01 Without Consent of Holders.



The Company, with the consent of the Trustee, may amend or supplement this Indenture or the
Securities without notice to or the consent of any Securityholder:




     (i) to comply with Sections 5.01 and 10.13 and, in accordance with Section 10.16(F), to give
effect to an election, pursuant to such Section 10.16(F), by the Company to make an Acquirer Stock
Conversion Right Adjustment with respect to a Public Acquirer Fundamental Change;



     (ii) to make any changes or modifications to this Indenture necessary in connection with the
registration of the public offer and sale of the Securities under the Securities Act pursuant to
the Registration Rights Agreement or the qualification of this Indenture under the TIA;



     (iii) to secure the obligations of the Company in respect of the Securities;



     (iv) to add to the covenants of the Company described in this Indenture for the benefit of
Securityholders or to surrender any right or power conferred upon the Company;



     (v) to make provision with respect to adjustments to the Conversion Rate as required by this
Indenture or to increase the Conversion Rate in accordance with this Indenture;



     (vi) to add additional events which shall constitute an Event of Default hereunder; and



     (vii) to provide for a successor Trustee in accordance herewith.


In addition, the Company and the Trustee may enter into a supplemental indenture without the
consent of Holders of the Securities to cure any ambiguity, defect, omission or inconsistency in
this Indenture in a manner that does not individually or in the aggregate adversely affect the
rights of any Holder in any material respect; provided, that the Trustee shall be entitled to
receive and conclusively rely upon an Opinion of Counsel as to whether any such cure does not
individually or in the aggregate adversely affect the rights of any Holder in any material respect.



9.02 With Consent of Holders.



The Company, with the consent of the Trustee, may amend or supplement this Indenture or the
Securities without notice to any Securityholder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities. Subject to Sections
6.04 and 6.07, the Holders of a majority in aggregate principal amount of the outstanding
Securities may, by notice to the Trustee, waive compliance by the Company with any provision of
this Indenture or the Securities without notice to any other Securityholder. Notwithstanding
anything herein to the contrary, without the consent of each Holder of each outstanding Security
affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:




46









 








     (i) change the stated maturity of the principal of, or the payment date of any installment of
interest on any Security;



     (ii) reduce the principal amount of or interest or Additional Interest on any Security;



     (iii) change the place or currency of payment of principal of or interest or Additional
Interest on any Security;



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



     (v) modify, in a manner adverse to Holders, the provisions of this Indenture with respect to
the right of Holders pursuant to Article III to require the Company to repurchase Securities on an
Option Repurchase Date or upon the occurrence of a Fundamental Change;



     (vi) modify the provisions of Section 2.18 in a manner adverse to Holders;



     (vii) adversely affect the right of Holders to convert Securities in accordance with Article
X;



     (viii) reduce the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a modification to or amendment of any provision of this Indenture or
the Securities;



     (ix) reduce the percentage of the aggregate principal amount of the outstanding Securities
whose Holders must consent to a waiver of compliance with any provision of this Indenture or the
Securities or a waiver of any Default or Event of Default; or



     (x) modify the provisions of this Indenture with respect to modification and waiver (including
waiver of a Default or an Event of Default), except to increase the percentage required for
modification or waiver or to provide for consent of each affected Holder.


Promptly after an amendment, supplement or waiver under Section 9.01 or this Section 9.02 becomes
effective, the Company shall mail, or cause to be mailed, to Securityholders a notice briefly
describing such amendment, supplement or waiver. Any failure of the Company to mail such notice
shall not in any way impair or affect the validity of such amendment, supplement or waiver.



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



9.03 Compliance with Trust Indenture Act.



Every amendment, waiver or supplement to this Indenture or the Securities shall comply with the TIA
as then in effect.




47









 







9.04 Revocation and Effect of Consents.



If the Company shall solicit from the Holders a consent to any amendment or supplement to the
Indenture or any waiver hereunder, in each case in accordance herewith, the Company may, but shall
not be obligated to, establish, by Board Resolution and delivery of an Officer’s Certificate to the
Trustee, a record date for the purpose of determining the Holders of record entitled to give such
consent; provided, however, that (i) such record date shall not be more than fifteen (15) days
prior to the first solicitation of such consent, and (ii) at least fifteen (15) days prior to such
record date, the Company shall, in accordance with Section 11.02, mail, or cause to be mailed, by
first class mail a notice of such record date to each Holder and shall publicly disseminate a press
release through a reputable national newswire service, disclosing such record date. If a record
date is so fixed in accordance herewith, then (A) only the Holders of record at 5:00 p.m., New York
City time, on such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Securities have consented to such
amendment, supplement or waiver, and for that purpose the outstanding Securities shall be computed
as of such record date; and (B) those persons who were Holders as of 5:00 p.m., New York City time,
on such record date (or their duly designated proxies), and only those persons, shall be entitled
to revoke any consent previously given, whether or not any such person continues to be a Holder
after such record date; provided, however, that no such consent by the Holders on such record date
shall be effective unless the applicable amendment, supplement or waiver shall become effective
pursuant to the provisions hereof no later than six (6) months after such record date.



Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or, except as provided in the immediately
preceding paragraph, subsequent Holder may revoke the consent as to its Security or portion of a
Security if the Trustee receives the notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.



After an amendment, supplement or waiver becomes effective with respect to the Securities, it shall
bind every Holder (including subsequent Holders) unless such amendment, supplement or waiver makes
a change that requires, pursuant to Section 9.02, the consent of each Holder affected. In that
case, the amendment, supplement or waiver shall bind each Holder of a Security who has consented to
it and, provided that notice of such amendment, supplement or waiver is reflected on a Security
that evidences the same debt as the consenting Holder’s Security, every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.



Nothing in this Section 9.04 shall impair the Company’s rights pursuant Section 9.01(i) to amend
this Indenture or the Securities without the consent of any Securityholder in the manner set forth
in, and permitted by, such Section 9.01(i).



9.05 Notation on or Exchange of Securities.



If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate




48









 







notation on the Security as directed and prepared by the Company about the changed terms and return
it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that reflects the changed
terms.



9.06 Trustee Protected.



The Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to this
Article IX; provided, however, that the Trustee need not sign any amendment, supplement or waiver
authorized pursuant to this Article IX that adversely affects the Trustee’s rights, duties,
liabilities or immunities. The Trustee shall be entitled to receive and conclusively rely upon an
Opinion of Counsel as to legal matters and an Officer’s Certificate as to factual matters that any
supplemental indenture, amendment or waiver is permitted or authorized pursuant to this Indenture.



9.07 Effect of Supplemental Indentures.



Upon the due execution and delivery of any supplemental indenture in accordance with this Article
IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes, and, except as set forth in Sections 9.02 and 9.04,
every Holder of Securities shall be bound thereby.




X. CONVERSION




10.01 Conversion Privilege; Restrictive Legends.




     (A) Subject to the provisions of Article III, the Securities shall be convertible into shares
of Common Stock in accordance with this Article X at any time prior to stated maturity, upon the
satisfaction of the conditions set forth in the second paragraph of paragraph 10 of the Securities.



     (B) The initial Conversion Rate shall be 92.0810 shares of Common Stock per $1,000 principal
amount of Securities. The Conversion Rate shall be subject to adjustment in accordance with
Sections 10.06 through 10.18.



     (C) A Holder may convert a portion of the principal amount of a Security if the portion is
$1,000 principal amount or an integral multiple of $1,000 principal amount. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion of a portion of
it.



     (D) Any shares of Common Stock that are issued upon conversion of a Security (other than
shares of Common Stock issued upon conversion of a Security that previously was sold (a) pursuant
to a registration statement that has been declared effective under the Securities Act and which
continues to be effective at the time of such sale or (b) in compliance with Rule 144 (if
available)) shall bear the Private Placement Legend until the earlier of:




     (x) the second anniversary of the later of the Issue Date and the last date on which
the Company or any Affiliate was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or such shorter period of



49









 






time as permitted by Rule 144(k) under the Securities Act or any successor provision
thereunder) (or such longer period of time as may be required under the Securities Act or
applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise
agreed by the Company and the Holder thereof); and




     (y) the date such shares of Common Stock issued upon conversion of a Security have been
sold (i) pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such sale) or (ii) in
compliance with Rule 144 (if available).



     (E) To convert interests in a Global Security held in book-entry form through the Depositary,
a Holder must deliver to the Depositary the appropriate instruction form for conversion pursuant to
the Depositary’s conversion program.



10.02 Conversion Procedure.




     (A) To convert a Security, a Holder must satisfy the requirements of paragraph 10 of the
Securities. As soon as practicable following the date (the “Conversion Date”) on which the Holder
satisfies all those requirements, the Company shall deliver to the Holder through the Conversion
Agent a certificate for the number of full shares of Common Stock issuable upon the conversion, as
provided in paragraph 10 of the Securities, and a check for the amount of cash payable in lieu of
any fractional share; provided, however, that any Make-Whole Consideration payable pursuant to
Section 10.16 shall be delivered by the Company within the time period specified in Section
10.16(D). Immediately before the close of business on the Conversion Date, and thereafter, the
person in whose name such certificate is to be registered shall be treated as a stockholder of
record of the Company, and all rights of the Holder of the Security to be converted shall
terminate, other than the right to receive the shares of Common Stock and cash deliverable as
provided in the preceding sentence. A Holder of Securities is not entitled to any rights of a
holder of Common Stock, as such, until such Holder has converted its Securities into shares of
Common Stock, or is deemed to be a stockholder of record of the Company, as provided in this
Section 10.02(A), and then only to the extent such Securities are deemed to have been so converted
or such Holder is so deemed to be a stockholder of record.


If a Security is duly surrendered for conversion in accordance herewith, the Company shall have
fully satisfied its obligations with respect to such Security once the Company shall have duly
delivered, in accordance herewith, both (i) the shares of Common Stock, together with any cash
payment for fractional shares, due hereunder upon such conversion; and (ii) if such Security shall
have been surrendered for conversion after the close of business on the record date for the payment
pursuant hereto of an installment of interest but before the related interest payment date, such
installment of interest.




     (B) Except as provided in the Securities or in this Article X, no payment or adjustment will
be made for accrued interest on, or Additional Interest with respect to, a converted Security or
for dividends on any Common Stock issued on or prior to conversion. If any Holder surrenders a
Security for conversion after the close of business on the record date for the payment of an
installment of interest and prior to the related interest payment date, then, notwithstanding such
conversion, the interest payable with respect to such Security on such interest payment date shall
be paid on such interest payment date to the Holder of record of such



50









 




Security at the close of business on such record date; provided, however, that such Security,
when surrendered for conversion, must be accompanied by payment in cash to the Conversion Agent on
behalf of the Company of an amount equal to the interest payable on such interest payment date on
the portion so converted; provided further, however, that such payment to the Conversion Agent
described in the immediately preceding proviso in respect of a Security surrendered for conversion
shall not be required if such Security is called for Redemption pursuant to Section 3.04 and
paragraphs 6 and 7 of the Securities; provided further, that if the Company shall have, prior to
the Conversion Date with respect to a Security, defaulted in a payment of interest on such
Security, then in no event shall the Holder of such Security who surrenders such Security for
conversion be required to pay such defaulted interest or the interest that shall have accrued on
such defaulted interest pursuant to Section 2.12 or otherwise (it being understood that nothing in
this Section 10.02(B) shall affect the Company’s obligations under Section 2.12).




     (C) If a Holder converts more than one Security at the same time, the number of full shares of
Common Stock issuable upon such conversion shall be based on the total principal amount of all
Securities converted.



     (D) Upon surrender of a Security that is converted in part, the Trustee shall authenticate for
the Holder a new Security equal in principal amount to the unconverted portion of the Security
surrendered.



     (E) If the last day on which a Security may be converted is a Legal Holiday in a place where a
Conversion Agent is located, the Security may be surrendered to that Conversion Agent on the next
succeeding day that is not a Legal Holiday.


10.03 Fractional Shares.



The Company will not issue fractional shares of Common Stock upon conversion of Securities and
instead will deliver a check in an amount equal to the value of such fraction computed on the basis
of the Closing Sale Price on the Trading Day immediately before the Conversion Date.



10.04 Taxes on Conversion.



If a Holder converts its Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax or duty due on the issue, if any, of shares of Common Stock upon the conversion.
However, such Holder shall pay any such tax or duty which is due because such shares are issued in
a name other than such Holder’s name. The Conversion Agent may refuse to deliver a certificate
representing the shares of Common Stock to be issued in a name other than such Holder’s name until
the Conversion Agent receives a sum sufficient to pay any tax or duty which will be due because
such shares are to be issued in a name other than such Holder’s name. Nothing herein shall
preclude any tax withholding required by law or regulation.



10.05 Company to Provide Stock.



The Company shall at all times reserve out of its authorized but unissued Common Stock or Common
Stock held in its treasury enough shares of Common Stock to permit the conversion, in accordance
herewith, of all of the Securities into shares of Common Stock. The shares of




51









 







Common Stock due upon conversion of a Global Security shall be delivered by the Company in
accordance with the Depositary’s customary practices.



All shares of Common Stock which may be issued upon conversion of the Securities shall be validly
issued, fully paid and non-assessable and shall be free of preemptive or similar rights and free of
any lien or adverse claim.



The Company shall comply with all securities laws regulating the offer and delivery of shares of
Common Stock upon conversion of Securities and shall list such shares on each national securities
exchange or automated quotation system on which the Common Stock is listed.



10.06 Adjustment of Conversion Rate.



The Conversion Rate shall be subject to adjustment from time to time as follows:




     (a) In case the Company shall (1) pay a dividend in shares of Common Stock to all holders of
Common Stock, (2) make a distribution in shares of Common Stock to all holders of Common Stock, (3)
subdivide the outstanding shares of Common Stock into a greater number of shares of Common Stock or
(4) combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock,
the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately
prior to close of business on the record date or effective date, as applicable, of such dividend,
distribution, subdivision or combination by the number of shares of Common Stock which a person who
owns only one share of Common Stock immediately before the record date or effective date, as
applicable, of such dividend, distribution, subdivision or combination and who is entitled to
participate in such dividend, distribution, subdivision or combination would own immediately after
giving effect to such dividend, distribution, subdivision or combination (without giving effect to
any arrangement pursuant to such dividend, distribution, subdivision or combination not to issue
fractional shares of Common Stock). Any adjustment made pursuant to this Section 10.06(a) shall
become effective immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a subdivision or
combination.



     (b) If the Company shall issue rights or warrants to all or substantially all holders of
Common Stock, entitling them, for a period expiring not more than sixty (60) days immediately
following the record date for the determination of holders of Common Stock entitled to receive such
rights or warrants, to subscribe for or purchase shares of Common Stock (or securities convertible
into or exchangeable or exercisable for Common Stock), at a price per share (or having a
conversion, exchange or exercise price per share) that is less than the Closing Sale Price per
share of Common Stock on the Trading Day immediately preceding the time of announcement of such
issuance, then the Conversion Rate shall be increased by multiplying the Conversion Rate in effect
immediately prior to such Trading Day by a fraction of which (A) the numerator shall be the sum of
(I) the number of shares of Common Stock outstanding at the close of business on such Trading Day
and (II) the aggregate number of shares (the “Underlying Shares”) of Common Stock underlying all
such issued rights or warrants (whether by exercise, conversion, exchange or otherwise), and (B)
the denominator shall be the sum of (I) number of shares of Common Stock outstanding at the close
of business on such Trading Day and (II) the number of shares of Common Stock which the aggregate
exercise, conversion, exchange or other price at which the Underlying Shares may be subscribed for
or purchased pursuant to such rights or warrants would purchase at such Closing Sale Price. Such
increase shall become



52









 




effective immediately prior to the opening of business on the day following such Trading Day.
Notwithstanding the foregoing, the Company shall not be required to make an adjustment to the
Conversion Rate pursuant to this Section 10.06(b) on account of a distribution of rights (whether
by distribution of separate certificates representing such rights or otherwise), provided that (i)
such rights are distributed pursuant to a stockholders’ rights plan; and (ii) the Company makes
adequate provision, on the same basis set forth in the second sentence of Section 10.06(c) with
respect to Rights, and in accordance with Section 10.14, for Holders, upon conversion of
Securities, to receive such rights in addition to any other consideration payable hereunder with
respect to such conversion. In no event shall the Conversion Rate be decreased pursuant to this
Section 10.06(b).




     (c) In case the Company shall dividend or distribute to all or substantially all holders of
Common Stock shares of Capital Stock of the Company (other than Common Stock), evidences of
Indebtedness or other assets (other than dividends or distributions requiring an adjustment to the
Conversion Rate in accordance with Sections 10.06(d) or 10.06(e)), or shall dividend or distribute
to all or substantially all holders of Common Stock rights or warrants to subscribe for or purchase
securities of the Company (other than dividends or distributions of rights or warrants requiring an
adjustment to the Conversion Rate in accordance with Section 10.06(b)), then in each such case the
Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior
to the close of business on the record date for the determination of stockholders entitled to such
dividend or distribution by a fraction of which (A) the numerator shall be the current market price
of Common Stock (as determined pursuant to Section 10.06(g)) on such record date and (B) the
denominator shall be an amount equal to (I) such current market price less (II) the fair market
value (as determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), on such record date, of the portion of the shares
of Capital Stock, evidences of Indebtedness, assets, rights and warrants to be dividended or
distributed applicable to one share of Common Stock, such increase to become effective immediately
prior to the opening of business on the day following such record date; provided, however, that if
such denominator is equal to or less than zero, then, in lieu of the foregoing adjustment to the
Conversion Rate, adequate provision shall be made so that each Holder shall have the right to
receive upon conversion of its Securities, in addition to any consideration otherwise payable as
herein provided upon such conversion, an amount of shares of Capital Stock, evidences of
Indebtedness, assets, rights and/or warrants that such Holder would have received had such Holder
converted all of its Securities on such record date. Notwithstanding the foregoing, in the event
that the Company shall distribute rights or warrants (other than distributions of rights or
warrants requiring an adjustment to the Conversion Rate in accordance with Section 10.06(b))
(collectively, “Rights”) to all or substantially all holders of Common Stock, the Company may, in
lieu of making any adjustment pursuant to this Section 10.06(c), make proper provision so that each
Holder of a Security who converts such Security (or any portion thereof) on or after the record
date for such distribution and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common Stock issuable (and
cash, if any, payable) upon such conversion (the “Conversion Shares”), a number of Rights to be
determined as follows: (i) if such conversion occurs on or prior to the date for the distribution
to the holders of Rights of separate certificates evidencing such Rights (the “Distribution Date”),
the same number of Rights to which a holder of a number of shares of Common Stock equal to the
number of shares of Conversion Shares



53









 




would be entitled at the time of such conversion in accordance with the terms and provisions
of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date,
the same number of Rights to which a holder of the number of shares of Common Stock into which the
principal amount of the Security so converted was convertible immediately prior to the Distribution
Date would have been entitled on the Distribution Date in accordance with the terms and provisions
of and applicable to the Rights. Any distribution of rights (whether by distribution of separate
certificates representing such rights or otherwise) or warrants pursuant to a stockholders’ rights
plan complying with the requirements set forth in the preceding sentence of this paragraph and with
Section 10.15 shall not constitute a distribution of rights or warrants pursuant to this Section
10.06(c). In no event shall the Conversion Rate be decreased pursuant to this Section 10.06(c).




     (d) In case the Company shall, by dividend or otherwise, at any time make a distribution of
cash (excluding any cash that is distributed as part of a distribution requiring a Conversion Rate
adjustment pursuant to Section 10.06(e)) to all or substantially all holders of Common Stock, the
Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior
to the close of business on the record date for the determination of holders of Common Stock
entitled to such distribution by a fraction (A) whose numerator shall be the current market price
per share of Common Stock (as determined pursuant to Section 10.06(g)) on such record date and (B)
whose denominator shall be an amount equal to (I) such current market price per share of Common
Stock less (II) the amount of the distribution per share of Common Stock; provided, however, that
the Conversion Rate shall not be adjusted pursuant to this Section 10.06(d) to the extent, and only
to the extent, such adjustment would cause the Conversion Price to be less than one cent ($0.01);
provided further that, if the denominator of such fraction shall be equal to or less than zero, the
Conversion Rate shall be instead adjusted so that the Conversion Price is equal to one cent
($0.01). An adjustment to the Conversion Rate pursuant to this Section 10.06(d) shall become
effective immediately prior to the opening of business on the day immediately following such record
date. In no event shall the Conversion Rate be decreased pursuant to this Section 10.06(d).



     (e) In case the Company or any Subsidiary shall distribute cash or other consideration in
respect of a tender offer or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock where the sum of the aggregate amount of such cash distributed and the
aggregate fair market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution), as of the Expiration Date
(as defined below), of such other consideration distributed (such sum, the “Aggregate Amount”)
expressed as an amount per share of Common Stock validly tendered or exchanged, and not withdrawn,
pursuant to such tender offer or exchange offer as of the Expiration Time (as defined below) (such
tendered or exchanged shares of Common Stock, the “Purchased Shares”) exceeds the Closing Sale
Price per share of Common Stock on the Trading Day next succeeding the last date (such last date,
the “Expiration Date”) on which tenders or exchanges could have been made pursuant to such tender
offer or exchange offer (as the same may be amended through the Expiration Date), then the
Conversion Rate shall be increased by multiplying the Conversion Rate in effect immediately prior
to the close of business on the Expiration Date by a fraction (A) whose numerator is equal to the
sum of (I) the Aggregate Amount and (II) the product of (a) the current market price per share of
Common Stock (as determined pursuant to Section 10.06(g)) on the Expiration Date and (b) an



54









 




amount equal to (i) the number of shares of Common Stock outstanding as of the last time (the
“Expiration Time”) at which tenders or exchanges could have been made pursuant to such tender offer
or exchange offer (including all Purchased Shares) less (ii) the Purchased Shares and (B) whose
denominator is equal to the product of (I) the number of shares of Common Stock outstanding as of
the Expiration Time (including all Purchased Shares) and (II) the current market price per share of
Common Stock on the Expiration Date.




     An increase, if any, to the Conversion Rate pursuant to this Section 10.06(e) shall become
effective immediately prior to the opening of business on the Business Day following the Expiration
Date. In the event that the Company or a Subsidiary is obligated to purchase shares of Common
Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is
permanently prevented by applicable law from effecting any such purchases, or all such purchases
are rescinded, then the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such tender offer or exchange offer had not been made. If the
application of this Section 10.06(e) to any tender offer or exchange offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange
offer under this Section 10.06(e).



     (f) In addition to the foregoing adjustments in Subsections (a), (b), (c), (d) and (e) above,
the Company, from time to time and to the extent permitted by law and by the rules of the New York
Stock Exchange, may increase the Conversion Rate by any amount for a period of at least twenty (20)
days or such longer period as may be permitted by law, if the Board of Directors has made a
determination, which determination shall be conclusive, that such increase would be in the best
interests of the Company. Such Conversion Rate increase shall be irrevocable during such period.
The Company shall give written notice to the Trustee and cause notice of such increase to be
mailed, in accordance with Section 11.02, to each Holder of Securities, at least fifteen (15) days
prior to the date on which such increase commences.



     (g) For the purpose of any computation under Subsections (a), (b), (c) or (d) above of this
Section 10.06, the current market price per share of Common Stock on the date fixed for
determination of the stockholders entitled to receive the issuance or distribution requiring such
computation (the “Determination Date”) shall be deemed to be the average of the Closing Sale Prices
for the ten (10) consecutive Trading Days ending on the earlier of the Determination Date and the
day before the Ex Date with respect to the distribution requiring such computation; provided,
however, that (i) if the Ex Date for any event (other than the event requiring such computation)
that requires an adjustment to the Conversion Rate pursuant to Subsection (a), (b), (c), (d) or (e)
above occurs on or after the tenth (10th) Trading Day prior to the Determination Date or Expiration
Date, whichever is applicable, and prior to the Ex Date for the issuance or distribution requiring
such computation, 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 reciprocal of the fraction by
which the Conversion Rate is so required to be adjusted as a result of such other event, (ii) if
the Ex Date for any event (other than the event requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to Subsection (a), (b), (c), (d) or (e) above occurs on
or after the Ex Date for the issuance or distribution requiring such computation and on or prior to
the Determination Date or the Expiration Date, whichever is applicable, 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




55










 






by the same fraction by which the Conversion Rate is so required to be adjusted as a result of
such other event, and (iii) if the Ex Date for the event requiring such computation is on or prior
to the Determination Date or Expiration Date, whichever is applicable, after taking into account
any adjustment required pursuant to clause (i) or (ii) of this proviso, the Closing Sale Price for
each Trading Day on and after such Ex Date shall be adjusted by adding thereto the amount of any
cash and the fair market value (as determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for the purposes of this Section 10.06, 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 other securities or assets or cash being
distributed (in the event requiring such computation) applicable to one share of Common Stock as of
the close of business on the day before such Ex Date.




     The term “Ex Date,” (i) when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades the 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, (ii) when used with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades the regular way on such
exchange or in such market after the time at which such subdivision or combination becomes
effective, and (iii) when used with respect to any tender offer or exchange offer means the first
date on which the Common Stock trades the regular way on such exchange or in such market after the
expiration time of such tender offer or exchange offer (as it may be amended or extended).



10.07 No Adjustment.



Notwithstanding anything to the contrary in Section 10.06 or Section 10.18, no adjustment in the
Conversion Rate pursuant to Section 10.06 or Section 10.18 shall be required until cumulative
adjustments amount to one percent (1%) or more of the Conversion Rate as last adjusted (or, if
never adjusted, the initial Conversion Rate); provided, however, that any adjustments to the
Conversion Rate which by reason of this Section 10.07 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment to the Conversion Rate. All
calculations under this Article X shall be made to the nearest cent or to the nearest one-millionth
of a share, as the case may be.



Notwithstanding anything to the contrary in Section 10.06, if any rights, options or warrants
issued by the Company and requiring an adjustment to the Conversion Rate in accordance with Section
10.06 are only exercisable upon the occurrence of certain triggering events, then the Conversion
Rate will not be adjusted as provided in Section 10.06 until the earliest of such triggering event
occurs. Upon the expiration or termination of any such rights, options or warrants without the
exercise of such rights, options or warrants, the Conversion Rate then in effect shall be adjusted
immediately to the Conversion Rate which would have been in effect at the time of such expiration
or termination had such rights, options or warrants, to the extent outstanding immediately prior to
such expiration or termination, never been issued.



Notwithstanding anything to the contrary in Section 10.06, if any dividend or distribution is
declared and the Conversion Rate is adjusted pursuant to Section 10.06 on account of such dividend
or distribution, but such dividend or distribution is thereafter not paid or made, the

56









 








Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect had
such dividend or distribution not been declared.



Notwithstanding anything to the contrary in Section 10.06, no adjustment to the Conversion Rate
need be made pursuant to Section 10.06 for a transaction if Holders are to participate in the
transaction without conversion on a basis and with notice that the Board of Directors determines in
good faith to be fair and appropriate in light of the basis and notice on which holders of Common
Stock participate in the transaction (which determination shall be described in a Board
Resolution).



No adjustment to the Conversion Rate need be made pursuant to Section 10.06 solely as a result of
distributions or dividends solely on any preferred stock of the Company.



Except as otherwise provided in this Indenture, no adjustment to the Conversion Rate shall be
required pursuant to Section 10.06 for the issuance of Common Stock or the right to purchase Common
Stock or any security that is convertible or exchangeable for Common Stock.




10.08 Other Adjustments.



In the event that, as a result of an adjustment made pursuant to Section 10.06 hereof, the Holder
of any Security thereafter surrendered for conversion shall become entitled to receive any shares
of Capital Stock other than shares of Common Stock, thereafter the Conversion Rate of such other
shares so receivable upon conversion of any Security shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Article X.




10.09 Adjustment Upon 90% Beneficial Ownership by Redstone Parties.




     (A) If, as of the close of business on the last Trading Day of any calendar quarter (each such
Trading Day, a “Measurement Date”), a Redstone Party or any combination of Redstone Parties is the
“beneficial owner” (as that term is used in Rule 13d-3 under the Exchange Act), directly or
indirectly, of 90% or more of the “aggregate fair market value” (as defined below) of all of the
Company’s outstanding Capital Stock (calculated as set forth below), then the Conversion Rate
applicable to all Securities will increase by 7.2495 shares per $1,000 principal amount of
Securities. The number of shares by which the Conversion Rate will increase in these circumstances
will adjust in the same manner in which, and for the same events for which, the Conversion Rate
adjusts under Section 10.06. However, the number of shares by which the Conversion Rate will
increase in these circumstances will not adjust if there is a change in the Conversion Rate
pursuant to Section 10.17.



     (B) For purposes of this Section 10.09, the “aggregate fair market value” of all of the
Company’s outstanding Capital Stock on any Measurement Date will equal the sum of the fair market
values of all outstanding shares of the Company’s Capital Stock as of such Measurement Date. The
fair market value of a share of Capital Stock on any Measurement Date will equal the average of the
Closing Sale Prices of such Capital Stock across all Trading Days during the calendar quarter in
which such Measurement Date falls; provided, however, that notwithstanding the foregoing, as of any
Measurement Date, the fair market value of each share of convertible preferred stock that is
outstanding as of the date of this Indenture shall equal the sum of the fair market values,
determined as set forth above as of such Measurement Date, of



57









 




the shares of Common Stock that are issuable upon conversion of such share of convertible
preferred stock.




     (C) For purposes of this Section 10.09, the following shares of the Company’s Capital Stock
will be deemed to be outstanding as of any Measurement Date:



     (i) all shares of the Company’s Capital Stock actually issued and outstanding as of such
Measurement Date (without regard to any contractual or other restrictions on the disposition
thereof);



     (ii) all shares of the Company’s Capital Stock then issuable upon conversion of all
outstanding Securities at the then-applicable Conversion Rate (without giving effect to any
adjustment of the Conversion Rate under this Section 10.9); and



     (iii) all shares of the Company’s Capital Stock issuable upon exercise of outstanding options
(I) that are exercisable as of such Measurement Date, and (II) whose respective exercise prices
are, as of such Measurement Date, lower than the per-share fair market value of such Capital Stock,
calculated using the treasury stock method.



     (D) The Company shall determine, as of each Measurement Date, whether an adjustment to the
Conversion Rate is required under this Section 10.09. The Company shall make this determination as
promptly as practicable, but in any event no later than fifteen (15) days, following the conclusion
of each calendar quarter and will certify the results of each such determination to the Trustee in
the form of an Officer’s Certificate. In the event that the Company determines that an adjustment
to the Conversion Rate is required under this Section 10.09, it will promptly (but in any event no
later than twenty (20) days following the conclusion of such calendar quarter) mail notice of such
adjustment to Holders, at their addresses appearing on the Registrar’s books, publicly announce
such adjustment through a reputable national newswire service and publish such announcement on its
website.



     (E) Any adjustment to the Conversion Rate under this Section 10.09 (I) shall be retroactively
effective as of the related Measurement Date, so that any Holder that submits Securities for
conversion on or after such Measurement Date, whether before or after the announcement of such
adjustment, shall be entitled to the additional shares of Common Stock issuable pursuant to such
adjustment, and (II) shall remain in effect until maturity of the Securities.



     (F) Notwithstanding the foregoing, if, at any time before an increase in the Conversion Rate
pursuant to this Section 10.09 becomes effective, a transaction occurs that (i) constitutes a
Make-Whole Fundamental Change and with respect to which the Company does not make an Acquirer Stock
Conversion Rate Adjustment (as defined below) and (ii) results in the satisfaction of the
conditions to an increase in the Conversion Rate pursuant to this Section 10.09, then such
transaction will not result in an increase in the Conversion Rate under this Section 10.09, but
instead will result in an increase in the Conversion Rate pursuant to Section 10.16 below.



58









 





10.10 Adjustments for Tax Purposes.



Except as prohibited by law or by the rules of the New York Stock Exchange, the Company may make
such increases in the Conversion Rate, in addition to those required by Section 10.06 hereof, as it
determines to be advisable in order to eliminate or diminish any income taxes to holders of Common
Stock resulting from any stock dividend, subdivision of shares, distribution of rights to purchase
stock or securities or distribution of securities convertible into or exchangeable for stock made
by the Company or to its stockholders.




10.11 Notice of Adjustment.



Whenever the Conversion Rate is adjusted, the Company shall promptly mail, or cause there to be
mailed, to Holders at the addresses appearing on the Registrar’s books, or electronically transmit
or cause to be electronically transmitted if Securities are held in book-entry form through the
Depositary, a notice of the adjustment and file with the Trustee an Officer’s Certificate briefly
stating the facts requiring the adjustment and the manner of computing it. The certificate shall
be conclusive evidence of the correctness of such adjustment.




10.12 Notice of Certain Transactions.




In the event that:




     (i) the Company takes any action, or becomes aware of any event, which would require an
adjustment in the Conversion Rate,



     (ii) the Company takes any action that would require a supplemental indenture pursuant to
Section 10.13, or



     (iii) there is a dissolution or liquidation of the Company,


the Company shall mail to Holders at the addresses appearing on the Registrar’s books and the
Trustee a written notice, or electronically transmit such notice if Securities are held in
book-entry form through the Depositary, stating the proposed record, effective or expiration date,
as the case may be, of any transaction referred to in clause (i), (ii) or (iii) of this Section
10.12. The Company shall mail such notice at least twenty (20) days before such date; however,
failure to mail such notice or any defect therein shall not affect the validity of any transaction
referred to in clause (i), (ii) or (iii) of this Section 10.12.





	10.13	 	Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on
Conversion Privilege.




Except as provided in Section 10.16(F), if any of the following shall occur, namely: (i) any
reclassification or change in the Common Stock issuable upon conversion of Securities (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 of the Common Stock), (ii) any consolidation, merger or
binding share exchange to which the Company is a party other than a merger in which the Company is
the continuing Person and which does not result in any reclassification of, or change (other than a
change in name, or 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) in, the Common Stock or (iii) any sale, transfer,
lease, conveyance or other disposition of all or substantially all of the

59









 








property or assets of the Company, in each case pursuant to which the Common Stock would be
converted into, or exchanged for, cash, securities or other property; then the Company or such
successor or purchasing Person, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee providing that, at and after the effective time of such
reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the Holder of each Security then outstanding shall have the right to
convert such Security into the kind and amount of shares of stock and other securities and property
(including cash), if any, receivable upon such reclassification, change, consolidation, merger,
binding share exchange, sale, transfer, lease, conveyance or disposition by a holder of the number
of shares of Common Stock deliverable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition. Such supplemental indenture shall provide for adjustments of the
Conversion Rate which shall be as nearly equivalent as may be practicable to the adjustments of the
Conversion Rate provided for in this Article X. The foregoing, however, shall not in any way
affect the right a Holder of a Security may otherwise have, pursuant to Section 10.06(c), Section
10.06(b) or Section 10.15, to receive rights or warrants upon conversion of a Security. If, in the
case of any such consolidation, merger, binding share exchange, sale, transfer, lease, conveyance
or disposition, the stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock includes shares of stock or other securities and property of a Person
other than the successor or purchasing Person, as the case may be, in such consolidation, merger,
binding share exchange, sale, transfer, lease, conveyance or disposition, then such supplemental
indenture shall also be executed by such other Person and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of Directors in good faith
shall reasonably determine necessary by reason of the foregoing (which determination shall be
described in a Board Resolution). In the event that holders of Common Stock have the opportunity
to elect the form of consideration to be received in such reclassification, change, consolidation,
merger, binding share exchange, sale, transfer, lease, conveyance or disposition, (1) the Company
shall make adequate provision whereby a holder of the Securities shall have a reasonable
opportunity to determine the form of consideration into which its Securities shall be convertible
from and after the date of such reclassification, change, consolidation, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition and (2) the Company shall not become a
party to any such reclassification, change, consolidation, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition unless the terms of such reclassification, change,
consolidation, merger, binding share exchange, sale, transfer, lease, conveyance or disposition are
consistent with clause (1) of this Section 10.13. The provisions of this Section 10.13 shall
similarly apply to successive consolidations, mergers, binding share exchanges, sales, transfers,
leases, conveyances or dispositions.



In the event the Company shall execute a supplemental indenture pursuant to this Section 10.13, the
Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons
therefor, the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition and any adjustment to be made with respect thereto.




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	10.14	 	Trustee’s Disclaimer.




The Trustee has no duty to determine when an adjustment under this Article X should be made, how it
should be made or what such adjustment should be, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be protected in relying upon, the Officer’s
Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 10.11 hereof. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall not be responsible
for the failure by the Company to comply with any provisions of this Article X.



The Trustee shall not be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 10.13, but may accept as
conclusive evidence of the correctness thereof, and shall be protected in relying upon, the
Officer’s Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 10.13 hereof. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to (A) make any cash payment or issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or property upon the
surrender of any Security for conversion hereunder, or (B) subject to Article VII, comply with any
of the covenants of the Company hereunder.





	10.15	 	Rights Distributions Pursuant to Stockholders’ Rights Plans.




Upon conversion of any Security or a portion thereof, the Company shall make provision for the
Holder thereof to receive, in addition to, and concurrently with the delivery of, the consideration
otherwise payable hereunder upon such conversion, the rights described in each and any
stockholders’ rights plan the Company may have in effect at such time (whether or not the rights
have been separated from the Common Stock prior to the time of conversion). In the event that the
Company implements a stockholders’ rights plan after the date hereof, the Company shall provide
that the Holders will receive upon conversion of their Securities, in addition to the consideration
otherwise payable hereunder upon such conversion, the rights described therein (whether or not the
rights have been separated from the Common Stock prior to the time of conversion).





	10.16	 	Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection with
Make-Whole Fundamental Changes.





     (A) Notwithstanding anything herein to the contrary, the Conversion Rate applicable to each
Security that is surrendered for conversion in accordance with this Article X from and after the
date that is fifteen (15) days prior to the anticipated effective date of a Make-Whole Fundamental
Change until and including the date that is fifteen (15) days after the actual effective date (or
if such Make-Whole Fundamental Change also results in Holders having a right to require the Company
to repurchase their Security, until the Trading Day immediately prior to the Fundamental Change
Repurchase Date) shall be increased to an amount equal to the Conversion Rate that would, but for
this Section 10.16, otherwise apply to such Security pursuant to this Article X, plus an amount
equal to the Make-Whole Conversion Rate Adjustment (as defined below); provided, however, that such
increase to the Conversion Rate shall not apply if such Make-Whole Fundamental Change constitutes a
Public Acquirer Fundamental Change (as defined below) with respect to which the Company shall have
duly made, and given full effect



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to, an election, pursuant to and in accordance with Section 10.16(F), to make an Acquirer
Stock Conversion Right Adjustment.



The additional consideration payable hereunder on account of any Make-Whole Conversion Rate
Adjustment with respect to a Security surrendered for conversion is herein referred to as the
"Make-Whole Consideration.”




     (B) As used herein, “Make-Whole Conversion Rate Adjustment” shall mean, with respect to each
Make-Whole Fundamental Change and each applicable Security, an amount equal to a fraction whose
numerator is the product of the Applicable Increase and the principal amount of such Security to be
converted and whose denominator is one thousand dollars ($1,000). As used herein, “Applicable
Increase” shall mean, with respect to a Make-Whole Fundamental Change, the amount, set forth in the
following table, which corresponds to the effective date of such Make-Whole Fundamental Change (the
"Effective Date”) and the Applicable Price of such Make-Whole Fundamental Change:



APPLICABLE INCREASE

(per $1,000 principal amount of Securities)




Effective Date




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	APPLICABLE	 	May 23,	 	May 31,	 	May 31,	 	May 31,	 	May 31,	 	May 31,	 	May 31,	 	June 6,
	      PRICE	 	2006	 	2007	 	2008	 	2009	 	2010	 	2011	 	2012	 	2013
	$9.87
	 	 	9.23	 	 	 	9.23	 	 	 	9.23	 	 	 	9.23	 	 	 	9.23	 	 	 	6.40	 	 	 	2.66	 	 	 	1.96	 
	$10.50
	 	 	9.23	 	 	 	9.23	 	 	 	9.08	 	 	 	7.92	 	 	 	7.26	 	 	 	5.62	 	 	 	1.84	 	 	 	0.35	 
	$10.86
	 	 	8.63	 	 	 	8.59	 	 	 	8.35	 	 	 	7.28	 	 	 	6.75	 	 	 	5.24	 	 	 	1.58	 	 	 	0.00	 
	$11.00
	 	 	8.34	 	 	 	8.31	 	 	 	8.09	 	 	 	7.06	 	 	 	6.56	 	 	 	5.10	 	 	 	1.52	 	 	 	0.00	 
	$11.50
	 	 	7.37	 	 	 	7.31	 	 	 	7.21	 	 	 	6.33	 	 	 	5.93	 	 	 	4.64	 	 	 	1.33	 	 	 	0.00	 
	$12.00
	 	 	6.51	 	 	 	6.46	 	 	 	6.41	 	 	 	5.68	 	 	 	5.34	 	 	 	4.21	 	 	 	1.19	 	 	 	0.00	 
	$13.00
	 	 	5.08	 	 	 	5.04	 	 	 	4.93	 	 	 	4.53	 	 	 	4.32	 	 	 	3.47	 	 	 	0.98	 	 	 	0.00	 
	$14.00
	 	 	3.90	 	 	 	3.86	 	 	 	3.64	 	 	 	3.58	 	 	 	3.44	 	 	 	2.83	 	 	 	0.80	 	 	 	0.00	 
	$15.00
	 	 	3.23	 	 	 	3.12	 	 	 	3.02	 	 	 	2.79	 	 	 	2.70	 	 	 	2.29	 	 	 	0.65	 	 	 	0.00	 
	$16.00
	 	 	2.47	 	 	 	2.36	 	 	 	2.28	 	 	 	2.12	 	 	 	2.07	 	 	 	1.81	 	 	 	0.51	 	 	 	0.00	 
	$18.00
	 	 	1.21	 	 	 	1.20	 	 	 	1.19	 	 	 	1.14	 	 	 	1.11	 	 	 	1.01	 	 	 	0.29	 	 	 	0.00	 
	$20.00
	 	 	0.52	 	 	 	0.52	 	 	 	0.51	 	 	 	0.51	 	 	 	0.49	 	 	 	0.44	 	 	 	0.10	 	 	 	0.00	 
	$22.50
	 	 	0.07	 	 	 	0.05	 	 	 	0.03	 	 	 	0.03	 	 	 	0.02	 	 	 	0.01	 	 	 	0.00	 	 	 	0.00	 
	$25.00
	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 






provided, however, that:




     (i) if the actual Applicable Price of such Make-Whole Fundamental Change is between two (2)
prices listed in the table above under the column titled “Applicable Price,” or if the actual
Effective Date of such Make-Whole Fundamental Change is between two dates listed in the table above
in the row immediately below the title “Effective Date,” then the Applicable Increase for such
Make-Whole Fundamental Change shall be determined by linear interpolation between the Applicable
Increases set forth for such two prices, or for such two dates based on a three hundred and sixty
five (365) day year, as applicable;



62









 





     (ii) if the actual Applicable Price of such Make-Whole Fundamental Change is greater than
$25.00 per share (subject to adjustment as provided in Section 10.16(B)(iii)), or if the actual
Applicable Price of such Make-Whole Fundamental Change is less than $9.87 per share (subject to
adjustment as provided in Section 10.16(B)(iii)), then the Applicable Increase shall be equal to
zero (0) and this Section 10.16 shall not require the Company to increase the Conversion Rate with
respect to such Make-Whole Fundamental Change;



     (iii) if an event occurs that requires, pursuant to this Article X (other than solely pursuant
to Sections 10.09, 10.16 or 10.17), an adjustment to the Conversion Rate, then, on the date and at
the time such adjustment is so required to be made, each price set forth in the table above under
the column titled “Applicable Price” shall be deemed to be adjusted so that such price, at and
after such time, shall be equal to the product of (1) such price as in effect immediately before
such adjustment to such price and (2) a fraction whose numerator is the Conversion Rate in effect
immediately before such adjustment to the Conversion Rate and whose denominator is the Conversion
Rate to be in effect, in accordance with this Article X, immediately after such adjustment to the
Conversion Rate;



     (iv) each Applicable Increase amount set forth in the table above shall be adjusted in the
same manner in which, and for the same events for which, the Conversion Rate is to be adjusted
pursuant to this Article X (other than solely pursuant to Sections 10.09, 10.16 or 10.17);



     (v) in no event shall the Conversion Rate applicable to any Security be increased pursuant to
this Section 10.16 to the extent, but only to the extent, such increase shall not be permitted by
the continued listing standards of the New York Stock Exchange; provided, however, that any
reduction, pursuant to this Section 10.16(B)(v), in such increase to the Conversion Rate shall be
made by the Company in good faith and, to the extent practical, pro rata in accordance with the
principal amount of Securities surrendered for conversion in connection with the applicable
Make-Whole Fundamental Change;



     (vi) if a Make-Whole Fundamental Change occurs within ninety (90) days following the effective
date of an increase to the Conversion Rate pursuant to Section 10.09 (a “Redstone adjustment”), the
Applicable Increase related to such Make-Whole Fundamental Change shall, for each $1,000 in
principal amount of Securities, be limited to the excess, if any, of (1) the number of shares
determined in accordance with the other provisions of this Section 10.16(B), over (2) the increase
in Conversion Rate per $1,000 in principal amount of Securities resulting from the Redstone
adjustment, as adjusted pursuant to the last sentence of Section 10.09(A); and



     (vii) notwithstanding anything in this Indenture to the contrary, the Conversion Rate may not
be increased by more than 9.23 shares per $1,000 in principal amount of Securities pursuant to this
Section 10.16, but the 9.23 share amount will adjust in the same manner in which, and for the same
events for which, the Conversion Rate adjusts under Section 10.06 or 10.18.



     (C) As used herein, “Applicable Price” shall have the following meaning with respect to a
Make-Whole Fundamental Change: (a) if the consideration (excluding cash payments for



63









 




fractional shares or pursuant to statutory appraisal rights) for the Common Stock in such
Make-Whole Fundamental Change consists solely of cash, then the “Applicable Price” with respect to
such Make-Whole Fundamental Change shall be equal to the cash amount paid per share of Common Stock
in such Make-Whole Fundamental Change; and (b) in all other circumstances, the “Applicable Price”
with respect to such Make-Whole Fundamental Change shall be equal to the average of the Closing
Sale Prices per share of Common Stock for the five (5) consecutive Trading Days immediately
preceding the Effective Date of such Make-Whole Fundamental Change, which average shall be
appropriately adjusted by the Board of Directors, in its good faith determination (which
determination shall be described in a Board Resolution), to account for any adjustment, pursuant
hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event occurs, at any time
during such five (5) consecutive Trading Days.




     (D) The Company shall cause any Make-Whole Consideration payable pursuant to this Section
10.16 with respect to a Security, in connection with the conversion of such Security pursuant to
Article X, to be paid, through the Conversion Agent, as soon as practicable, but in no event after
the later of (a) the date such Security is surrendered for such conversion and (b) the fifth
(5th) Business Day immediately following the Effective Date of the applicable Make-Whole
Fundamental Change. The consideration in which the Make-Whole Consideration is payable shall be
determined in accordance herewith, including, without limitation, in accordance, to the extent
applicable, with Section 10.13.



     (E) At least twenty (20) Business Days before the anticipated effective date of each proposed
Make-Whole Fundamental Change, the Company shall mail to each Holder, in accordance with Section
11.02, written notice of, and shall publicly announce, through a reputable national newswire
service, and publish on the Company’s website, the anticipated effective date of such proposed
Make-Whole Fundamental Change. Each such notice, announcement and publication shall also state (i)
that the Company either (a) has elected, in accordance with Section 10.16(F), to make an Acquirer
Stock Conversion Right Adjustment with respect to such Make-Whole Fundamental Change in lieu of
increasing the Conversion Rate pursuant to Section 10.16(A) or (b) has elected not to make an
Acquirer Stock Conversion Right Adjustment with respect to such Make-Whole Fundamental Change; and
(ii) if the Company has elected not to make such Acquirer Stock Conversion Right Adjustment with
respect to such Make-Whole Fundamental Change, that, in connection with such Make-Whole Fundamental
Change, the Company shall increase, in accordance herewith, the Conversion Rate applicable to
Securities entitled as provided herein to such increase (along with a description of how such
increase shall be calculated and the time periods during which Securities must be surrendered in
order to be entitled to such increase). No later than the actual Effective Date of each Make-Whole
Fundamental Change, the Company shall mail, in accordance with Section 11.02, written notice of,
and shall publicly announce, through a reputable national newswire service, and publish on the
Company’s website, such Effective Date.



     (F) Notwithstanding anything to the contrary in this Section 10.16, if the Company shall make
any mailing, announcement or publication referred to in Section 10.16(E) in respect of a Make-Whole
Fundamental Change that shall also constitute a Public Acquirer Fundamental Change, then the
Company shall have the right to, in lieu of increasing the Conversion Rate pursuant to Section
10.16(A) in connection with such Make-Whole Fundamental Change, cause



64









 




the right to convert the Securities in accordance with this Article X to change such that,
from and after the effective time of such Public Acquirer Fundamental Change, the right of each
Holder of any Security to convert such Security into shares of Common Stock and cash for fractional
shares shall be changed into the right to convert such Security solely into shares of Public
Acquirer Common Stock applicable to such Public Acquirer Fundamental Change and cash for fractional
shares thereof, at an initial Conversion Rate (which shall take effect at such effective time, but
which shall thereafter be subject to adjustment in the same manner in which, and for the same
events for which, the Conversion Rate is to be adjusted pursuant to this Article X, other than
pursuant to Section 10.09 and 10.17) equal to the Conversion Rate in effect immediately before such
effective time multiplied by a fraction whose numerator is the Reference Price and whose
denominator is the average of the Closing Sale Prices per share of such Public Acquirer Common
Stock for the five (5) consecutive Trading Days commencing on, and including, the Trading Day
immediately after the effective date of such Public Acquirer Fundamental Change, which average
shall be appropriately adjusted by the Board of Directors, in its good faith determination (which
determination shall be described in a Board Resolution), to account for any event that, assuming
such Public Acquirer Common Stock were Common Stock, would require, pursuant hereto, an adjustment
to the Conversion Rate to become effective, or any such event whose Ex Date occurs, at any time
during such five (5) consecutive Trading Days. Any such change in the right to convert the
Securities in accordance with this Section 10.16(F) is herein referred to as an “Acquirer Stock
Conversion Right Adjustment.”



If the Company shall have elected, in accordance with this Section 10.16(F), to make an Acquirer
Stock Conversion Right Adjustment with respect to a Public Acquirer Fundamental Change, then:




     (i) the Company shall cause there to be executed and delivered to the Trustee a supplemental
indenture in form reasonably satisfactory to the Trustee, which supplemental indenture shall (a)
give due effect to such election in accordance with this Section 10.16(F), including, without
limitation, evidencing a binding and enforceable obligation of the issuer of the applicable Public
Acquirer Common Stock to satisfy the right of Holders to convert Securities in accordance with this
Article X and this Section 10.16(F); (b) be executed by, without limitation, such issuer; (c)
contain such additional provisions to protect the interests of the Holders of the Securities as the
Board of Directors in good faith shall reasonably determine (which determination shall be described
in a Board Resolution); and (d) be in full force and effect no later than the effective time of
such Public Acquirer Fundamental Change;



     (ii) the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating
the reasons for such supplemental indenture, the nature of the change in the conversion right
pursuant to such Acquirer Stock Conversion Right Adjustment and the Conversion Rate as adjusted
therefor;



     (iii) the provisions of Section 10.13 shall not apply to such Public Acquirer Fundamental
Change, provided such Public Acquirer Fundamental Change shall have been duly given effect in
accordance with this Section 10.16(F); and



     (iv) such election shall be irrevocable with respect to such Public Acquirer Fundamental
Change and shall be deemed to have been made at the time the Company shall, with respect to such
Public Acquirer Fundamental Change, mail the first notice, or make the



65









 




first public announcement or publication, whichever shall occur earlier, referred to in
Section 10.16(E) (it being understood that the Company shall discharge its obligations hereunder in
good faith in determining whether an announced transaction and a completed transaction are deemed,
for purposes of this clause (iv), to be the same Public Acquirer Fundamental Change despite
differences in the announced terms and the terms as such transaction was consummated);



provided, however, that the Company shall not be required to give effect to such election to make
an Acquirer Stock Conversion Right Adjustment with respect to such Public Acquirer Fundamental
Change if such Public Acquirer Fundamental Change is not consummated.



For avoidance of doubt, any change, pursuant to this Section 10.16(F), in the right of Holders to
convert Securities shall apply to all Holders.



As used herein, “Reference Price” shall have the following meaning with respect to a Public
Acquirer Fundamental Change: (a) if such Public Acquirer Fundamental Change shall be a share
exchange, consolidation, merger or binding share exchange pursuant to which the Common Stock is
converted into cash, securities or other property, then the “Reference Price” with respect to such
Public Acquirer Fundamental Change shall mean the fair market value (as determined in good faith by
the Board of Directors, which determination shall be described in a Board Resolution), as of the
effective time of such Public Acquirer Fundamental Change, of such cash, securities and other
property paid or payable pursuant to such Public Acquirer Fundamental Change per share of Common
Stock; and (b) in all other circumstances, the “Reference Price” with respect to such Public
Acquirer Fundamental Change shall mean the average of the Closing Sale Prices per share of Common
Stock for the five (5) consecutive Trading Days immediately preceding, and excluding, the effective
date of such Public Acquirer Fundamental Change, which average shall be appropriately adjusted by
the Board of Directors, in its good faith determination (which determination shall be described in
a Board Resolution), to account for any adjustment, pursuant hereto, to the Conversion Rate that
shall become effective, or any event requiring, pursuant hereto, an adjustment to the Conversion
Rate where the Ex Date of such event occurs, at any time during such five (5) consecutive Trading
Days.




     (G) For avoidance of doubt, the provisions of this Section 10.16 shall not affect or diminish
the Company’s obligations, if any, pursuant to Article V with respect to a Public Acquirer
Fundamental Change or Make-Whole Fundamental Change.



     (H) Nothing in this Section 10.16 shall prevent an adjustment to the Conversion Rate pursuant
to Section 10.06 in respect of a Make-Whole Fundamental Change or a Public Acquirer Fundamental
Change.



10.17 Adjustment to the Conversion Rate on or Prior to May 31, 2009.



If, on any date (such date, the “Reset Determination Date”) prior to May 31, 2008, (1) the
arithmetic average of the daily volume-weighted average price (such arithmetic average being
“VWAP”) of the Common Stock for any 20 trading days within a period of 30 consecutive trading days
ending on the Reset Determination Date is below $8.00 (as adjusted for Anti-Dilution Conversion
Rate Adjustments, if any) and (2) 110% of the closing sale price on the Reset Determination Date is
less than or equal to $8.80 (as adjusted for Anti-Dilution Conversion Rate Adjustments, if any),
the Conversion Rate shall be increased as of such Reset


66









 






Determination Date such that the Conversion Price would be $8.80 (as adjusted for Anti-Dilution
Conversion Rate Adjustments, if any).



In addition, if, on any date (such date, the “Additional Reset Determination Date”) prior to May
31, 2008, (1) the VWAP of the Common Stock for any 20 trading days within a period of 30
consecutive trading days ending on the Additional Reset Determination Date is below $6.00 (as
adjusted for Anti-Dilution Conversion Rate Adjustments, if any) and (2) 110% of the closing sale
price on the Additional Reset Determination Date is less than or equal to $6.60 (as adjusted for
Anti-Dilution Conversion Rate Adjustments, if any), the Conversion Rate shall be increased as of
such Reset Determination Date such that the Conversion Price would be $6.60 (as adjusted for
Anti-Dilution Conversion Rate Adjustments, if any).



A Reset Determination Date does not need to have occurred in order for an Additional Reset
Determination Date to occur.



Furthermore, if, on May 31, 2008 or May 31, 2009, 110% of the VWAP of the Common Stock for any 20
trading days within a period of 30 consecutive trading days ending on such date is below the
Conversion Price in effect at that time, the Conversion Rate shall be increased as of such Reset
Determination Date such that the Conversion Price would be 110% of such VWAP. The Conversion Rate
will not be adjusted on May 31, 2008 or May 31, 2009 if 110% of the VWAP of the Common Stock for
such 20 trading days within such period of 30 consecutive trading days ending on such date is equal
to or greater than the Conversion Price in effect at that time.



In no event shall the Conversion Rate be increased such that the Conversion Price would be less
than $6.60 (as adjusted for Anti-Dilution Conversion Rate Adjustments, if any).



The Company shall notify the Holders and the Trustee in the manner provided in Section 10.11 of any
adjustment in the Conversion Rate under this Section 10.17.



10.18 Additional Adjustment to the Conversion Price.



The Company will adjust the Conversion Price if at any time prior to May 31, 2010, it issues (i)
any shares of its Common Stock, (ii) any securities exchangeable or convertible into its Common
Stock, or (iii) any rights or warrants to purchase or subscribe for its Common Stock or securities
exchangeable or convertible into its Common Stock, in each case at a price below the then-effective
Conversion Price (each such issuance, a “Dilutive Equity Issuance”).



In such circumstances, the Conversion Price will be reduced to a new Conversion Price calculated as
follows:




     (1) if the Company issues Common Stock, then by dividing (a) an amount equal to the sum of (x)
the product obtained by multiplying the aggregate number of shares of Common Stock outstanding
immediately prior to such issue by the Conversion Price in effect immediately prior to such issue,
and (y) the consideration, if any, received by the Company upon such issue by (b) the aggregate
number of shares of Common Stock outstanding immediately after such issue;



     (2) if the Company issues any securities exchangeable or convertible into its Common Stock,
whether or not the right to exchange or convert is immediately exercisable, and



67









 




the price per share for which shares of Common Stock are issuable upon such exchange or
conversion (determined by dividing (a) the sum of the total amount received or receivable by the
Company as consideration for the issue of such securities and the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the exchange or conversion thereof,
by (b) the maximum aggregate number of shares of Common Stock issuable upon the exchange or
conversion of all such securities) shall be less than the Conversion Price in effect immediately
prior to such issue, then the maximum aggregate number of shares of Common Stock issuable upon the
exchange or conversion of all such exchangeable or convertible securities shall (as of the date of
the issue of such securities) be deemed to be outstanding and to have been issued for such price
per share, and the new Conversion Price shall be calculated as described in clause (1) on the basis
of such deemed issuance; and




     (3) if the Company issues any rights or warrants described above (all such rights or warrants
being herein called “Rights” and all such convertible or exchangeable securities being herein
called “Convertible Securities”, whether or not such Rights are immediately exercisable or any such
Convertible Securities are convertible or exchangeable immediately upon issuance), and the price
per share for which shares of Common Stock are issuable upon the exercise of such Rights or upon
conversion or exchange of such Convertible Securities (determined by dividing (a) the sum of the
total amount, if any, received or receivable by the Company as consideration for such Rights, and
(x) in the case of Rights exercisable for shares of Common Stock, the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the exercise of all such Rights for
shares of Common Stock, or (y) in the case of Rights exercisable for Convertible Securities, the
minimum aggregate amount of additional consideration, if any, payable upon the issue or sale of
such Convertible Securities and upon the conversion or exchange thereof, by (b) the maximum
aggregate number of shares of Common Stock issuable upon the exercise of such Rights or upon the
conversion or exchange of all such Convertible Securities) shall be less than the Conversion Price
in effect immediately prior to the time of the issue of such Rights, then the maximum aggregate
number of shares of Common Stock issuable upon the exercise of all such Rights or upon the
conversion or exchange of all such Convertible Securities shall (as of the date of issue of such
initial Rights) be deemed to be outstanding and to have been issued for such price per share, and
the new Conversion Price shall be calculated as described in clause (1) on the basis of such deemed
issuance.


For the avoidance of doubt, the adjustment to the Conversion Price described hereunder shall be
made on the issue date for the Dilutive Equity Issuance and in case of (2) or (3) above, the
Conversion Price shall not be subject to adjustment at the time Common Stock or Convertible
Securities are issued upon the exercise of any Rights or at the time Common Stock is issued upon
conversion or exchange of any Convertible Securities.



If the exchange, conversion or exercise price of any securities described in (2) or (3) above is
subsequently reduced by the Company, other than as a result of the anti-dilution adjustments
provided for in the terms of the securities at time of issuance, the Conversion Price of the
Securities will be further reduced by applying the applicable formula provided above.



Notwithstanding the foregoing, the term “Dilutive Equity Issuance” shall not include issuances (i)
that constitute Anti- Dilution Conversion Rate Adjustments, (ii) of any Common Stock, Convertible
Securities or Rights issuable to any employees, directors or consultants pursuant to any future or
existing equity compensation plan, (iii) of any Common Stock, Convertible Securities or Rights
existing on the date hereof, including, without limitation, the 6.0%


68









 






Convertible Senior Notes due 2025, (iv) of any Common Stock, Convertible Securities or Rights
issuable under the Third Amended and Restated Rights Agreement, dated October 14, 2003, between the
Company and The Bank of New York, as rights agent, (the “Rights Agreement”) or that may be issued
pursuant to any rights plan that may replace the Rights Agreement or (v) of Common Stock or
securities exchangeable or convertible into its Common Stock issued in connection with an
acquisition by the Company of stock or assets of another Person, in connection with a licensing or
other strategic relationship or joint venture with another Person or in connection with a strategic
investment in the Company.



Following adjustment of the Conversion Price in accordance with this Section 10.18, the Conversion
Rate shall also be adjusted by dividing 1,000 by the new Conversion Price.




XI. MISCELLANEOUS




11.01 Trust Indenture Act Controls.



If any provision of this Indenture limits, qualifies or conflicts with another provision which is
required or deemed to be included in this Indenture by the TIA, then such provision of the TIA
shall control.




11.02 Notices.



Any notice or communication by the Company or the Trustee to the other shall be deemed to be duly
given if made in writing and delivered:




     (A) by hand (in which case such notice shall be effective upon delivery);



     (B) by facsimile (in which case such notice shall be effective upon receipt of confirmation of
good transmission thereof); or



     (C) by overnight delivery by a nationally recognized courier service (in which case such
notice shall be effective on the Business Day immediately after being deposited with such courier
service), in each case to the other party’s address or facsimile number, as applicable, stated in
this Section 11.02. The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.


Any notice or communication to a Holder shall be mailed to its address shown on the register kept
by the Registrar or, if Securities are held in book-entry form through the Depositary, such notice
or communication may be transmitted electronically in compliance with the procedures of the
Depositary. 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 mailed in the manner provided above, it is duly given, whether or
not the addressee receives it.



If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and
each Security Agent at the same time.



All notices or communications shall be in writing.




69









 








The Company’s address is:



Midway Games Inc.

2704 W. Roscoe Street

Chicago, IL 60618

Fax: 773-961-2099

Attn: Chief Financial Officer




The Trustee’s address is:



Wells Fargo Bank, N.A.

Corporate Trust Services

Sixth and Marquette

MAC N9303-120

Minneapolis, MN 55479

Fax: 612-667-9825

Attn: Midway Games Inc. Account Manager



If the Trustee is required, pursuant to the express terms of this Indenture, to mail a notice or
communication to Holders, the Trustee shall also mail a copy of such notice or communication to the
Company.




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




11.04 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:




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



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


Each signatory to an Officer’s Certificate or an Opinion of Counsel may (if so stated) rely,
effectively, upon an Opinion of Counsel as to legal matters and an Officer’s Certificate or
certificates of public officials as to factual matters if such signatory reasonably and in good
faith believes in the accuracy of the document relied upon.




11.05 Statements Required in Certificate in Opinion.



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




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



70









 





     (ii) 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;



     (iii) 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



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



11.06 Rules by Trustee and Agents.



The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar,
Paying Agent or Conversion Agent may make reasonable rules and set reasonable requirements for
their respective functions.




11.07 Legal Holidays.



A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required
to be open in the City of New York, in the State of New York or in the city in which the Trustee
administers its corporate trust business. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue on that payment for the intervening period.



A “Business Day” is a day other than a Legal Holiday.




11.08 Duplicate Originals.



The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. Delivery of an executed
counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.




11.09 Governing Law.



The laws of the State of New York shall govern this Indenture and the Securities.



The Company hereby:





     (i) agrees that any suit, action or proceeding against it arising out of or relating to
this Indenture or the Securities, 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,




     (iii) irrevocably submits to the non-exclusive jurisdiction of such courts in any suit,
action or proceeding,



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     (iv) agrees that final judgment in any such suit, action or proceeding brought in such
a court shall be conclusive and binding and may be enforced in the courts of the
jurisdiction of which it is subject by a suit upon judgment, and




     (v) agrees that service of process by mail to the address specified in Section 11.02
shall constitute personal service of such process on it in any such suit, action or
proceeding.


Nothing in this Section 11.09 shall affect the right of the Trustee or any Holder of the Securities
to serve process in any other manner permitted by law.




11.10 No Adverse Interpretation of Other Agreements.



This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or any of its Subsidiaries. No such indenture, loan or debt agreement may be used to
interpret this Indenture.




11.11 Successors.



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




11.12 Separability.



In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby and a Holder shall have no claim therefor against any party
hereto.




11.13 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.




11.14 Calculations in Respect of the Securities.



The Company or its agents shall make all calculations under this Indenture and the Securities in
good faith. In the absence of manifest error, such calculations shall be final and binding on all
Holders. The Company shall provide a copy of such calculations to the Trustee as required
hereunder, and, absent contrary written notice by the Company to the Trustee, the Trustee shall be
entitled to rely on the accuracy of any such calculation without independent verification.




11.15 No Personal Liability of Directors, Employees or Stockholders.



None of the Company’s past, present or future directors, officers, employees or stockholders, as
such, shall have any liability for any of the Company’s obligations under this Indenture or the
Securities or for any claim based on, or in respect or by reason of, such obligations or their
creation. Except as otherwise provided by applicable law, by accepting a Security, each Holder

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waives and releases all such liability and such waiver and release is part of the consideration for
the issue of the Securities.




[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]





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




	 	 	 	 	 
	 	 	MIDWAY GAMES INC.
	 
	 	 	 	 	 	 
	 

	 	By:	  /s/ David F. Zucker 
	 

	 	 	 
	 

	 	 	Name:	  David F. Zucker 
	 

	 	 	Title:	  President and CEO 
	 
	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
	 
	 	 	 	 	 
	 

	 	By:	  /s/ Lynn M. Steiner 
	 

	 	 	 
	 

	 	 	Name:	  Lynn M. Steiner 
	 

	 	 	Title:	  Vice President 







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EXHIBIT A




MIDWAY GAMES INC.




Certificate No. 1



THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, 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 ANY ACCOUNT 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 THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING
THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT, AND



(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY, OR ANY
BENEFICIAL INTEREST HEREIN OR THEREIN, PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:





	 	(A)	 	TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
	 
	 	(B)	 	PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR
	 
	 	(C)	 	TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR
	 
	 	(D)	 	PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.




PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A DULY COMPLETED AND
SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE
TRUSTEE.




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PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, 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.



THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT,
DATED MAY 30, 2006, AMONG MIDWAY GAMES INC. AND THE INITIAL PURCHASER.



THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



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



TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.




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7.125 % Convertible Senior Note due 2026




CUSIP No. 598148 AC 8



Midway Games Inc., a Delaware corporation (the “Company”), for value received, hereby promises to
pay to Cede & Co., or its registered assigns, the principal sum of seventy-five million dollars
($75,000,000) on May 31, 2026 and to pay interest thereon, as provided on the reverse hereof, until
the principal and any unpaid and accrued interest and Additional Interest, if any, are paid or duly
provided for.



Interest Payment Dates: May 31 and November 30 with the first payment to be made on November 30,
2006.



Record Dates: May 15 and November 15.



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



IN WITNESS WHEREOF, Midway Games Inc. has caused this instrument to be duly signed.




	 	 	 	 	 
	 	MIDWAY GAMES INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	Dated:  May 30, 2006 	 	 	 	 



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TRUSTEE’S CERTIFICATE OF AUTHENTICATION




	 	 	 	 	 
	This is one of the Securities referred to in the	 	 
	within-mentioned Indenture.	 	 
	 
	 	 	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 
	 
	 	 	 	 
	Dated: May 30, 2006	 	 






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MIDWAY GAMES INC.




7.125% CONVERTIBLE SENIOR NOTE DUE 2026



1. Interest. Midway Games Inc., a Delaware corporation (the “Company”), promises to pay interest
on the principal amount of this Security at the rate per annum shown above. The Company will pay
interest, payable semi-annually in arrears, on May 31 and November 30 of each year, with the first
payment to be made on November 30, 2006. Except as described below, we will pay interest that is
due on an interest payment date to holders of record at the close of business on the preceding May
15 and November 15, respectively. Interest on the Securities will accrue on the principal amount
from, and including, the most recent date to which interest has been paid or provided for or, if no
interest has been paid or provided for, from, and including, May 30, 2006, in each case to, but
excluding, the next interest payment date or Maturity Date, as the case may be. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.



2. Maturity. The Securities will mature on May 31, 2026.



3. Method of Payment. The Company will pay interest on the Securities to the persons who are
Holders of record of Securities at the close of business on the record date set forth on the face
of this Security next preceding the applicable interest payment date. Holders must surrender
Securities to a Paying Agent to collect the principal amount, Redemption Price, Option Repurchase
Price or Fundamental Change Repurchase Price of the Securities, plus, if applicable, accrued and
unpaid interest and Additional Interest, if any, payable as herein provided upon Redemption,
Repurchase at Holder’s Option or Repurchase Upon Fundamental Change, as the case may be. The
Company will pay, in money of the United States that at the time of payment is legal tender for
payment of public and private debts, all amounts due in cash with respect to the Securities, which
amounts shall be paid (A) in the case this Security is in global form, by wire transfer of
immediately available funds to the account specified by the Holder hereof; or (B) in the case of a
Security that is held, other than in global form, by a Holder who is the record holder of more than
five million dollars ($5,000,000) aggregate principal amount of Securities, by wire transfer of
immediately available funds to the account specified by such Holder or, if no such account is
specified, or if this Security is held, other than in global form, by a Holder who is the record
holder of five million dollars ($5,000,000) or less in aggregate principal amount of Securities, by
mailing a check to such Holder’s address shown in the register of the Registrar.



4. Paying Agent, Registrar, Conversion Agent. Initially, Wells Fargo Bank, National Association
(the “Trustee”), will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice.



5. Indenture. The Company issued the Securities under an Indenture dated as of May 30, 2006 (the
"Indenture”) between the Company and the Trustee. The Securities shall be entitled to the benefits
of the Indenture. The terms of the Securities include those stated in the Indenture (including,
without limitation, a limitation on the incurrence of additional indebtedness) 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 amended and in effect from time to time. The Securities are subject
to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such
terms. The Securities are general unsecured senior obligations of the

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Company limited to $75,000,000 aggregate principal amount, except as otherwise provided in the
Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen
Securities). Terms used herein without definition and which are defined in the Indenture have the
meanings assigned to them in the Indenture.




6. Optional Redemption.



The Company shall have the right, at the Company’s option, at any time, and from time to time, on a
Redemption Date on or after June 6, 2013, to redeem all or any part of the Securities at a price
payable in cash equal to one hundred percent (100%) of the principal amount of the Securities to be
redeemed, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the
Redemption Date.



Upon surrender to the Paying Agent of a Security subject to Redemption, such Security shall be
redeemed, with payment to the Holder surrendering such Security, at the Redemption Price plus
accrued and unpaid interest and Additional Interest, if any, to, but excluding, the Redemption
Date, unless the Redemption Date is an interest payment date, in which case such accrued and unpaid
interest and Additional Interest, if any, will instead be paid on such interest payment date to the
Holder of record of such Security at the close of business on the record date for such interest
payment. The Company will make at least ten (10) semi-annual interest payments with respect to the
Securities prior to redeeming any Securities under this paragraph 6.



If the Paying Agent (other than the Company) holds on a Redemption Date money sufficient to pay the
aggregate Redemption Price with respect to all Securities to be redeemed, plus accrued and unpaid
interest and Additional Interest, if any, payable as provided in the Indenture upon Redemption,
then (unless there shall be a Default in the payment of such aggregate Redemption Price or of such
accrued and unpaid interest or Additional Interest) on and after such date such Securities shall be
deemed to be no longer outstanding, interest on such Securities shall cease to accrue, and such
Securities shall be deemed paid whether or not such Securities are delivered to the Paying Agent.
Thereafter, all rights of the Holders of such Securities shall terminate with respect to such
Securities, other than the right to receive the Redemption Price, plus such accrued and unpaid
interest and Additional Interest, if any, in accordance with the Indenture.



7. Notice of Redemption. Notice of Redemption will be mailed at least thirty (30) days but not
more than sixty (60) days before the Redemption Date to each Holder of Securities to be redeemed at
its address appearing in the security register. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.



8. Repurchase by the Company at the Option of the Holder. Subject to the terms and conditions of
the Indenture, the Company shall become obligated to repurchase, at the option of the Holder, the
Securities held by such Holder on May 31, 2010, May 31, 2016 and May 31, 2021 (each, an “Option
Repurchase Date”) at an Option Repurchase Price, payable in cash, equal to one hundred percent
(100%) of the principal amount of the Securities to be repurchased, plus accrued and unpaid
interest and Additional Interest, if any, to, but excluding, the applicable Option Repurchase Date,
upon delivery of a Repurchase Notice containing the information set forth in the Indenture, at any
time from 9:00 a.m., New York City time, on the date that is twenty (20) Business Days prior to the
applicable Option Repurchase Date until 5:00 p.m., New York City time, on the third (3rd) Business
Day immediately preceding the applicable Option

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Repurchase Date and upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.



Holders have the right to withdraw any Repurchase Notice by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.



If the Paying Agent (other than the Company) holds on an Option Repurchase Date money sufficient to
pay the aggregate Option Repurchase Price with respect to all Securities to be repurchased upon
Repurchase at Holder’s Option, plus accrued and unpaid interest and Additional Interest, if any,
payable as provided in the Indenture upon Repurchase at Holder’s Option, then (unless there shall
be a Default in the payment of such aggregate Option Repurchase Price or of such accrued and unpaid
interest or Additional Interest) on and after such date such Securities shall be deemed to be no
longer outstanding, interest on such Securities shall cease to accrue, and such Securities shall be
deemed paid whether or not such Securities are delivered to the Paying Agent. Thereafter, all
rights of the Holders of such Securities shall terminate with respect to such Securities, other
than the right to receive the Option Repurchase Price, plus such accrued and unpaid interest and
Additional Interest, in accordance with the Indenture.



9. Repurchase at Option of Holder Upon a Fundamental Change. Subject to the terms and conditions
of the Indenture, in the event of a Fundamental Change, each Holder of the Securities shall have
the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities,
including any portion thereof which is $1,000 in principal amount or any integral multiple thereof,
on a date selected by the Company (the “Fundamental Change Repurchase Date”), which date is no
later than thirty (30) days after the date on which notice of such Fundamental Change is mailed in
accordance with the Indenture, at a price payable in cash equal to one hundred percent (100%) of
the principal amount of such Security, plus accrued and unpaid interest and Additional Interest to,
but excluding, the Fundamental Change Repurchase Date.



Within twenty (20) days after the occurrence of the Fundamental Change, the Company must mail, or
cause to be mailed, notice of the occurrence of such Fundamental Change to each Holder at the
address of such Holder appearing in the register of the Registrar. Such notice shall include,
among other things, a description of the procedures which a Holder must follow to exercise the
Fundamental Change Repurchase Right. To exercise the Fundamental Change Repurchase Right, a Holder
of Securities must, in accordance with the provisions of the Indenture, (i) deliver, no later than
5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the
Fundamental Change Repurchase Date, a Repurchase Notice to the Company (if it is acting as its own
Paying Agent) or to the Paying Agent; and (ii) deliver, at any time after the delivery of such
Repurchase Notice, the Securities with respect to which the Holder is exercising its Fundamental
Change Repurchase Right (together with all necessary endorsements). If the Securities delivered in
connection with a Holder’s exercise of its Fundamental Change Repurchase Right are held in
book-entry form through the Depositary, then such Repurchase Notice must comply with applicable
procedures of the Depositary.



10. Conversion.



Subject to earlier Redemption, Repurchase at Holder’s Option or Repurchase Upon Fundamental Change,
Holders may surrender Securities in integral multiples of $1,000 principal amount for conversion
into shares of Common Stock in accordance with Article X of the Indenture at any time prior to
stated maturity.




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To convert a Security, a Holder must (1) complete and sign the Conversion Notice, with appropriate
signature guarantee, on the back of the Security, (2) surrender the Security to a Conversion Agent,
(3) furnish appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent, (4) pay the amount of interest, if any, the Holder must pay in accordance with
the Indenture and (5) pay any tax or duty if required pursuant to the Indenture. A Holder may
convert a portion of a Security if the portion is $1,000 principal amount or an integral multiple
of $1,000 principal amount.



The initial Conversion Rate is 92.0810 shares of Common Stock per $1,000 principal amount of
Securities (which results in an effective initial Conversion Price of approximately $10.86 per
share) subject to adjustment in the event of certain circumstances as specified in the Indenture.
The Company will deliver a check in lieu of any fractional share. Except as other otherwise
provided herein or in the Indenture, on conversion, no payment or adjustment for any unpaid and
accrued interest on, or Additional Interest with respect to, the Securities will be made. If a
Holder surrenders a Security for conversion after the close of business on the record date for the
payment of an installment of interest and prior to the related interest payment date, such
Security, when surrendered for conversion, must be accompanied by cash payment of an amount equal
to the interest thereon which the registered Holder at the close of business on such record date is
to receive (other than overdue interest, if any, that has accrued on such Security), unless such
Security has been called for Redemption as described in the Indenture.



The Conversion Rate applicable to each Security that is surrendered for conversion in accordance
with the Securities and Article X of the Indenture on or before the date that is thirty (30)
Business Days after the date on which the Company announces that a Make-Whole Fundamental Change
has occurred shall be increased to an amount equal to the Conversion Rate that would, but for
Section 10.16 of the Indenture, otherwise apply to such Security pursuant to Article X of the
Indenture, plus an amount equal to the Make-Whole Conversion Rate Adjustment; provided, however,
that such increase to the Conversion Rate shall not apply if such Make-Whole Fundamental Change
constitutes a Public Acquirer Fundamental Change with respect to which the Company shall have duly
made, and given full effect to, an election, pursuant to and in accordance with Section 10.16(F) of
the Indenture, to make an Acquirer Stock Conversion Right Adjustment.



Any shares of Common Stock that are issued upon conversion of a Security shall bear the Private
Placement Legend until after the second anniversary of the later of the latest Issue Date and the
last date on which the Company or any Affiliate was the owner of such shares or the Security (or
any predecessor security) from which such shares were converted (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor provision thereunder) (or such
longer period of time as may be required under the Securities Act or applicable state securities
laws, as set forth in an Opinion of Counsel, unless otherwise agreed by the Company and the Holder
thereof).



11. Denominations, Transfer, Exchange. The Securities are in registered form, without coupons, in
denominations of $1,000 principal amount and integral multiples of $1,000 principal amount. The
transfer of Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or
similar governmental charge that may be imposed in connection with certain


A-8









 






transfers or exchanges. The Company or the Trustee, as the case may be, shall not be required to
register the transfer of or exchange any Security (i) during a period beginning at the opening of
business fifteen (15) days before the mailing of a notice of redemption of the Securities selected
for Redemption under Section 3.04 of the Indenture and ending at the close of business on the day
of such mailing or (ii) for a period of fifteen (15) days before selecting, pursuant to Section
3.03 of the Indenture, Securities to be redeemed or (iii) that has been selected for Redemption or
for which a Repurchase Notice has been delivered, and not withdrawn, in accordance with the
Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or
repurchased in part.



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



13. Merger or Consolidation. Except as provided in the Indenture, the Company shall not
consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of
all or substantially all of the property or assets of the Company to, another person, whether in a
single transaction or series of related transactions, unless (A) either (i) such transaction or
series of transactions shall be a merger or consolidation where the Company shall be the surviving
corporation; or (ii) the surviving, resulting or transferee person both (a) is a corporation
organized and existing under the laws of the United States, any State thereof or the District of
Columbia; and (b) assumes by supplemental indenture all the obligations of the Company under the
Securities and the Indenture; and (B) immediately after giving effect to such transaction or series
of transactions, no Default or Event of Default shall exist.



14. Amendments, Supplements and Waivers. Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities, and certain existing Defaults or Events
of Default may be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. In accordance with the terms of the Indenture, the
Company, with the consent of the Trustee, may amend or supplement this Indenture or the Securities
without notice to or the consent of any Securityholder: (i) to comply with Sections 5.01 and 10.13
of the Indenture and, in accordance with Section 10.16(F) of the Indenture, to give effect to an
election, pursuant to such Section 10.16(F), by the Company to make an Acquirer Stock Conversion
Right Adjustment with respect to a Public Acquirer Fundamental Change; (ii) to make any changes or
modifications to the Indenture necessary in connection with the registration of the Securities
under the Securities Act pursuant to the Registration Rights Agreement or the qualification of the
Indenture under the TIA; (iii) to secure the obligations of the Company in respect of the
Securities; (iv) to add to the covenants of the Company described in the Indenture for the benefit
of Securityholders or to surrender any right or power conferred upon the Company; (v) to make
provisions with respect to adjustments to the Conversion Rate as required by the Indenture or to
increase the Conversion Rate in accordance with the Indenture; (vi) to add additional events which
shall constitute an Event of Default under the Indenture; and (vii) to provide for a successor
Trustee in accordance with the Indenture. In addition, the Company and the Trustee may enter into
a supplemental indenture without the consent of Holders of the Securities to cure any ambiguity,
defect, omission or inconsistency in the Indenture in a manner that does not individually or in the
aggregate adversely affect the rights of any Holder in any material respect.




A-9









 







15. Defaults and Remedies. Subject to the provisions of the Indenture, an “Event of Default”
occurs if (i) the Company defaults in the payment of the principal of, or premium, if any, on, any
Security when the same becomes due and payable, whether at maturity, upon Redemption, on an Option
Repurchase Date with respect to a Repurchase at Holder’s Option, on a Fundamental Change Repurchase
Date with respect to a Repurchase Upon Fundamental Change or otherwise; (ii) the Company defaults
in the payment of an installment of interest or Additional Interest on any Security when due, if
such failure continues for thirty (30) days after the date when due; (iii) the Company fails to
satisfy its conversion obligations upon exercise of a Holder’s conversion rights pursuant to the
Indenture; (iv) the Company fails to timely provide a Fundamental Change Notice, or an Option
Repurchase Notice, as required by the provisions of the Indenture; (v) the Company fails to comply
with any other term, covenant or agreement set forth in the Securities or the Indenture and such
failure continues for the period, and after the notice, specified in the Indenture; (vi) the
Company or any of its Subsidiaries defaults in the payment when due, after the expiration of any
applicable grace period, of principal of, or premium, if any, or interest on, Indebtedness of the
Company or any Subsidiary for money borrowed, in the aggregate principal amount then outstanding of
ten million dollars ($10,000,000) or more, or the acceleration of Indebtedness of the Company or
any of its Subsidiaries for money borrowed in such aggregate principal amount or more so that it
becomes due and payable prior to the date on which it would otherwise become due and payable and
such default is not cured or waived, or such acceleration is not rescinded, within sixty (60) days
after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least
twenty five percent (25%) in the aggregate principal amount of the Securities then outstanding,
each in accordance with the Indenture; or (vii) there occur certain events of bankruptcy or
insolvency involving the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company.



If an Event of Default (excluding an Event of Default specified in Section 6.01(vii) or (viii) of
the Indenture with respect to the Company (but including an Event of Default specified in Section
6.01(vii) or (viii) of the Indenture solely with respect to a Significant Subsidiary of the Company
or any group of Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the
Company)) occurs and is continuing, the Trustee by notice to the Company or the Holders of at least
twenty five percent (25%) in principal amount of the Securities then outstanding by notice to the
Company and the Trustee may declare the Securities to be due and payable. Upon such declaration,
the principal of, and any premium and accrued and unpaid interest (including any Additional
Interest) on, all Securities shall be due and payable immediately. If an Event of Default
specified in Section 6.01(vii) or (viii) of the Indenture with respect to the Company (excluding,
for purposes of this sentence, an Event of Default specified in Section 6.01(vii) or (viii) of the
Indenture solely with respect to a Significant Subsidiary of the Company or any group of
Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company)
occurs, the principal of, and premium and accrued and unpaid interest (including any Additional
Interest) on, all the Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority
in aggregate principal amount of the Securities then outstanding by written notice to the Trustee
may rescind or annul an acceleration and its consequences if (A) the rescission would not conflict
with any governmental or court order or decree, (B) all existing Events of Default, except the
nonpayment of principal, premium or interest that has become due solely because of


A-10









 






the acceleration, have been cured or waived and (C) all amounts due to the Trustee under Section
7.07 of the Indenture have been paid.



Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The
Holders of a majority in aggregate principal amount of the Securities then outstanding may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture, is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability unless the Trustee is offered indemnity
reasonably satisfactory to it; provided, that the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.



If a Default or Event of Default occurs and is continuing as to which the Trustee has received
notice pursuant to the provisions of the Indenture, or as to which a Responsible Officer of the
Trustee shall have actual knowledge, then the Trustee shall mail to each Holder a notice of the
Default or Event of Default within thirty (30) days after the Trustee has received such notice or
after such Responsible Officer shall have acquired such actual knowledge, whichever is earlier,
unless such Default or Event of Default has been cured or waived; provided, however, that, except
in the case of a Default or Event of Default in payment of any amounts due with respect to any
Security, the Trustee may withhold such notice if, and so long as it in good faith determines that,
withholding such notice is in the best interests of Holders. The Company must deliver to the
Trustee an annual compliance certificate.



16. Registration Rights. The Holders are entitled to registration rights as set forth in the
Registration Rights Agreement. The Holders shall be entitled to receive Additional Interest in
certain circumstances, all as set forth in the Registration Rights Agreement.



17. Trustee Dealings with the Company. The Trustee under the Indenture, or any banking institution
serving as successor Trustee thereunder, in its individual or any other capacity, may make loans
to, 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.



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



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



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




A-11









 







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




Midway Games Inc.

2704 W. Roscoe Street

Chicago, IL 60618




A-12









 








[FORM OF ASSIGNMENT]




	 	 	 
	I or we assign to
	 	 
	PLEASE INSERT SOCIAL SECURITY OR
	 	 
	OTHER IDENTIFYING NUMBER
	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

(please print or type name and address)

	 	 
	 
	 	 
	 
	 	 
	 
	 
	 	 
	 
	 	 
	 
	the within Security and all rights thereunder, and hereby irrevocably constitute and appoint
	 
	 	 
	 
	 
	Attorney to transfer the Security on the books of the Company with full power of substitution in
the premises.






	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 







NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.



	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 





A-13









 





In connection with any transfer of this Security occurring prior to the date which is the earlier
of (i) the date of the declaration by the SEC of the effectiveness of a registration statement
under the Securities Act of 1933, as amended, covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the transfer) and (ii) the
Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not
utilized any general solicitation or general advertising in connection with, the transfer:




[Check One]





			
	(1)               	 	to the Company or any Subsidiary thereof, or






			
	(2)               	 	pursuant to, and in compliance with, the exemption from registration provided by Rule 144A
under the Securities Act of 1933, as amended, or






			
	(3)               	 	pursuant to, and in compliance with, the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended, or






			
	(4)               	 	pursuant to, and in compliance with, an exemption from registration under the Securities Act
of 1933, as amended, other than Rule 144A or Rule 144, or






			
	(5)               	 	pursuant to an effective registration statement under the Securities Act of 1933, as amended,




and, unless the box below is checked, the undersigned confirms that this Security is not being
transferred to an “affiliate” of the Company (an “Affiliate”) as defined in Rule 144 under the
Securities Act of 1933, as amended:



[  ] The transferee is an Affiliate of the Company. (If the Security is transferred to an
Affiliate, the restrictive legend must remain on the Security for at least two (2) years following
the date of the transfer.)



Unless one of the items (1) through (5) above is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person other than the registered
Holder thereof; provided, however, that if item (3) or (4) is checked, the Company or the Trustee
may require, prior to registering any such transfer of the Securities, in their sole discretion,
such written legal opinions, certifications and other information as the Trustee or the Company
have reasonably requested 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, as amended. If item (2) is checked, the purchaser must complete the certification below.



If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to
register this Security in the name of any person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in the Indenture shall have
been satisfied.




	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Signed:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

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






	 	 	 
	Signature Guarantee:
	 	 
	 

	 	 








A-14









 






TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED



The undersigned represents and warrants that it is purchasing this Security for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A and acknowledges that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from registration provided
by Rule 144A.




	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	NOTICE:
	 	To be executed by an executive officer






A-15









 






CONVERSION NOTICE



To convert this Security in accordance with the Indenture, check the box: o



To convert only part of this Security, state the principal amount to be converted (must be in
multiples of $1,000):




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

(Insert other person’s soc. sec. or tax I.D. no.)

	 	 
	 
	 	 
	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

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

	 	 
	 
	 
	 	 
	 


	 	 






	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Signature(s):	 	 
	 

	 	 
	 	 	 	 	 	 
	 

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






	 	 	 	 	 
	Signature(s) guaranteed by:
	 	 	 	 
	 

	 	 

(All signatures must be guaranteed by a guarantor institution
participating in the Securities Transfer Agents Medallion Program or
in such other guarantee program acceptable to the Trustee.)
	 	 






A-16









 






REPURCHASE NOTICE




Certificate No. of Security: ______________



If you want to elect to have this Security repurchased by the Company pursuant to Section 3.08 of
the Indenture, check the box: o



If you want to elect to have this Security repurchased by the Company pursuant to Section 3.09 of
the Indenture, check the box: o



If you want to elect to have only part of this Security repurchased by the Company pursuant to
Sections 3.08 or 3.09 of the Indenture, as applicable, state the principal amount to be so
purchased by the Company:




$_______________________

(in an integral multiple of $1,000)




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Signature(s):	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(Sign exactly as your name(s) appear(s) on
the other side of this Security)
	 
	 	 	 	 	 	 	 	 
	Signature(s) guaranteed by:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.)






A-17









 






SCHEDULE A




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(a)



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




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Principal amount of	 	 
	 

	 	Amount of decrease in
	 	Amount of Increase in
	 	this Global Security
	 	Signature or authorized
	 

	 	Principal amount of
	 	Principal amount of
	 	following such
	 	signatory of Trustee or
	Date of Exchange

	 	this Global Security
	 	this Global Security
	 	decrease or increase
	 	Note Custodian








 




			
	(a)	 	This is included in Global Securities only.






A-18









 








EXHIBIT B-1




FORM OF PRIVATE PLACEMENT LEGEND



THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, 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 ANY ACCOUNT 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 THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING
THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE
WITH THE SECURITIES ACT, AND



(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY, OR ANY
BENEFICIAL INTEREST HEREIN OR THEREIN, PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:





	(A)	 	TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR






	 	(B)	 	PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR
	 
	 	(C)	 	TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR
	 
	 	(D)	 	PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.




PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A DULY COMPLETED AND
SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE
TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS




B-1-1









 







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.



THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT,
DATED MAY 30, 2006, AMONG MIDWAY GAMES INC. AND THE INITIAL PURCHASER.





B-1-2









 








EXHIBIT B-2




FORM OF LEGEND FOR GLOBAL SECURITY



Any Global Security authenticated and delivered hereunder shall bear a legend (which would be in
addition to any other legends required in the case of a Restricted Security) in substantially the
following form:





THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




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




TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE.




B-2-1









 








EXHIBIT C




Form of Notice of Transfer Pursuant to Registration Statement




Midway Games Inc.

2704 W. Roscoe Street

Chicago, IL 60618

Attention: General Counsel




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette

MAC N9303-120

Minneapolis, MN 55479




			
	           Re:	 	Midway Games Inc. (the “Company”) 7.125% Convertible Senior Notes due 2026 (the “Securities”)







Ladies and Gentlemen:



Please be advised that ___ has transferred $___ aggregate principal amount of
the Securities and ___ shares of the Common Stock, $0.01 par value per share, of the
Company issued on conversion of the Securities (“Stock”) pursuant to an effective Shelf
Registration Statement on Form S-3 (File No. 333-___).



We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933
as amended, have been satisfied with respect to the transfer described above and that the
above-named beneficial owner of the Securities or Stock is named as a “Selling Securityholder” in
the Prospectus dated ___, or in amendments or supplements thereto, and that the aggregate
principal amount of the Securities and the number of shares of Stock transferred are [a portion of]
the Securities and Stock listed in such Prospectus, as amended or supplemented, opposite such
owner’s name.




	 	 	 	 	 
	 

	 	Very truly yours,	 	 
	 
	 	 	 	 
	 

	 	 

(Name)
	 	 







C-1









 








EXHIBIT D




Form of Opinion of Counsel in Connection with Registration of Securities




                                        , 200___




Wells Fargo Bank, National Association

Corporate Trust Services

Sixth and Marquette

MAC N9303-120

Minneapolis, MN 55479





			
	Re:    $75,000,000 principal amount of 7.125% Convertible

Senior Notes due 2026 of Midway Games Inc.





Ladies and Gentlemen:



We have acted as special counsel for Midway Games Inc., a Delaware corporation (the “Company”), in
connection with the registration by the Company of $75,000,000 principal amount of its 7.125%
Convertible Senior Notes due 2026 (the “Notes”) and the shares of the Company’s common stock, par
value $.01 per share, issuable upon conversion of the Notes (the “Shares”), pursuant to the
Company’s Registration Statement on Form S-3 (File No. 333-___) (the “Registration
Statement”). The Notes were issued pursuant to the Indenture (the “Indenture”), dated as of May
30, 2006, by and between the Company and Wells Fargo Bank, National Association, as trustee (the
“Trustee”). The Registration Statement was filed with the Securities and Exchange Commission (the
“Commission”) in connection with the resale of the Notes and the Shares issuable upon conversion of
the Notes by the selling securityholders listed therein. This letter is furnished to the Trustee
pursuant to Section 2.17 of the Indenture.



In connection with the opinions expressed herein, we have examined such documents, records and
matters of law as we have deemed relevant or necessary for purposes of such opinions. Based on the
foregoing and subject to the further limitations, qualifications and assumptions set forth herein,
we are of the opinion that the Registration Statement has become effective under the Securities Act
of 1933 (the “Securities Act”) and, to our Actual Knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that purpose are
pending or threatened by the Commission.



The opinions set forth above are subject to the following limitations, qualifications and
assumptions:



We have assumed, for purposes of the opinions expressed herein, the legal capacity of all natural
persons executing documents, the genuineness of all signatures, the authenticity of all original
and certified documents and the conformity to original or certified copies of all copies submitted
to us as conformed or reproduction copies.




D-1









 







The statements above with respect to the effectiveness of the Registration Statement under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement having
been issued and no proceedings for that purpose being pending or threatened by the Commission are
based solely on telephone conversations involving lawyers in our firm actively engaged in our
representation of the Company in this matter and members of the staff of the Commission, and such
statements are made as of the time of such conversations.



Insofar as matters are stated to be to our Actual Knowledge, our “Actual Knowledge” means the
actual knowledge of any lawyer in the Covered Lawyer Group; and the “Covered Lawyer Group” means
lawyers currently in our firm who have been actively involved in preparing the prospectus dated
___, 200___ and the transactions contemplated thereby or preparing this letter.



The opinions expressed herein are limited to the federal securities laws of the United States of
America as currently in effect, and we express no opinion as to the effect of the laws of any other
jurisdiction on the opinions expressed herein.



We express no opinion as to the compliance or noncompliance, or the effect of the compliance or
noncompliance, of the addressee or any other person or entity with any state or federal laws or
regulations applicable to each of them by reason of their status as or affiliation with a federally
insured depository institution. Our opinions are limited to those expressly set forth herein, and
we express no opinions by implication.



This letter is furnished by us to you solely for your benefit in your capacity as Trustee, upon the
understanding that we are not hereby assuming any professional responsibility to any other person
whatsoever, and this letter is not to be used, circulated, quoted or otherwise referred to for any
other purpose.





Very truly yours,




D-2