ex4_2.htm


    
      

    

     

    EXECUTION
VERSION

     

     

    
      
        

      

    

     

    Stillwater
Mining Company

     

    as
Issuer,

     

    Law
Debenture Trust Company of New York,

     

    as
Trustee

     

    and

     

    Deutsche
Bank Trust Company Americas

     

    as
Registrar, Conversion Agent and Paying Agent

     

     

    INDENTURE

     

    Dated as
of March 12, 2008

     

     

    1.875%
Convertible Senior Notes due 2028

     

    
      

    

     

     

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    CROSS-REFERENCE
TABLE

     

    
      	
              TIA

            	
              Indenture

            
	
              Section

            	
              Section

            
	
              310(a)(1)

            	
              8.10

            
	
              (a)(2)

            	
              8.10

            
	
              (a)(3)

            	
              N.A.

            
	
              (a)(4)

            	
              N.A.

            
	
              (a)(5)

            	
              N.A.

            
	
              (b)

            	
              8.3;
      8.8; 11.10

            
	
              (c)

            	
              N.A.

            
	
              311(a)

            	
              8.11

            
	
              (b)

            	
              8.11

            
	
              (c)

            	
              N.A.

            
	
              312(a)

            	
              2.5

            
	
              (b)

            	
              11.3

            
	
              (c)

            	
              11.3

            
	
              313(a)

            	
              8.6

            
	
              (b)(1)

            	
              N.A.

            
	
              (b)(2)

            	
              8.6

            
	
              (c)

            	
              8.6;
      11.2

            
	
              (d)

            	
              8.6

            
	
              314(a)

            	
              3.3;
      3.7; 7.1

            
	
              (b)

            	
              N.A.

            
	
              (c)(1)

            	
              11.4

            
	
              (c)(2)

            	
              11.4

            
	
              (c)(3)

            	
              N.A.

            
	
              (d)

            	
              N.A.

            
	
              (e)

            	
              11.5

            
	
              (f)

            	
              N.A.

            
	
              315(a)

            	
              8.1(b);
      8.1(h)

            
	
              (b)

            	
              8.5;
      11.2

            
	
              (c)

            	
              8.1(a)

            
	
              (d)

            	
              8.1(c)

            
	
              (e)

            	
              7.11

            
	
              316(a)(last
      sentence)

            	
              11.6

            
	
              (a)(1)(A)

            	
              7.5

            
	
              (a)(1)(B)

            	
              7.4

            
	
              (a)(2)

            	
              N.A.

            
	
              (b)

            	
              7.7

            
	
              (c)

            	
              10.7

            
	
              317(a)(1)

            	
              7.8

            
	
              (a)(2)

            	
              7.9

            
	
              (b)

            	
              2.4

            
	
              318(a)

            	
              8.1(h);
      11.1

            


    

    


    N.A.
means not applicable

    Note:
This Cross-Reference table shall not, for any purpose, be deemed to be part of
this Indenture.

    
      

        
          
             


          

          
            i

            
              

            

          

          
             


          

        


        
          TABLE OF
CONTENTS

        

        
          


        

        
          	 
      	 
      	 
      	 
      	
                  Page

                
	ARTICLE
      I
	
                  DEFINITIONS
      AND INCORPORATION BY REFERENCE

                
	 	 	 	 	 
	
                  SECTION
      1.1.

                	 
      	
                  Definitions

                	 
      	
                  1

                
	
                  SECTION
      1.2.

                	 
      	
                  Other
      Definitions

                	 
      	
                  8

                
	
                  SECTION
      1.3.

                	 
      	
                  Incorporation
      by Reference of Trust Indenture Act

                	 
      	
                  9

                
	
                  SECTION
      1.4.

                	 
      	
                  Rules
      of Construction

                	 
      	
                  10

                
	
                  SECTION
      1.5.

                	 
      	
                  Acts
      of Holders

                	 
      	
                  10

                
	 
	ARTICLE
      II
	
                  THE
      NOTES

                
	 	 	 	 	 
	
                  SECTION
      2.1.

                	 
      	
                  Form,
      Dating and Terms

                	 
      	
                  11

                
	
                  SECTION
      2.2.

                	 
      	
                  Execution
      and Authentication

                	 
      	
                  17

                
	
                  SECTION
      2.3.

                	 
      	
                  Registrar,
      Conversion Agent and Paying Agent

                	 
      	
                  18

                
	
                  SECTION
      2.4.

                	 
      	
                  Paying
      Agent To Hold Money and Securities in Trust

                	 
      	
                  19

                
	
                  SECTION
      2.5.

                	 
      	
                  Holder
      Lists

                	 
      	
                  19

                
	
                  SECTION
      2.6.

                	 
      	
                  Transfer
      and Exchange

                	 
      	
                  19

                
	
                  SECTION
      2.7.

                	 
      	
                  Mutilated,
      Destroyed, Lost or Stolen Notes

                	 
      	
                  21

                
	
                  SECTION
      2.8.

                	 
      	
                  Cancellation

                	 
      	
                  21

                
	
                  SECTION
      2.9.

                	 
      	
                  Payment
      of Interest; Defaulted Interest

                	 
      	
                  22

                
	
                  SECTION
      2.10.

                	 
      	
                  Computation
      of Interest

                	 
      	
                  23

                
	
                  SECTION
      2.11.

                	 
      	
                  CUSIP
      Numbers

                	 
      	
                  23

                
	
                  SECTION
      2.12.

                	 
      	
                  Calculations
      in Respect of the Notes

                	 
      	
                  23

                
	
                  SECTION
      2.13.

                	 
      	
                  Liquidated
      Damages Under Registration Rights Agreement

                	 
      	
                  23

                
	
                  SECTION
      2.14.

                	 
      	
                  Ranking

                	 
      	
                  23

                
	 
	ARTICLE
      III
	
                  COVENANTS

                
	 	 	 	 	 
	
                  SECTION
      3.1.

                	 
      	
                  Payment
      of Notes

                	 
      	
                  24

                
	
                  SECTION
      3.2.

                	 
      	
                  Maintenance
      of Office or Agency

                	 
      	
                  24

                
	
                  SECTION
      3.3.

                	 
      	
                  Compliance
      Certificate

                	 
      	
                  24

                
	
                  SECTION
      3.4.

                	 
      	
                  Reservation
      of Common Stock

                	 
      	
                  25

                
	
                  SECTION
      3.5.

                	 
      	
                  Issuance
      of Shares

                	 
      	
                  25

                
	
                  SECTION
      3.6.

                	 
      	
                  Transfer
      Taxes

                	 
      	
                  25

                
	
                  SECTION
      3.7.

                	 
      	
                  SEC
      and Other Reports

                	 
      	
                  25

                
	 
	ARTICLE
      IV
	
                  SUCCESSORS

                
	 	 	 	 	 
	
                  SECTION
      4.1.

                	 
      	
                  Merger,
      Consolidation or Sale of Assets

                	 
      	
                  25

                
	
                  SECTION
      4.2.

                	 
      	
                  Successor
      Corporation Substituted

                	 
      	
                  26

                


        

         

        
          
            
            

          

          
            ii

            
              

            

          

          
            
            

          

        

         

        
          	ARTICLE
      V
	
                   REDEMPTION
      OF NOTES

                
	 	 	 	 	 
	
                  SECTION
      5.1.

                	 
      	
                  Company’s
      Right to Redeem; Notices to Trustee

                	 
      	
                  26

                
	
                  SECTION
      5.2.

                	 
      	
                  Selection
      of Notes To Be Redeemed

                	 
      	
                  27

                
	
                  SECTION
      5.3.

                	 
      	
                  Notice
      of Redemption

                	 
      	
                  27

                
	
                  SECTION
      5.4.

                	 
      	
                  Effect
      of Notice of Redemption

                	 
      	
                  28

                
	
                  SECTION
      5.5.

                	 
      	
                  Deposit
      of Redemption Price

                	 
      	
                  28

                
	
                  SECTION
      5.6.

                	 
      	
                  Notes
      Redeemed in Part

                	 
      	
                  28

                
	
                  SECTION
      5.7.

                	 
      	
                  Purchase
      of Notes by the Company at Option of the Holder

                	 
      	
                  29

                
	
                  SECTION
      5.8.

                	 
      	
                  Purchase
      of Notes at Option of Holder Upon a Fundamental Change

                	 
      	
                  31

                
	
                  SECTION
      5.9.

                	 
      	
                  Effect
      of Purchase Notice or Fundamental Change Purchase Notice

                	 
      	
                  35

                
	
                  SECTION
      5.10.

                	 
      	
                  Deposit
      of Purchase Price or Fundamental Change Purchase Price

                	 
      	
                  36

                
	
                  SECTION
      5.11.

                	 
      	
                  Securities
      Purchased in Part

                	 
      	
                  36

                
	
                  SECTION
      5.12.

                	 
      	
                  Covenant
      to Comply with Securities Laws Upon Purchase of
    Securities36

                	 
      	 
      
	
                  SECTION
      5.13.

                	 
      	
                  Repayment
      to the Company

                	 
      	
                  37

                
	
                  SECTION
      5.14.

                	 
      	
                  No
      Fundamental Change Purchase Following Acceleration

                	 
      	
                  37

                
	 
	ARTICLE
      VI
	
                   CONVERSION
      OF NOTES

                
	 	 	 	 	 
	
                  SECTION
      6.1.

                	 
      	
                  Conversion
      Right and Conversion Rate

                	 
      	
                  37

                
	
                  SECTION
      6.2.

                	 
      	
                  Conversion
      Consideration..

                	 
      	
                  37

                
	
                  SECTION
      6.3.

                	 
      	
                  Exercise
      of Conversion Right

                	 
      	
                  38

                
	
                  SECTION
      6.4.

                	 
      	
                  Fractions
      of Shares

                	 
      	
                  39

                
	
                  SECTION
      6.5.

                	 
      	
                  Applicable
      Conversion Price Adjustments

                	 
      	
                  40

                
	
                  SECTION
      6.6.

                	 
      	
                  Notice
      of Adjustments of Conversion Price

                	 
      	
                  46

                
	
                  SECTION
      6.7.

                	 
      	
                  Limitation
      on Adjustments

                	 
      	
                  47

                
	
                  SECTION
      6.8.

                	 
      	
                  Effect
      of Reclassification, Consolidation, Merger or Sale on Conversion Privilege

                	 
      	 
      
	
                  SECTION
      6.9.

                	 
      	
                  Rights
      Issued in Respect of Common Stock

                	 
      	
                  49

                
	
                  SECTION
      6.10.

                	 
      	
                  Responsibility
      of Trustee and Conversion Agent for Conversion Provisions

                	 
      	 
      
	 
	ARTICLE
      VII
	
                   DEFAULTS
      AND REMEDIES

                
	 	 	 	 	 
	
                  SECTION
      7.1.

                	 
      	
                  Events
      of Default

                	 
      	
                  50

                
	
                  SECTION
      7.2.

                	 
      	
                  Acceleration

                	 
      	
                  51

                
	
                  SECTION
      7.3.

                	 
      	
                  Other
      Remedies

                	 
      	
                  52

                
	
                  SECTION
      7.4.

                	 
      	
                  Waiver
      of Past Defaults

                	 
      	
                  52

                
	
                  SECTION
      7.5.

                	 
      	
                  Control
      by Majority

                	 
      	
                  52

                
	
                  SECTION
      7.6.

                	 
      	
                  Limitation
      on Suits

                	 
      	
                  53

                
	
                  SECTION
      7.7.

                	 
      	
                  Rights
      of Holders to Receive Payment

                	 
      	
                  53

                
	
                  SECTION
      7.8.

                	 
      	
                  Collection
      Suit by Trustee

                	 
      	
                  53

                
	
                  SECTION
      7.9.

                	 
      	
                  Trustee
      May File Proofs of Claim

                	 
      	
                  53

                
	
                  SECTION
      7.10.

                	 
      	
                  Priorities

                	 
      	
                  54

                


        

         

        
          
            
            

          

          
            iii

            
              

            

          

          
            
            

          

        

         

        
          	
                  SECTION
      7.11.

                	 
      	
                  Undertaking
      for Costs

                	 
      	
                  54

                
	
                  SECTION
      7.12.

                	 
      	
                  Waiver
      of Stay or Extension Laws

                	 
      	
                  54

                
	
                  SECTION
      7.13.

                	 
      	
                  Additional
      Interest

                	 
      	
                  54

                
	 
	ARTICLE
      VIII 
	
                  TRUSTEE

                
	 	 	 	 	 
	
                  SECTION
      8.1.

                	 
      	
                  Duties
      of Trustee

                	 
      	
                  55

                
	
                  SECTION
      8.2.

                	 
      	
                  Rights
      of Trustee

                	 
      	
                  56

                
	
                  SECTION
      8.3.

                	 
      	
                  Individual
      Rights of Trustee

                	 
      	
                  58

                
	
                  SECTION
      8.4.

                	 
      	
                  Trustee’s
      Disclaimer

                	 
      	
                  58

                
	
                  SECTION
      8.5.

                	 
      	
                  Notice
      of Defaults

                	 
      	
                  58

                
	
                  SECTION
      8.6.

                	 
      	
                  Reports
      by Trustee to Holders

                	 
      	
                  58

                
	
                  SECTION
      8.7.

                	 
      	
                  Compensation
      and Indemnity

                	 
      	
                  59

                
	
                  SECTION
      8.8.

                	 
      	
                  Replacement
      of Trustee

                	 
      	
                  59

                
	
                  SECTION
      8.9.

                	 
      	
                  Successor
      Trustee by Merger

                	 
      	
                  60

                
	
                  SECTION
      8.10.

                	 
      	
                  Eligibility;
      Disqualification

                	 
      	
                  61

                
	
                  SECTION
      8.11.

                	 
      	
                  Preferential
      Collection of Claims Against Company

                	 
      	
                  61

                
	
                   

                	 
      	 
      	 
      	 
      
	 ARTICLE
      IX
	
                  SATISFACTION
      AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS

                
	 	 	 	 	 
	
                  SECTION
      9.1.

                	 
      	
                  Discharge
      of Liability on Notes

                	 
      	
                  61

                
	
                  SECTION
      9.2.

                	 
      	
                  Repayment
      to the Company

                	 
      	
                  61

                
	 
	ARTICLE
      X 
	
                  SUPPLEMENTAL
      INDENTURES AND AMENDMENTS

                
	 
	
                  SECTION
      10.1.

                	 
      	
                  Without
      Consent of Holders

                	 
      	
                  62

                
	
                  SECTION
      10.2.

                	 
      	
                  With
      Consent of Holders

                	 
      	
                  62

                
	
                  SECTION
      10.3.

                	 
      	
                  Execution
      of Supplemental Indentures, Agreements and Waivers

                	 
      	
                  63

                
	
                  SECTION
      10.4.

                	 
      	
                  Effect
      of Supplemental Indentures

                	 
      	
                  64

                
	
                  SECTION
      10.5.

                	 
      	
                  Compliance
      with Trust Indenture Act

                	 
      	
                  64

                
	
                  SECTION
      10.6.

                	 
      	
                  Reference
      in Notes to Supplemental Indentures

                	 
      	
                  64

                
	
                  SECTION
      10.7.

                	 
      	
                  Revocation
      and Effect of Consents and Waivers

                	 
      	
                  64

                
	
                  SECTION
      10.8.

                	 
      	
                  Notation
      on or Exchange of Notes

                	 
      	
                  65

                
	 
	ARTICLE
      XI
	
                   MISCELLANEOUS

                
	 
	
                  SECTION
      11.1.

                	 
      	
                  Trust
      Indenture Act Controls

                	 
      	
                  65

                
	
                  SECTION
      11.2.

                	 
      	
                  Notices

                	 
      	
                  65

                
	
                  SECTION
      11.3.

                	 
      	
                  Communication
      by Holders with Other Holders

                	 
      	
                  66

                
	
                  SECTION
      11.4.

                	 
      	
                  Certificate
      and Opinion as to Conditions Precedent

                	 
      	
                  66

                
	
                  SECTION
      11.5.

                	 
      	
                  Statements
      Required in Certificate or Opinion

                	 
      	
                  66

                
	
                  SECTION
      11.6.

                	 
      	
                  When
      Notes Disregarded

                	 
      	
                  66

                


        

         

        
          
            
            

          

          
            iv

            
              

            

          

          
            
            

          

        

         

        
          	
                  SECTION
      11.7.

                	 
      	
                  Rules
      by Trustee, Paying Agent and Registrar

                	 
      	
                  67

                
	
                  SECTION
      11.8.

                	 
      	
                  Governing
      Law

                	 
      	
                  67

                
	
                  SECTION
      11.9.

                	 
      	
                  No
      Recourse Against Others

                	 
      	
                  67

                
	
                  SECTION
      11.10.

                	 
      	
                  Successors

                	 
      	
                  67

                
	
                  SECTION
      11.11.

                	 
      	
                  Multiple
      Originals

                	 
      	
                  67

                
	
                  SECTION
      11.12.

                	 
      	
                  Not
      Responsible for Recitals or Issuance of Notes

                	 
      	
                  67

                
	
                  SECTION
      11.13.

                	 
      	
                  Waiver
      of Jury Trial

                	 
      	
                  67

                


        

         

      

    

    
      
        
           


        

        
          v

          
            

          

        

        
           


        

      

    

     

    
      
        	
                
                  EXHIBITS

                

              	 	 
      
	
                EXHIBIT
      A

              	 	
                Form
      of Note

              
	
                EXHIBIT
      B

              	 	
                Form
      of Conversion Notice

              
	
                EXHIBIT
      C

              	 	
                Form
      of Purchase Notice

              
	
                EXHIBIT
      D

              	 	
                Form
      of Fundamental Change Purchase Notice

              
	
                EXHIBIT
      E

              	 	
                Form
      of Certificate of Exchange

              


      

      
         

      

    

    
      
        
           


        

        
          vi

          
            

          

        

        
           


        

      

    

    


    INDENTURE,
dated as of March 12, 2008, between Stillwater Mining Company, a corporation
incorporated under the laws of the State of Delaware (the “Company”), as issuer, Law
Debenture Trust Company of New York, as trustee (the “Trustee”), and Deutsche Bank
Trust Company Americas, a New York banking corporation, as security registrar
(the “Registrar”),
conversion agent (the “Conversion Agent”) and paying
agent (the “Paying
Agent”).

    


    RECITALS
OF THE COMPANY

    


    The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of an unlimited aggregate principal amount of the
Company’s 1.875% Convertible Senior Notes due 2028, convertible into common
stock, par value $0.01 per share, of the Company (the “Notes”).

    


    All
things necessary have been done to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company and to make this Indenture a valid agreement of
each of the Company and the Trustee in accordance with the terms
hereof.

    


    Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of the Notes:

    


    ARTICLE
I 

    DEFINITIONS
AND INCORPORATION BY REFERENCE

    


    SECTION
1.1. Definitions.

    


    “Additional Notes” means
additional Notes (other than the Initial Notes), if any, issued under this
Indenture in accordance with Section 2.2 hereof, as part of the same series as
the Initial Notes.

    


    “Affiliate” means, with respect
to any specified Person, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. No individual shall be
deemed to be controlled by or under common control with any specified Person
solely by virtue of his or her status as an employee or officer of such
specified Person or of any other Person controlled by or under common control
with such specified Person.

    


    “Applicable Conversion Price”
means, at any determination date, the Conversion Price then in effect (rounded
to the nearest 1/10th of a cent), subject to adjustments set forth in this
Indenture.

    


    “Applicable Conversion Rate”
means, as of any date of determination, an amount equal to $1,000 divided by the
then Applicable Conversion Price on such date. As of the date hereof and subject
to adjustment pursuant to Section 6.5, the Conversion Rate with respect to the
Securities is approximately 42.5351 shares of Common Stock, rounded to the
nearest 1/10,000th of a share, for each $1,000 principal amount of the
Securities.


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    “Applicable Procedures” means,
with respect to any transfer or exchange of or for beneficial interests in, or
any repurchase or conversion of, any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.

    


    “Bankruptcy Law” means Title
11, United States Code or any similar federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or the law of any other jurisdiction relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such
law.

    


    “Beneficial Owner” has the
meaning assigned to such term in Rule 13d-3 under the Exchange Act, except that
in calculating the beneficial ownership of any particular “person” (as that term
is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed
to have beneficial ownership of all securities that such “person” has the right
to acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms “Beneficially Owns,” “Beneficially Owned” and “Beneficial
Ownership” have a corresponding meaning.

    


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

    


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

    


    “Business Day” means any day
other than (x) a Saturday, (y) a Sunday or (z) day on which banking institutions
in New York, New York are not required to be open.

    


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

    


    “Certificated Notes” or “Definitive Notes” means
securities that are in definitive, certificated form.

    


    “Closing Sale Price” means,
with respect to the Common Stock, on any date, the per share closing sale price
(or, if no closing sale price is reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and the
average ask prices) at 4:00 p.m. (New York City time) on such date as reported
in composite transactions for the principal U.S. securities exchange on which
the Common Stock is traded or, if the Common Stock is not listed on a U.S.
national or regional securities exchange, as reported by the National Quotation
Bureau Incorporated.

     

    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    “Common Stock” means the common
stock of the Company, par value $0.01 per share, as it exists on the date of
this Indenture and any shares of any class or classes of Capital Stock of the
Company resulting from any reclassification or reclassifications
thereof.

    


    “Company” means Stillwater
Mining Company, a corporation incorporated under the laws of Delaware, and,
subject to Article IV, its successors and assigns.

    


    “Continuing Directors” means,
as of any date of determination, any member of the Board of Directors of the
Company who:

    


    (1)     was
a member of such Board of Directors on the date of this Indenture;
or

    


    (2)     becomes
a member of the Board of Directors of the Company subsequent to that date and
was appointed, nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such appointment, nomination or
election.

    


    “Conversion Agent” means the
office or agency designated by the Company where Notes may be presented for
conversion, initially Deutsche Bank Trust Company Americas.

    


    “Conversion Price” shall equal
$1,000 divided by the Conversion Rate (rounded to the nearest 1/10th of a cent),
subject to adjustments set forth in this Indenture.

    


    “Corporate Trust Office” means
the designated office of Deutsche Bank Trust Company Americas at which at any
time its corporate trust business shall be administered, which office at the
date of this Indenture is located at 60 Wall Street, New York, NY 10005,
Attention: Trust and Securities Services, or such other address as Deutsche Bank
Trust Company Americas may designate from time to time by notice to the Holders
and the Company, or the designated corporate trust office of the Trustee or any
successor Trustee (or such other address as such Trustee or successor Trustee
may designate from time to time by notice to the Holders and the
Company).

    


    “Current Market Price” means
with respect to any date of determination, the Closing Sale Price of the Common
Stock on the date of determination.

    


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

    


    “Depositary” means The
Depository Trust Company, its nominees and their respective successors and
assigns, or such other depositary institution hereafter appointed by the
Company.

    


    “Dividend Adjustment Amount”
means the full amount of the dividend or distribution to the extent payable in
cash applicable to one share of the Common Stock.

    


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

     

    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


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

    


    “Global Notes” means Notes that
are in the form of the Note attached hereto as Exhibit A and that are issued to
a Depositary.

    


    “guarantee” means, as applied
to any obligation, (i) a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner, of any part or all of such obligation and (ii) an
agreement, direct or indirect, contingent or otherwise, the practical effect of
which is to assure in any way the payment or performance (or payment of damages
in the event of non-performance) of all or any part of such obligation. A
guarantee shall include, without limitation, any agreement to maintain or
preserve any other Person’s financial condition or to cause any other Person to
achieve certain levels of operating results.

    


    “Holder” or “Holders” means a Person or
Persons in whose name a Note is registered.

    


    “Indebtedness” of any Person
means indebtedness for borrowed money and indebtedness under purchase money
Liens or conditional sales or similar title retention agreements, in each case
where such indebtedness has been created, incurred, or assumed by such Person to
the extent such indebtedness would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP, guarantees by such Person of such
indebtedness, and indebtedness for borrowed money secured by any Lien, pledge or
other lien or encumbrance upon property owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness.

    


    “Indenture” means this
Indenture as amended or supplemented from time to time, including, for all
purposes of this instrument and any supplemental indenture or amendment hereto,
and upon qualification thereof, the provisions of the TIA that are deemed to be
a part of and govern this instrument and any such supplemental indenture or
amendment, respectively.

    


    “Initial Conversion Price”
means, in respect of each $1,000 principal amount of Notes, $23.51 per share of
Common Stock.

    


    “Initial Notes” means the
$181,500,000 aggregate principal amount of Notes issued under this Indenture on
the date of this Indenture.

    


    “Interest Payment Date” has the
meaning set forth in the form of Note attached hereto as Exhibit A.

    


    “Lien” means any security
interest, pledge, lien or other encumbrance.

    


    “Liquidated Damages” means
“Liquidated Damages” as specified in the Registration Rights
Agreement.

     

    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

    


    “Market Disruption Event” means
the occurrence or existence for more than one-half hour period in the aggregate
on any scheduled trading day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the NYSE of otherwise) in the Common Stock or in any options,
contracts or futures contracts relating to the Common Stock, and such suspension
or limitation occurs or exists at any time before 1:00 p.m. (New York City time)
on such day.

    


    “Maturity” means, with respect
to any Note, the date on which the principal of such Note becomes due and
payable as therein or herein provided, whether at Stated Maturity, or by
declaration of acceleration, offer to repurchase pursuant to Sections 5.7 and
5.8 or otherwise.

    


    “Note” or “Notes” has the meaning stated
in the first recital of this Indenture or, as the case may be, means Notes that
have been authenticated and delivered pursuant to this Indenture, including the
Global Note(s). The Initial Notes and the Additional Notes, if any, shall be
treated as a single class for all purposes under this Indenture, and unless the
context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes.

    


    “Notes Custodian” means the
Deutsche Bank Trust Company Americas or any Person appointed by the Trustee to
act as custodian of Global Notes for the Depositary.

    


    “NYSE” means The New York Stock
Exchange and any successor market or exchange.

    


    “Officer” means a Chairman of
the Board, Chief Executive Officer, an Executive Vice President, a Senior Vice
President, the President, a Vice President, the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer of the Company.

    


    “Officers’ Certificate” means a
certificate in a form reasonably acceptable to the Trustee and signed by any two
Officers of the Company. Each such certificate shall include the statements
provided for in Section 11.5, if and to the extent required by the provisions of
Section 11.4.

    


    “Opinion of Counsel” means a
written opinion from legal counsel reasonably acceptable to the Trustee; provided, however, that
counsel that is an employee of or counsel to the Company shall be acceptable to
the Trustee. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required by the provisions of Section
11.4.

    


    “Outstanding”, when used with
respect to Notes, means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture, except:

    


    (1)     Notes
theretofore cancelled by the Registrar or delivered to the Registrar for
cancellation (including Notes converted and cancelled pursuant to this
Indenture);

    


    (2)     Notes
for whose payment money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Notes, on and after such Redemption
Date or Stated Maturity, and on and after the Business Day following the
Redemption Date, the Fundamental Change Repurchase Date or any Purchase Date, as
the case may be; and

    


    
      
        
           


        

        
          5

          
            

          

        

        
           


        

      

    

    


    (3)    
Notes which have been paid pursuant to Section 2.7 or in exchange for or in lieu
of which other Notes have been authenticated and delivered pursuant to this
Indenture, other than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes are held by a
protected purchaser in whose hands such Notes are valid obligations of the
Company;

    


    provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder, Notes owned by the
Company or any other obligor upon the Notes or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver
or other action, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.

    


    Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers’ Certificate listing and identifying all Notes, if any,
known by the Company to be owned by, held by or for the account of the Company,
or any other obligor on the Notes or any Affiliate of the Company or such
obligor, and subject to the provisions of Section 8.2, the Trustee shall be
entitled to accept such Officers’ Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are
Outstanding for the purpose of any such determination.

    


    “Paying Agent” means the office
or agency designated by the Company where Notes may be presented for payment,
initially Deutsche Bank Trust Company Americas.

    


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

    


    “protected purchaser” has the
meaning set forth in Section 2.7.

    


    “Qualifying Fundamental Change”
means either (i) any Change in Control included in clause (i) or (ii) of the
definition of Change in Control, or (ii) any Termination of Trading. A merger,
consolidation, assignment, conveyance, sale, transfer, lease or other
disposition otherwise constituting a Change in Control will not constitute a
Qualifying Fundamental Change if at least 90% of the consideration paid for the
Common Stock in that transaction, excluding Cash payments for fractional shares
and Cash payments made pursuant to dissenters’ appraisal rights, consists of
shares of common stock, depositary receipts or other certificates representing
common equity interests traded on a U.S. national securities exchange, or that
will be so traded immediately following the merger or consolidation, and, as a
result of the merger or consolidation, the Notes become convertible into such
shares of such common stock, depositary receipts or other certificates
representing common equity interests.

    


    
      
        
           


        

        
          6

          
            

          

        

        
           


        

      

    

     

    “Record Date Period” means the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date.

    


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

    


    “Registrar” means the office or
agency maintained by the Company where Notes may be presented for registration
of transfer or exchange, initially Deutsche Bank Trust Company
Americas.

    


    “Regular Record Date” has the
meaning set forth in the form of Note attached hereto as Exhibit A.

    


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

    


    “Registration Rights Agreement”
means the Registration Rights Agreement, dated as of March 12, 2008, between the
Company and Deutsche Bank Securities Inc.

    


    “SEC” means the Securities and
Exchange Commission.

    


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

    


    “Significant Subsidiary” means
any Subsidiary that would be a “significant subsidiary” of the Company within
the meaning of Rule 1-02 of Regulation S-X promulgated by the SEC.

    


    “Stated Maturity” when used
with respect to the Notes, means March 15, 2028.

    


    “Subsidiary” means any
corporation or other business entity of which at least a majority of the
outstanding stock or membership or other interests, as the case may be, having
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or other governing body of such corporation or business
entity or otherwise direct the business and affairs of said corporation or
business entity is at the time owned or controlled by the Company, or by the
Company and one or more Subsidiaries, or by any one or more
Subsidiaries.

    


    “Termination of Trading” means
the Common Stock (or other securities into which the Securities are then
convertible) are neither approved for listing on a U.S. national securities
exchange nor approved for quotation on an established over-the-counter
securities market in the United States, or cease to be traded or quoted in
contemplation of a delisting or withdrawal of approval.

     

    
      
        
           


        

        
          7

          
            

          

        

        
           


        

      

    

    


    “TIA” or “Trust Indenture Act” means the
Trust Indenture Act of 1939 (15 U.S.C. Sec.Sec. 77aaa-77bbbb), as in effect from
time to time.

    


    “Trading Day” means a day on
which (i) there is no Market Disruption Event and (ii) the NYSE or, if the
Common Stock is not listed on the NYSE, the principal other U.S. national or
regional securities exchange on which the Common Stock is then listed is open
for trading or, if the Common Stock is not so listed, any business day. So long
as the Common Stock is listed on a U.S. national or regional securities
exchange, a “trading day” only includes those days that have a scheduled closing
time of 4:00 p.m. (New York City time) or the then standard closing time for
regular trading on the relevant exchange or trading system.

    


    “Trustee” means the Person
identified as “Trustee” in the first paragraph hereof and, subject to the
provisions of Article VIII, shall also include any successor
trustee.

    


    “Uniform Commercial Code” means
the New York Uniform Commercial Code as in effect from time to time in the State
of New York.

    


    “Voting Stock” of any specified
Person as of any date means the Capital Stock or other interests then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of the Board of Directors, managers or
trustees.

    


    SECTION
1.2. Other
Definitions.


     

    
      	
              Term:

            	 	
              Defined
      in:

            
	
              “Act”

            	 	
              Section
      1.5

            
	
              “Additional
      Interest”

            	 	
              Section
      7.13

            
	
              “Additional
      Shares”

            	 	
              Section
      6.5(e)

            
	
              “Agent
      Member”

            	 	
              Section
      2.1(e)(ii)

            
	
              “Authenticating
      Agent”

            	 	
              Section
      2.2

            
	
              “Cash”

            	 	
              Section
      5.7(a)

            
	
              “Change
      in Control”

            	 	
              Section
      5.8(a)

            
	
              “Company
      Order”

            	 	
              Section
      2.2

            
	
              “Company
      Notice”

            	 	
              Section
      5.7(b)

            
	
              “Company
      Notice Date”

            	 	
              Section
      5.7(b)

            
	
              “Conversion
      Date”

            	 	
              Section
      6.3(a)

            
	
              “Conversion
      Notice”

            	 	
              Section
      6.3(a)

            
	
              “Conversion
      Rate”

            	 	
              Section
      6.1(c)

            
	
              “Custodian”

            	 	
              Section
      7.1

            
	
              “Defaulted
      Interest”

            	 	
              Section
      2.9

            
	
              “Effective
      Date”

            	 	
              Section
      6.5(e)

            
	
              “Event
      of Default”

            	 	
              Section
      7.1

            
	
              “Expiration
      Date”

            	 	
              Section
      6.5(a)(6)

            
	
              “Expiration
      Time”

            	 	
              Section
      6.5

            
	
              “Fundamental
      Change”

            	 	
              Section
      5.8(a)

            
	
              “Fundamental
      Change Notice”

            	 	
              Section
      5.8(b)

            


    

     

    
      
        
           


        

        
          8

          
            

          

        

        
           


        

      

    

     

    
      	
              Term:

            	 	
              Defined
      in:

            
	
              “Fundamental
      Change Notice Date”

            	 	
              Section
      5.8(b)

            
	
              “Fundamental
      Change Purchase Date”

            	 	
              Section
      5.8(a)

            
	
              “Fundamental
      Change Purchase Notice”

            	 	
              Section
      5.8(c)

            
	
              “Fundamental
      Change Purchase Price”

            	 	
              Section
      5.8(a)

            
	
              “Note
      Register”

            	 	
              Section
      2.3

            
	
              “Permitted
      Holders”

            	 	
              Section
      5.8(a)(5)

            
	
              “Purchase
      Date”

            	 	
              Section
      5.7(a)

            
	
              “Purchase
      Price”

            	 	
              Section
      5.7(a)

            
	
              “Purchase
      Notice”

            	 	
              Section
      5.7(a)

            
	
              “Purchased
      Shares”

            	 	
              Section
      6.5(a)(6)

            
	
              “Redemption
      Price”

            	 	
              Section
      5.1

            
	
              “Reference
      Property”

            	 	
              Section
      6.8(a)

            
	
              “Resale
      Restricted Termination Date”

            	 	
              Section
      2.1(d)

            
	
              “Restricted
      Securities”

            	 	
              Section
      2.1(d)

            
	
              “Rights
      Plan”

            	 	
              Section
      6.5(a)

            
	
              “Settlement”

            	 	
              Section
      6.3(c)

            
	
              “Special
      Interest Payment Date”

            	 	
              Section
      2.9

            
	
              “Special
      Record Date”

            	 	
              Section
      2.9

            
	
              “Spin-Off”

            	 	
              Section
      6.5(a)(5)

            
	
              “Stock
      Price”

            	 	
              Section
      6.5(e)

            
	
              “Triggering
      Distribution”

            	 	
              Section
      6.5(a)(4)

            
	
              “Trigger
      Event”

            	 	
              Section
      6.9

            
	
              “Unissued
      Shares”

            	 	
              Section
      5.8(a)

            


    

    


    


    SECTION
1.3. Incorporation by
Reference of Trust Indenture Act. Upon qualification of this Indenture
under the TIA, this Indenture shall become subject to the mandatory provisions
of the TIA, which shall be incorporated by reference in and made a part of this
Indenture. The following TIA terms have the following meanings:

    


    (1)   “indenture
securities” means the Notes.

    


    (2)    “indenture
security holder” means a Holder.

    


    (3)    “indenture
to be qualified” means this Indenture.

    


    (4)    “indenture
trustee” or “institutional trustee” means the Trustee.

    


    (5)    “obligor”
on the indenture securities means the Company and any other obligor on the
indenture securities.

    


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

     

    
      
        
           


        

        
          9

          
            

          

        

        
           


        

      

    

    


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

    


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

    


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

    


    (3)     “or”
is not exclusive;

    


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

    


    (5)      the
principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with
GAAP;

    


    (6)      the
table of contents and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict any of the terms or
provisions hereof;

    


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

    


    (8)      all
references to “$” or “dollars” shall refer to the lawful currency of the United
States of America;

    


    (9)      the
words “include,” “included” and “including” as used herein shall be deemed in
each case to be followed by the phrase “without limitation,” if not expressly
followed by such phrase or the phrase “but not limited to”;

    


    (10)   
references to sections of or rules under the Securities Act, the Exchange Act or
the TIA shall be deemed to include substitute, replacement or successor sections
or rules adopted by the SEC from time to time thereunder; and

    


    (11)    any
reference to a Section or Article refers to such Section or Article of this
Indenture unless otherwise indicated.

    


    SECTION
1.5. Acts of
Holders.

    


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

     

    
      
        
           


        

        
          10

          
            

          

        

        
           


        

      

    

     

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

    


    (c)     The
ownership of Notes shall be proved by the register for the Notes.

    


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

    


    (e)    
 If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.

    


    ARTICLE
II THE NOTES

    


    SECTION
2.1. Form, Dating and
Terms.

    


    (a)    
The Notes shall be known and designated as 1.875% Convertible Senior Notes due
2028. Pursuant to the provisions of Article VI, the Notes shall be convertible
into Common Stock. Subject to the terms of this Indenture the Company may, at
its option, without consent from the Holders, issue Additional Notes from time
to time. For all purposes under the Indenture, the term “Notes” shall include the
Initial Notes and any such Additional Notes issued after the date of this
Indenture.

    


    
      
        
           


        

        
          11

          
            

          

        

        
           


        

      

    

     

    Notes may
be authenticated and delivered upon registration or transfer of, or in lieu of,
other Notes pursuant to Section 2.6, 2.7 or 10.8.

    


    The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage, in addition to those set forth on Exhibit A. The Company and the
Trustee shall approve the forms of the Notes and any notation, endorsement or
legend on them. Each Note shall be dated the date of its authentication. The
terms of the Note set forth in Exhibit A are part of the terms of this Indenture
and, to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to be bound by such
terms.

    


    The
principal of and interest on the Notes shall be payable at the office or agency
of the Company maintained for such purpose in the City of New York, or at such
other office or agency of the Company as may be maintained for such purpose
pursuant to Section 2.3. Payments in respect of a Certificated Note (including
principal and interest) shall be made in U.S. dollars at the office of the
Trustee. At the Company’s option, however, the Company may make such payments by
mailing a check to the registered address of each Holder thereof as such address
as shall appear on the Note Register or with respect to Notes represented by a
Global Note, by wire transfer of immediately available funds to the accounts
specified by the Depositary. If a payment date is a date other than a Business
Day, payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening
period.

    


    The Notes
shall be initially issued in the form of one or more permanent Global Notes,
without interest coupons, substantially in the form of Exhibit A. Such Global
Notes shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Notes Custodian for the Depositary for the accounts of
participants in the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of a
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Notes Custodian, as hereinafter provided. Notwhithstanding
anything herein to the contrary, the Company may, at any time and in its sole
discretion, exchange any interest in the permanent Global Notes Benefically
Owned by an Affiliate of the Company for Certificated Notes and upon the written
request of the Company, togethor with such supporting documention as the Trustee
may request, the Trustee shall authenticate and deliver, to each such Beneficial
Owner identified by the Comany in exchange for its beneficial interest in such
Global Note, an equal aggregate principal amount of Certificated
Notes.

    


    (b)    
The Notes shall be issuable only in fully registered form, without coupons, and
only in denominations of $1,000 and $1,000 integral multiples
thereof.

    


    (c)     
Every Note that bears or is required under this Section 2.1(d) to bear the
legend set forth in this Section 2.1(d) (together with any Common Stock issued
upon conversion of the Notes and required to bear the legend set forth in
Section 2.1(e), collectively, the “Restricted Securities”) shall
be subject to the restrictions on transfer set forth in this Section 2.1(d)
(including the legend set forth below), unless such restrictions on transfer
shall be eliminated or otherwise waived by written consent of the Company, and
the Holder of each such Restricted Security, by such Holder’s acceptance
thereof, agrees to be bound by all such restrictions on transfer. As used in
Section 2.1(d) and Section 2.1(g), the term “transfer” encompasses any sale,
pledge, transfer or other disposition whatsoever of any Restricted
Security.

     

    
      
        
           


        

        
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    Until the
date (the “Resale Restriction
Termination Date”) the later of (1) the date that is one year after the
last date of original issuance of the Notes, or such other period of time as
permitted by Rule 144 under the Securities Act or any successor provision
thereto, and (2) such later date, if any, as may be required by applicable laws,
any certificate evidencing such Note (and all securities issued in exchange
therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion thereof which shall bear the legend set forth in Section 2.1(g), if
applicable) shall bear a legend in substantially the following form (unless such
Notes have been transferred pursuant to a registration statement that has become
or been declared effective under the Securities Act and that continues to be
effective at the time of such transfer, pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force or any
other exemption under the Securities Act, or unless otherwise agreed by the
Company in writing, with notice thereof to the Trustee):

    


    THIS
SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

    


    1.       REPRESENTS
THAT IT AND 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
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT:

     

    (A)    TO
US OR ANY OF OUR SUBSIDIARIES, 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

     

    
      
        
           


        

        
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    (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 (2)(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.

    


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

    


    Any Note
(or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may,
upon surrender of such Note for exchange to the Registrar in accordance with the
provisions of this Section 2.1, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.1(d). The Company shall notify the Trustee
upon the occurrence of the Resale Restriction Termination Date and promptly
after a Registration Statement with respect to the Notes or any Common Stock
issued upon conversion of the Notes has been declared effective under the
Securities Act.

    


    (d) The
following book-entry provisions shall apply to Global Notes deposited with the
Notes Custodian:

    


    (1)   
 Each Global Note initially shall (x) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary and (y) be
delivered to the Notes Custodian.

    


    (2)     Except
as provided herein, members of, or participants in, the Depositary (“Agent Members”) shall have no
rights under this Indenture with respect to any Global Note held on their behalf
by the Depositary or by the Notes Custodian or under such Global Note, and the
Depositary may be treated by the Company, the Trustee, the Notes Custodian and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of the Depositary
governing the exercise of the rights of a Beneficial Owner of an interest in any
Global Note.

     

    
      
        
           


        

        
          14

          
            

          

        

        
           


        

      

    

    


    (3)     The
registered Holder of a Global Note may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this
Indenture or the Notes.

    


    (4)      In
connection with the transfer of an entire Global Note to Beneficial Owners
pursuant to Section 2.1(f), such Global Note shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each Beneficial Owner identified by the
Depositary in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Certificated Notes of authorized denominations.
The definitive securities shall be printed, lithographed or engraved or produced
by any combination of these methods, if required by any securities exchange on
which the Notes may be listed, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by the
officers executing such Notes, as evidenced by their execution of such
Notes.

    


    (5)     Any
Holder of a Global Note shall, by acceptance of such Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only
through a book-entry system maintained by (a) the Holder of such Global Note (or
its agent) or (b) any Holder of a beneficial interest in such Global Note, and
that ownership of a beneficial interest in such Global Note shall be required to
be reflected in a book entry.

     

    (e)     Owners
of beneficial interests in Global Notes will not be entitled to receive
Certificated Notes; provided,
however, Certificated Notes shall be transferred to all Beneficial Owners
in exchange for their beneficial interests in a Global Note if the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Note or the Depositary ceases to be a clearing agency registered
under the Exchange Act, at a time when the Depositary is required to be so
registered in order to act as Depositary, and in each case a successor
depositary is not appointed by the Company within 90 days of such notice. The
Company shall promptly deliver a copy of any notice referred to in the foregoing
sentence to the Trustee.

    


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

     

    
      
        
           


        

        
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    THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

    


    (1)     REPRESENTS
THAT IT AND 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
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

    


    (A)   
TO US OR ANY OF OUR SUBSIDIARIES, 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 (2)(D) ABOVE, THE COMPANY,
THE TRUSTEE AND THE REGISTRAR 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.

    


    Any such
Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing
such shares of Common Stock for exchange in accordance with the procedures of
the transfer agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock, which shall
not bear the restrictive legend required by this Section 2.1(g).

     

    
      
        
           


        

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

    


    (h)
Notwithstanding any provision of Section 2.1 to the contrary, in the event Rule
144 as promulgated under the Securities Act (or any successor rule) is amended
to change the one-year holding period thereunder (or the corresponding period
under any successor rule), from and after receipt by the Trustee of the
Officers’ Certificate and Opinion of Counsel provided for in this Section
2.1(i), (i) each reference in Section 2.1(d) to “one year” and in the
restrictive legend set forth in such paragraph to “ONE YEAR” shall be deemed for
all purposes hereof to be references to such changed period, (ii) each reference
in Section 2.1(g) to “one year” and in the restrictive legend set forth in such
paragraph to “ONE YEAR” shall be deemed for all purposes hereof to be references
to such changed period, and (iii) all corresponding references in the Notes
(including the definition of Resale Restriction Termination Date) and the
restrictive legends thereon shall be deemed for all purposes hereof to be
references to such changed period, provided that such changes shall not become
effective if they are otherwise prohibited by, or would otherwise cause a
violation of, the then-applicable federal securities laws. The provisions of
this Section 2.1(i) will not be effective until such time as the Opinion of
Counsel and Officers’ Certificate have been received by the Trustee hereunder.
This Section 2.1(i) shall apply to successive amendments to Rule 144 (or any
successor rule) changing the holding period thereunder.

    


    SECTION
2.2. Execution and
Authentication. An Officer shall sign the Notes for the Company by manual
or facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall
be valid nevertheless.

    


    A Note
shall not be valid until an authorized signatory of the Trustee manually
authenticates the Note. The signature of the Trustee on a Note shall be
conclusive evidence that such Note has been duly and validly authenticated and
issued under this Indenture.

    


    The
Trustee will, upon receipt of a written order of the Company signed by an
Officer of the Company (a “Company Order”), authenticate
Notes, including any Additional Notes, in an unlimited aggregate principal
amount, subject to the provisions of this Indenture and provided that no such
Additional Notes may be issued unless fungible with the Initial Notes for U.S.
tax purposes. Each Company Order will specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated and, in the
case of Additional Notes, the issue price of such Notes. The Company may also
from time to time repurchase the Notes in open market purchases or negotiated
transactions without any notice to Holders. The Company may, to the extent
permitted by law, reissue or resell any such Notes or, at the option of the
Company, deliver them for cancellation to the Registrar.

     

    
      
        
           


        

        
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    The
Trustee may appoint an agent (the “Authenticating Agent”)
reasonably acceptable to the Company to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.

    


    In case
the Company pursuant to Article IV shall be consolidated or merged with or into
any other Person or shall convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
successor Person resulting from such consolidation, or surviving such merger, or
into which the Company shall have been merged, or the Person that shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article IV, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Order of the successor Person, shall authenticate
and deliver Notes as specified in such order for the purpose of such exchange.
If Notes shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.2 in exchange or substitution for or
upon registration of transfer of any Notes, such successor Person, at the option
of the Holders but without expense to them, shall provide for the exchange of
all Notes at the time outstanding for Notes authenticated and delivered in such
new name.

    


    SECTION
2.3. Registrar,
Conversion Agent and Paying Agent. Deutsche Bank Trust Company Americas
shall initially serve as the Registrar, Conversion Agent and Paying Agent for
the Notes. The Registrar, the Conversion Agent and the Paying Agent shall
maintain an office or agency in the Borough of Manhattan, The City of New York.
If the Registrar, the Conversion Agent and the Paying Agent are not the same
party, the Registrar, the Conversion Agent and the Paying Agent shall each
maintain an office or agency in the Borough of Manhattan, The City of New York.
The Registrar shall keep a register of the Notes and of their transfer and
exchange (the “Note
Register”). The Company may have one or more co-registrars and one or
more additional conversion agents and paying agents. The term Paying Agent
includes any additional paying agents, the term Conversion Agent includes any
additional conversion agents and the term Registrar includes any co-registrar.
The Company may appoint and change any Paying Agent, Conversion Agent or
Registrar without prior notice to any Holder.

    


    The
Company shall enter into an appropriate agency agreement with any Registrar,
Conversion Agent or Paying Agent not a party to this Indenture, which upon
qualification of the Indenture under the TIA shall incorporate the terms of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such agent. The Company shall notify the Trustee and Deutsche Bank Trust
Company Americas, as long as they remain a Registrar, Conversion Agent or Paying
Agent, in writing of the name and address of each such agent. If the Company
fails to maintain a Registrar, Conversion Agent or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 8.7. The Company or any of its domestically incorporated
Subsidiaries may act as Paying Agent, Conversion Agent or
Registrar.

     

    
      
        
           


        

        
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    The
Company may remove any Registrar, Conversion Agent or Paying Agent upon written
notice to such Registrar, Conversion Agent or Paying Agent and to the Trustee;
provided, however, that
no such removal shall become effective until (i) acceptance of any appointment
by a successor as evidenced by an appropriate agreement entered into by the
Company and such successor Registrar, Conversion Agent or Paying Agent, as the
case may be, and such agreement is delivered to the Trustee or (ii) notification
to the Trustee that the Trustee shall serve as Registrar, Conversion Agent or
Paying Agent until the appointment of a successor in accordance with clause (i)
above. The Registrar, Conversion Agent or Paying Agent may resign at any time
upon written notice to the Company and the Trustee.

    


    SECTION
2.4. Paying Agent To
Hold Money and Securities in Trust. Except as otherwise provided herein,
on or prior to 11:00 a.m. (New York City time) on each due date of payment in
respect of any Note, the Company shall deposit with the Paying Agent a sum of
money (in immediately available funds) sufficient to make such payments when
due. The Company shall require each Paying Agent (other than the Trustee or
Deutsche Bank Trust Company Americas) to agree in writing that such Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
such Paying Agent for the payment of principal of, interest on, and other
payments in respect of the Notes, and shall notify the Trustee in writing of any
default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund for the benefit of the Holders
of the Notes. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Notes.

    


    SECTION
2.5. Holder
Lists. The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and upon qualification of the Indenture under the TIA shall otherwise
comply with TIA Sec. 312(a). If the Trustee is not the Registrar or to the
extent otherwise required under the TIA upon qualification of the Indenture
thereunder, the Company, on its own behalf, shall furnish to the Trustee, in
writing at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may reasonably request in writing within 15
days, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders and the Company shall otherwise
comply with TIA Sec. 312(a) upon qualification of the Indenture under the
TIA.

    


    SECTION
2.6. Transfer and
Exchange.

    


    (a) The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.1 or this Section 2.6 until the
Notes have matured and been paid in full. 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 regular business hours upon the
giving of reasonable prior written notice to the Registrar.

     

    
      
        
           


        

        
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    (b)     The
following obligations with respect to transfers and exchanges of Notes shall
apply:

    


    (1)     To
permit registrations of transfers and exchanges, the Company shall, subject to
the other terms and conditions of this Article II, execute and the Trustee shall
upon receipt of a Company Order, authenticate Certificated Notes and Global
Notes at the Registrar’s request.

    


    (2)   
 No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to Section
3.6).

    


    (3)     The
Registrar shall not be required to register the transfer of or exchange of any
Note (A) for a period beginning at the opening of business 15 days before any
selection of Notes for repurchase and ending at the close of business on the day
notice of such repurchase is deemed to have been given to all Holders of Notes
to be so repurchased or (B) selected for repurchase in whole or in
part.

    


    (4)      Except
as provided herein, prior to the due presentation for registration of transfer
of any Note, the Company, the Trustee, Paying Agent, the Conversion Agent or the
Registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Conversion Agent or the Registrar shall be affected by notice
to the contrary.

    


    (5)      All
Notes issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.

    


    (c)     If
any Holder of a beneficial interest in a Global Note proposes to exchange such
beneficial
interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes
delivery thereof in the form of a Definitive Note, then, upon receipt by the
Registrar of a certificate
from such Holder in the form of Exhibit E hereto. The Trustee shall cause the
aggregate
principal amount of the applicable Global Note to be reduced accordingly and an
endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction
of the Trustee to reflect such reduction. The Company shall execute and the
Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Global
Note pursuant to this Section 2.6(c) shall be registered in such name or names
and in such
authorized denomination or denominations as the Holder of such beneficial
interest shall instruct
the Registrar through instructions from the Depositary and the Agent Members The
Trustee
shall deliver such Definitive Notes to the Persons in whose names such Notes are
so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Global
Note pursuant to this Section 2.6(c) shall bear the Legend and shall be subject
to all restrictions on transfer contained therein.

     

    
      
        
           


        

        
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    SECTION
2.7. Mutilated,
Destroyed, Lost or Stolen Notes. If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, subject to compliance with the provisions of the
next sentence of this Section 2.7, the Company shall issue and the Trustee, upon
Company Order, shall authenticate a replacement Note if the requirements of
Section 8-405 of the Uniform Commercial Code are met such that the Holder (a)
notifies the Company, the Registrar and the Trustee within a reasonable time
after such Holder has notice of such loss, destruction or wrongful taking and
the Registrar has not registered a transfer prior to receiving such
notification, (b) makes such request to the Company prior to the Company having
notice that the Note has been acquired by a protected purchaser as defined in
Section 8-303 of the Uniform Commercial Code (a “protected purchaser”), and (c)
satisfies any other reasonable requirements of the Company, the Registrar and
the Trustee. If required by the Registrar or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Company and the
Registrar to protect the Company, the Trustee, the Paying Agent, the Conversion
Agent and the Registrar from any loss which any of them may suffer if a Note is
replaced. In the absence of notice to the Company, the Trustee, Paying Agent,
Conversion Agent or Registrar that such Note has been acquired by a protected
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously outstanding.

    


    In case
any such mutilated, destroyed, lost or stolen Note has become or is about to
become due and payable, the Company in its discretion, but subject to any
conversion rights, may, instead of issuing a new Note, pay such Note upon
satisfaction of the conditions set forth in the preceding
paragraph.

    


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

    


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

    


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

    


    SECTION
2.8. Cancellation. The
Company at any time may deliver Notes to the Registrar for cancellation. The
Trustee, the Conversion Agent and the Paying Agent shall forward to the
Registrar any Notes surrendered to them for payment, redemption, registration of
transfer, exchange or conversion. The Registrar and no one else shall cancel and
dispose of them in accordance with its customary procedures and upon written
request of the Company shall return to the Company all Notes surrendered for
registration of transfer, exchange, payment, purchase, conversion or
cancellation. All Notes so delivered to the Registrar shall be cancelled
promptly by the Registrar. The Company may not issue new Notes to replace Notes
it has paid or delivered to the Registrar for cancellation.

     

    
      
        
           


        

        
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    At such
time as all beneficial interests in a Global Note have either been exchanged for
Certificated Notes, transferred, paid, repurchased, converted or canceled, such
Global Note shall be returned by the Depositary or the Notes Custodian to the
Registrar for cancellation or retained and canceled by the Registrar. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for Certificated Notes, transferred in exchange for an interest in
another Global Note, paid, repurchased, converted or canceled, the principal
amount of Notes represented by such Global Note shall be reduced and an
adjustment shall be made on the Global Note and on the books and records of the
Registrar (if it is then the Notes Custodian for such Global Note) with respect
to such Global Note, by the Registrar or the Notes Custodian, to reflect such
reduction.

    


    SECTION
2.9. Payment of
Interest; Defaulted Interest. Interest on any Note that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date will be at
a rate of 1.875% per annum, payable semi-annually in arrears on March 15 and
September 15 of each year, and shall be paid to the Person in whose name such
Note (or one or more predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 2.3 regardless of
whether or not such Holders convert their Notes.

    


    Any
interest on any Note that is payable, but is not paid when the same becomes due
and payable and such nonpayment continues for a period of 30 days shall
forthwith cease to be payable to the Holder on the Regular Record Date, and such
defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Notes (such defaulted interest and interest
thereon herein collectively called “Defaulted Interest”) shall be
paid by the Company, at its election, as provided below:

    


    The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective predecessor Notes) are registered at
the close of business on a Special Record Date (as defined below) for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee and the Paying Agent in writing of
the amount of Defaulted Interest proposed to be paid on each Note and the date
(not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment
Date”), and the Company shall make arrangements reasonably satisfactory
to the Trustee and the Paying Agent to deposit with the Paying Agent an amount
of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest on or prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a record date (the “Special
Record Date”) for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the Special Interest
Payment Date and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company
and the Paying Agent of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest Payment Date
therefor, which notice shall be prepared by the Company and shall be in a form
reasonably acceptable to the Trustee, to be given in the manner provided for in
Section 11.2, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date and
Special Interest Payment Date therefor having been so given, such Defaulted
Interest shall be paid on the Special Interest Payment Date to the Persons in
whose names the Notes are registered at the close of business on such Special
Record Date.

    


    
      
        
           


        

        
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    Subject
to the foregoing provisions of this Section, each Note delivered under this
Indenture upon registration of transfer of, or in exchange for, or in lieu of
any other Note shall carry the rights to interest accrued and unpaid which were
carried by such other Note.

    


    SECTION
2.10. Computation of
Interest. Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.

    


    SECTION
2.11. CUSIP
Numbers. The Company in issuing the Notes and Common Stock upon
conversion of the Notes may use CUSIP numbers (if then generally in use) and, if
so, the Trustee shall use the CUSIP numbers in notices of redemption as a
convenience to Holders; provided, however, that neither the
Company nor the Trustee shall have responsibility for any defect in the CUSIP
number that appears on any Note, check, advice of payment or redemption notice
and any such notice may state that no representation is made to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP numbers.

    


    SECTION
2.12. Calculations in
Respect of the Notes. The Company shall be responsible for making all
calculations called for under the Notes. These calculations include, but are not
limited to, determinations of the Closing Sale Price of the Common Stock, any
accrued interest (including Liquidated Damages and Additional Interest, if any)
payable on the Notes and the Applicable Conversion Price of the Notes and
adjustments to the Applicable Conversion Price. The Company shall make these
calculations in good faith and, absent manifest error, such calculations will be
final and binding on Holders of the Notes. The Company shall provide to the
Trustee and the Conversion Agent a schedule of its calculations, and the Trustee
and the Conversion Agent, subject to Sections 8.1 and 8.2, shall be entitled to
rely upon the accuracy of such calculations without independent verification.
The Trustee shall forward the Company’s calculations to any Holder of the Notes
upon the request of such Holder.

    


    SECTION
2.13. Liquidated
Damages Under Registration Rights Agreement. Any Liquidated Damages
payable pursuant to the terms of the Registration Rights Agreement are deemed to
be interest for purposes of this Indenture.

     

    
      
        
           


        

        
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    SECTION
2.14. Ranking.
The Notes will be senior, unsecured obligations of the Company and will rank
equal in right of payment to all of the Company’s existing senior unsecured debt
and senior to all of the Company’s future subordinated
indebtedness.

    


    ARTICLE
III

    


    COVENANTS

    


    SECTION
3.1. Payment of
Notes. The Company will pay or cause to be paid the principal of and
interest, if any, on the Notes on the dates and in the manner provided in the
Notes. Principal and interest, if any, will be considered paid on the date due
if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as
of 11:00 a.m. New York City time on the due date money deposited by the Company
in immediately available funds and designated for and sufficient to pay all
principal and interest then due.

    


    The
Company will pay interest on overdue principal at the then applicable interest
rate on the Notes to the extent lawful; it will pay interest on overdue
installments of interest (without regard to any applicable grace period) at the
same rate to the extent lawful.

    


    SECTION
3.2. Maintenance of
Office or Agency. The Company will maintain in the Borough of Manhattan,
the City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes 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 fails to maintain any such required office or agency or fails
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
Deutsche Bank Trust Company Americas.

    


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

    


    The
Company hereby designates the office of Deutsche Bank Trust Company Americas as
one such office or agency of the Company.

    


    SECTION
3.3. Compliance
Certificate. The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers’ Certificate, one
of the signatories of which shall be the chief executive officer, chief
financial officer or chief accounting officer of the Company, stating that in
the course of the performance by the signer of his or her duties as an Officer
of the Company, he or she would normally have knowledge of any Default and
whether or not such signer knows of any Default that occurred during such
period. If such signer does have knowledge of a Default, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the TIA upon qualification of the Indenture under the
TIA.

     

    
      
        
           


        

        
          24

          
            

          

        

        
           


        

      

    

     

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

    


    SECTION
3.4. Reservation of
Common Stock. The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock or
shares held in treasury by the Company, for the purpose of effecting the
conversion of Notes, the full number of shares of Common Stock then issuable
upon the conversion of all outstanding Notes.

    


    SECTION
3.5. Issuance of
Shares. All shares of Common Stock delivered upon conversion of the Notes
shall be newly issued shares or shares held in treasury by the Company, shall
have been duly authorized and validly issued and shall be fully paid and
nonassessable, and shall be free from preemptive rights and free of any Lien or
adverse claim.

    


    SECTION
3.6. Transfer
Taxes. If a Holder converts Notes for shares of Common Stock, the Company
will pay any and all documentary, stamp or similar issue or transfer tax due on
the issue of shares of Common Stock upon the conversion. The Company shall not,
however, be required to pay any tax or duty that may be payable in respect of
any transfer involved in the issue and delivery of shares of Common Stock in a
name other than that of the Holder of the Note or Notes to be converted, and no
such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has been
paid.

    


    SECTION
3.7. SEC and Other
Reports. The Company shall file with the Trustee and the SEC, and
transmit to Holders, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the TIA at the times and in
the manner provided pursuant to the TIA; provided that any such information,
documents or reports required to be filed with the SEC pursuant to Section 13 or
15(d) of the Exchange Act shall, unless such information, documents or reports
are available on the SEC’s EDGAR filing system (or any successor thereto), be
filed with the Trustee within 30 days after the same is so required to be filed
with the SEC. The Company also shall comply with the other provisions of TIA
Section 314(a) upon qualification of the Indenture under the TIA. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
conclusively on Officers’ Certificates). The requirements under this Section 3.7
shall be deemed satisfied upon the filings of such reports, information and
documents with the SEC.

     

    
      
        
           


        

        
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    ARTICLE
IV

    


    SUCCESSORS

    


    SECTION
4.1. Merger,
Consolidation or Sale of Assets. The Company shall not, directly or
indirectly, consolidate or merge with or into any other Person in a transaction
in which the Company is not the surviving corporation or convey, transfer or
lease the properties and assets of the Company substantially as an entirety to
any successor Person, unless:

    


    (a) the
successor Person, if any, is:

    


    (1)    a
corporation organized and existing under the laws of the United States, any
state of the United States, or the District of Columbia;

    


    (2)    such
Person assumes the Company’s obligations on the Notes and under this Indenture
pursuant to agreements reasonably satisfactory in form and substance to the
Trustee;

    


    (3)    
immediately after giving effect to the transaction, no Default or Event of
Default will have occurred and be continuing; and

    


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

    


    This
Section 4.1 will not apply to a merger of the Company with an Affiliate solely
for the purpose of reincorporating the Company in another
jurisdiction.

    


    SECTION
4.2. Successor
Corporation Substituted. Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in a transaction
that is subject to, and that complies with the provisions of, Section 4.1
hereof, the successor Person formed by such consolidation with or into which the
Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition, the provisions of this
Indenture referring to the “Company” shall refer instead
to the successor Person and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a transaction that
is subject to, and that complies with the provisions of, Section 4.1
hereof.

     

    
      
        
           


        

        
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    ARTICLE
V

    


    REDEMPTION
OF NOTES

    


    SECTION
5.1. Company’s Right
to Redeem; Notices to Trustee. The Notes will not be subject to
redemption prior to March 22, 2013, except as otherwise set forth in this
Section 5.1. On or after March 22, 2013, the Company shall have the right to
redeem the Notes in whole or in part, for a cash Redemption Price equal to 100%
of the principal amount of the Notes to be redeemed, plus any accrued and unpaid
interest (including Liquidated Damages and Additional Interest, if any) thereon
up to, but not including, the Redemption Date (the “Redemption Price”). If the
Redemption Date is after a Regular Record Date and on or before the Interest
Payment Date to which it relates, the Company will pay any accrued and unpaid
interest (including Liquidated Damages and Additional Interest, if any) to a
Holder on such regular Record Date; otherwise, interest payable upon redemption
will be paid to the Holder to whom principal is payable in connection with such
redemption. If the Company calls any or all of the Notes for redemption, Holders
may convert their Securities that have been so called for redemption at any time
prior to 5:00 p.m. (New York City Time) one Business Day prior to the Redemption
Date, even if such Notes are not otherwise convertible at such time, after which
such Holders’ right to convert will expire unless the Company defaults in the
payment of a Redemption Price.

    


    The
Company shall give each notice to the Trustee provided for in this Section 5.1
at least 60 days before the Redemption Date unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officers’ Certificate and
an Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein.

    


    SECTION
5.2. Selection of
Notes To Be Redeemed. If fewer than all outstanding Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed by lot, on a pro
rata basis or by another method that the Trustee considers fair and appropriate,
including any method required by DTC or any successor Depositary. The Trustee
shall make the selection from outstanding Notes not previously called for
redemption. The Trustee may select for redemption portions of the principal
amount of Notes that have denominations larger than $1,000. Notes and portions
of Notes the Trustee selects shall be in principal amounts of $1,000 or
multiples thereof. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company promptly of the Notes or portions of Notes to be
redeemed.

    


    If the
Trustee selects a portion of a Holder’s Notes for partial redemption and such
Holder converts a portion of the same Notes, the converted portion will be
deemed first to be from the portion selected for redemption.

    


    SECTION
5.3. Notice of
Redemption. At least 30 days but not more than 60 days before a
Redemption Date, the Company or the Trustee shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Notes to be
redeemed.

    


    The
notice shall identify the Notes to be redeemed and shall state:

    


    (a)    
the Redemption Date;

    


    
      
        
           


        

        
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    (b)     the
Redemption Price;

    


    (c)    
the Applicable Conversion Price;

    


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

    


    (e)     that
Notes called for redemption may be converted at any time before the close of
business on the Business Day immediately preceding the Redemption
Date;

    


    (f)      that
Holders who want to convert their Notes must satisfy all the requirements set
forth herein and in the Notes;

    


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

    


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

    


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

    


    (j)     
the CUSIP number of the Notes.

    


    At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense, provided that the Company
makes such request at least three Business Days prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section
5.1, provided further
that, in all cases, the text of such notice of redemption shall be
prepared by the Company.

    


    SECTION
5.4. Effect of Notice
of Redemption. Once notice of redemption is given, Notes called for
redemption become due and payable on the Redemption Date and at the Redemption
Price stated in the notice of redemption except for Notes which are converted in
accordance with the terms of this Indenture. Upon surrender to the Paying Agent,
such Notes shall be paid at the Redemption Price stated in the notice of
redemption.

    


    SECTION
5.5. Deposit of
Redemption Price. Prior to 10:00 a.m. (New York City time), on the
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of all Notes to be redeemed on that
date other than Notes or portions of Notes called for redemption which have been
delivered by the Company to the Trustee for cancellation or which have been
converted. The Paying Agent shall as promptly as practicable return to the
Company any money not required for that purpose because of conversion of Notes
pursuant to Article VI. If such money is then held by the Company in trust and
is not required for such purpose it shall be discharged from such
trust.

    


    SECTION
5.6. Notes Redeemed in
Part.

    


    
      
        
           


        

        
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    (a)  
In the event of any redemption in part, the Company will not be required to
register the transfer of or exchange of any Notes, so selected for redemption,
in whole or in part, except the unredeemed portion of any Notes being redeemed
in part.

    


    (b)  
Upon surrender of a Note that is redeemed in part, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder a new Note in an
authorized denomination equal in principal amount to the unredeemed portion of
the Note surrendered, or in the case of a Global Note, the Company shall
instruct the Registrar to decrease such Global Note by the principal amount of
the redeemed portion of the Note surrendered.

    


    SECTION
5.7. Purchase of Notes
by the Company at Option of the Holder.

    


    (a) General. Notes shall be
purchased by the Company at the option of the Holder on March 15, 2013, March
15, 2018 and March 15, 2023 or the next Business Day following such date to the
extent any such date is not a Business Day (each, a “Purchase Date”). Notes and
portions of Notes purchased by the Company pursuant to this Section 5.7 shall be
in principal amounts of $1,000 or multiples thereof. All Notes purchased by the
Company will be paid for in U.S. legal tender (“Cash” or “cash”) equal to 100% of the
principal amount to be purchased plus any accrued and unpaid interest (including
Liquidated Damages and Additional Interest, if any), thereon up to, but not
including, such Purchase Date (the “Purchase Price”).

    


    No Notes
may be purchased by the Company at the option of Holders if there has occurred
and is continuing an Event of Default with respect to the Notes, other than an
Event of Default that is cured by payment of the Purchase Price of the Notes.
The Company shall be required to purchase any outstanding Notes
upon:

    


    (1)
delivery to the Paying Agent and the Company by the Holder of a written notice
(or in the case of Global Notes, a notice delivered electronically or by other
means in accordance with the Depositary’s customary procedures) of purchase (a
“Purchase Notice”)
during the period beginning at any time from the opening of business on the date
that is 20 Business Days prior to the relevant Purchase Date until the close of
business on the second Business Day prior to such Purchase Date. The Purchase
Notice electing the Company to purchase the Notes must state:

    


    (i) if
Certificated Notes have been issued, the certificate number of the Notes, or if
not Certificated Notes, such Purchase Notice must comply with appropriate DTC
procedures;

    


    (ii) the
portion of the principal amount to be purchased, in multiples of $1,000;
and

    


    (iii) the
Notes shall be purchased by the Company pursuant to the applicable terms of the
Notes and this Indenture.

    


    Simultaneously
with providing such Purchase Notice, the Company shall publish a notice
containing the information contemplated by this Section 5.7(a)(1) in a newspaper
of general circulation in The City of New York or publish such information on
the Company’s website or through such other public medium as the Company may use
at that time.

     

    
      
        
           


        

        
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    The
Company shall purchase from the Holder thereof, pursuant to this Section 5.7, a
portion of a Note, if the principal amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Note also apply to the purchase of such portion of such
Note.

    


    A Holder
shall either effect book-entry transfer or deliver the Notes, together with
necessary endorsements, to the office of the Paying Agent after delivery of the
Purchase Notice to receive payment of the Purchase Price. A Holder shall receive
payment promptly following the later of the Purchase Date or the time of
book-entry transfer or the delivery of the Notes. If the Paying Agent holds
money sufficient to pay the Purchase Price of the Note on such Business Day
following the Purchase Date, then the Notes will cease to be outstanding and
interest (including Liquidated Damages and Additional Interest, if any) on such
Note will cease to accrue (whether not book-entry transfer of the Note is made
or whether the Note is delivered to the Paying Agent), and all other rights of
the Holder shall terminate (other than the right to receive the Purchase Price
and previously accrued and unpaid interest and additional interest upon delivery
on transfer of the Notes).

    


    If a
Holder of Notes has given the Purchase Notice, the Holder may only convert such
Notes if the Holder withdraws the Purchase Notice delivered by such Holder in
accordance with the terms of this Indenture and the Holder is otherwise entitled
to convert the Notes.

    


    Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Purchase Notice contemplated by this Section 5.7 shall have the right to
withdraw any such Purchase Notice in whole or in part by a written notice of
withdrawal to the Paying Agent in accordance with Section 5.9 prior to the close
of business on the Business Day prior to the Purchase Date. If the Purchase
Notice is given and withdrawn during such period, the Company will not be
obligated to purchase the related Notes. The Paying Agent shall promptly notify
the Company of the receipt by it of any written notice of withdrawal of a
Purchase Notice. The Company shall be responsible for making all determinations
with respect to the adequacy of such Purchase Notice electing to require the
Company to purchase the Notes and all notices withdrawing such elections and any
such determination shall be binding on the applicable Holder. The Company shall
comply with the provisions of Rule 13e-4, to the extent applicable, and any
other rules under the Exchange Act that may be applicable.

    


    (b) Company Notice. On or before
the 20th
Business Day prior to each Purchase Date (the “Company Notice Date”), the
Company shall mail a notice to the Trustee, the Paying Agent, all Holders of the
Notes and to beneficial owners as required by applicable law, setting forth
information specified in this Section 5.7(b) (the “Company Notice”).

    


    Each
Company Notice shall include a form of Purchase Notice to be completed by a
Holder and shall state:

    


    (1)       the
last date on which a Holder may exercise the purchase right;

    


    (2)       the
Purchase Price;


    


    
      
        
           


        

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

    


    (4)      the
Applicable Conversion Price estimated as of a recent date, and to the extent
known at the time of such Company Notice, the amount of accrued but unpaid
interest that will be payable with respect to each $1,000 principal amount of
the Notes on Purchase Date;

    


    (5)      that
Notes as to which a Purchase Notice has been given may be converted if they are
otherwise convertible only in accordance with Article VI hereof and the
applicable provisions of the Notes if the applicable Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;

    


    (6)      that
Notes must be surrendered to the Paying Agent to collect payment;

    


    (7)      that
the Purchase Price for any Note as to which a Purchase Notice has been given and
not withdrawn will be paid on the Business Day following the later of the
Purchase Date or the time of book-entry transfer or the delivery of the Notes
and the Holder’s satisfaction of all applicable conditions;

    


    (8)      the
procedures the Holder must follow to exercise its purchase rights under this
Section 5.7 and a brief description of such rights;

    


    (9)      
briefly, the conversion rights, if any, of the Notes;

    


    (10)     the
procedures for withdrawing a Purchase Notice;

    


    (11)     that,
unless the Company defaults in making payment on Notes for which a Purchase
Notice has been submitted, interest, if any (including Liquidated Damages,
Additional Interest and Additional Amounts, if any), on such Notes will cease to
accrue on and after the Purchase Date; and

    


    (12)     the
CUSIP number of the Notes.

    


    At the
Company’s request, the Trustee shall give such Company Notice in the Company’s
name and at the Company’s expense; provided that the Company
makes such request at least three Business Days prior to the date by which such
Company Notice must be given to Holders in accordance with this Section 5.7;
provided further that,
in all cases, the text of such Company Notice shall be prepared by the
Company.

    


    (c) Procedure upon Purchase. The
Company shall deposit cash in respect of cash repurchases under this Section 5.7
at the time and in the manner as provided in Section 5.10, sufficient to pay the
aggregate Purchase Price of all Notes to be purchased pursuant to this Section
5.7.

    


    SECTION
5.8. Purchase of Notes
at Option of Holder Upon a Fundamental Change.

    


    
      
        
           


        

        
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    (a) If at
any time that Notes remain outstanding there shall occur a Fundamental Change,
Notes shall be purchased by the Company at the option of the Holders, as of the
date that is 30 Business Days after the occurrence of the Fundamental Change
(the “Fundamental Change
Purchase Date”) at a purchase price equal to 100% of the principal amount
of the Notes, together with any accrued and unpaid interest (including
Liquidated Damages and Additional Interest, if any) to, but excluding, the
Fundamental Change Purchase Date (the “Fundamental Change Purchase
Price”), payable in Cash, subject to satisfaction by or on behalf of any
Holder of the requirements set forth in Section 5.8(c). Notes and portions of
Notes purchased by the Company pursuant to this Section 5.8 shall be in
principal amounts of $1,000 or multiples thereof.

    


    A “Fundamental Change” shall mean
the occurrence of a Change in Control or a Termination of Trading.

    


    A “Change in Control” shall be
deemed to have occurred if any of the following occurs after the date of this
Indenture:

    


    (1)     any
“person” or “group” other than any of the Permitted Holders is or becomes the
direct or indirect Beneficial Owner of shares of Voting Stock representing 50%
or more of the total voting power of all outstanding classes of the Company’s
Voting Stock or has the power, directly or indirectly, to elect a majority of
the members of the Board of Directors;

    


    (2)     the
Company consolidates with, or merges with or into, another Person, or the
Company sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of the assets of the Company, or any Person consolidates
with, or merges with or into, the Company;

    


    (3)     the
Permitted Holders, considered as a group, are or become the beneficial owners,
directly or indirectly, of more than 60% of the total voting power of all
outstanding classes of the Company’s Voting Stock provided, however, that the
Permitted Holders’ ownership may exceed 60% if such excess is solely as a result
of acquisitions from us after the date of this Indenture of newly issued shares
of the Company’s Voting Stock other than as a result of the retirement of shares
of the Company’s Voting Stock outstanding as of the date of this
Indenture;

    


    (4)     a
majority of the members of the Board of Directors are not Continuing Directors;
or

    


    (5)     the
holders of the Company’s Capital Stock approve any plan or proposal for the
liquidation or dissolution of the Company, whether or not in compliance with the
terms hereof.

    
      
         

        Notwithstanding
anything to the contrary set forth in this Section 5.8, Holders will not have
the right to require the Company to purchase any Notes as a result of any
transaction described in clause (i) or (ii) of the definition of “Change in
Control” above, and the Company will not be required to deliver a Fundamental
Change Notice, as a result of any transaction constituting a Change in Control
in which the Persons that “beneficially owned,” directly or indirectly, the
shares of the Company’s Voting Stock immediately prior to such transaction
“beneficially own,” directly or indirectly, the shares of the Company’s Voting
Stock representing at least a majority of the total voting power of all
outstanding classes of Voting Stock of the surviving or transferee person, or if
at least 90% of the consideration paid for the Common Stock, excluding Cash
payments for fractional shares and Cash payments made pursuant to dissenters’
appraisal rights, consists of shares of common stock, depositary receipts or
other certificates representing common equity interests traded on a U.S.
national securities exchange, or will be so traded immediately following the
merger or consolidation, and, as a result of the merger or consolidation, the
Notes become convertible into such shares of such common stock, depositary
receipts or other certificates representing common equity
interests.

        


      

      
        
           


        

        
          32

          
            

          

        

        
           


        

      


      For the
purpose of the definition of “Change in Control,” (i) “person” and “group” have
the meanings given such terms under Section 13(d) and 14(d) of the Exchange Act
or any successor provision to either of the foregoing, and the term “group”
includes any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any
successor provision thereto), (ii) a “beneficial owner” shall be determined in
accordance with Rule 13d-3 under the Exchange Act, as in effect on the date of
this Indenture, except that the number of shares of Voting Stock of the Company
shall be deemed to include, in addition to all outstanding shares of Voting
Stock of the Company and Unissued Shares deemed to be held by the “person” or
“group” (as such terms are defined above) or other Person with respect to which
the Change in Control determination is being made, all Unissued Shares deemed to
be held by all other Persons, (iii) Permitted Holders (the “Permitted Holders”) means
Mining and Metallurgical Company Norilsk Nickel and its existing and future
Affiliates, and (iv) the terms “beneficially owned” and “beneficially own” shall
have meanings correlative to that of “beneficial owner.”

      


      The term
“Unissued Shares” means
shares of Voting Stock not outstanding that are subject to options, warrants,
rights to purchase or conversion privileges exercisable within 60 days of the
date of determination of a Change in Control.

      


      (b)
Within ten Business Days after the occurrence of a Fundamental Change, the
Company (or the Trustee, as applicable) shall mail a written notice of the
Fundamental Change (the “Fundamental Change Notice,”
the date of such mailing, the “Fundamental Change Notice
Date”) by first-class mail to the Trustee and to each Holder.
Simultaneously with providing such notice, the Company will issue a press
release and publish the information on its website. The Fundamental Change
Notice shall include a form of Fundamental Change Purchase Notice to be
completed by the Holder and shall state:

      


      (1)   briefly,
the information about, and the terms and conditions of, the Fundamental Change,
including the amount of Additional Shares that are deliverable, if
any;

      


      (2)   the
date by which the Fundamental Change Purchase Notice pursuant to Section 5.8(c)
must be given;

      


      (3)   the
Fundamental Change Purchase Date;

       

      
        
           


        

        
          33

          
            

          

        

        
           


        

      

       

      (4)   the
Fundamental Change Purchase Price;

      


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

      


      (6)   the
Applicable Conversion Price estimated as of a recent date, and to the extent
known at the time of such Company Notice, the amount of accrued but unpaid
interest that will be payable with respect to each $1,000 principal amount of
the Notes on the Purchase Date;

      


      (7)   that
the Notes must be surrendered to the Paying Agent to collect
payment;

      


      (8)   that
the Fundamental Change Purchase Price for any Note as to which a Fundamental
Change Purchase Notice has been duly given and not withdrawn will be paid on the
Business Day following the later of the Fundamental Change Purchase Date and the
Holder’s satisfaction of all applicable conditions;

      


      (9)   briefly,
the procedures the Holder must follow to exercise rights under this Section
5.8;

       

      (10)   briefly,
the conversion rights, if any, of the Notes;

      


      (11)   the
procedures for withdrawing a Fundamental Change Purchase Notice;

      


      (12)   that,
unless the Company defaults in making payment of such Fundamental Change
Purchase Price, interest, if any, on Notes surrendered for purchase by the
Company will cease to accrue on and after the Fundamental Change Purchase Date;
and

      


      (13)   the
CUSIP number of the Notes.

      


      At the
Company’s request, the Trustee shall give such Fundamental Change Notice in the
Company’s name and at the Company’s expense, provided that the Company
makes such request at least three Business Days prior to the date by which such
Fundamental Change Notice must be given to Holders in accordance with this
Section 5.8; provided further
that, in all cases, the text of such Fundamental Change Notice shall be
prepared by the Company.

      


      (c) A
Holder may exercise its rights specified in subsection (b) of this Section 5.8
upon delivery of a written notice which may be delivered by letter, overnight
courier, hand delivery, facsimile transmission or in any other manner reasonably
acceptable to the Paying Agent and, in the case of Global Notes, may be
delivered electronically or by other means in accordance with the Depositary’s
customary procedures of the exercise of such rights (a “Fundamental Change Purchase
Notice”) to any Paying Agent during the period between the Fundamental
Change Purchase Notice and 5:00 p.m. (New York City time) on the Business Day
prior to the Fundamental Change Purchase Date, specifying:

      


      (1)   if
the Notes are Certificated Notes, the certificate number of the Note which the
Holder will deliver to be purchased; if the Notes are not Certificated Notes,
all information required to comply with all DTC procedures;

       

      
        
           


        

        
          34

          
            

          

        

        
           


        

      

       

      (2)   the
principal amount of the Note, or portion thereof, which the Holder will deliver
to be purchased, which portion must be $1,000 or an integral multiple thereof;
and

      


      (3)   that
such Note shall be purchased pursuant to the terms and conditions specified in
the applicable provisions of such Note and this Indenture.

      


      The
delivery of such Notes to the Paying Agent with the Fundamental Change Purchase
Notice (together with all necessary endorsements and compliance by the Holder
with all DTC procedures) at the offices of the Paying Agent shall be a condition
to the receipt by the Holder of the Fundamental Change Purchase Price
therefor.

      


      The
Company shall purchase from the Holder thereof, pursuant to this Section 5.8, a
portion of a Note if the principal amount of such portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Note also apply to the purchase of such portion of such
Note.

      


      Any
purchase by the Company contemplated pursuant to the provisions of this Section
5.8 shall be consummated by the delivery of the consideration to be received by
the Holder on the Business Day following the later of the Fundamental Change
Purchase Date or the satisfaction of the foregoing conditions to such purchase
to be fulfilled by the Holder hereunder. If the Paying Agent holds money
sufficient to pay the Fundamental Change Purchase Price of the Notes which
Holders have elected to require the Company to purchase on such Business Day in
accordance with the terms of this Indenture, then, from and including the
Fundamental Change Purchase Date, those Notes will cease to be outstanding and
interest (including Liquidated Damages, Additional Interest and Additional
Amounts, if any) on the Notes will cease to accrue and all other rights of the
Holders shall terminate, other than the right to receive the Fundamental Change
Purchase Price upon satisfaction of the foregoing conditions.

      


      (d) Procedure upon Purchase. The
Company shall deposit cash, at the time and in the manner as provided in Section
5.10, sufficient to pay the aggregate Fundamental Change Purchase Price of all
Notes to be purchased pursuant to this Section 5.8.

      


      SECTION
5.9. Effect of
Purchase Notice or Fundamental Change Purchase Notice. Upon receipt by
the Paying Agent of the Purchase Notice or Fundamental Change Purchase Notice
specified in Section 5.7(a) or Section 5.8(c), as applicable, the Holder of the
Note in respect of which such Purchase Notice or Fundamental Change Purchase
Notice, as the case may be, was given, shall (unless such Purchase Notice or
Fundamental Change Purchase Notice, as the case may be, is withdrawn as
specified in the following paragraph) thereafter be entitled to receive solely
the Purchase Price or Fundamental Change Purchase Price, as the case may be,
with respect to such Note. Such Purchase Price or Fundamental Change Purchase
Price shall be paid to such Holder, subject to receipt of funds by the Paying
Agent, promptly following the later of (i) the Business Day following the
Purchase Date or the Fundamental Change Purchase Date, as the case may be, with
respect to such Note (provided the conditions in Section 5.7(a) or Section
5.8(c), as applicable, have been satisfied) and (ii) the time of delivery of
such Note to the Paying Agent by the Holder thereof in the manner required by
Section 5.7(a) or Section 5.8(c), as applicable. Notes in respect of which a
Purchase Notice or Fundamental Change Purchase Notice has been given by the
Holder thereof may not be converted pursuant to Article VI hereof on or after
the date of the delivery of such Purchase Notice or Fundamental Change Purchase
Notice unless such Purchase Notice or Fundamental Change Purchase Notice has
first been validly withdrawn as specified in the following
paragraph.


      
        
           


        

        
          35

          
            

          

        

        
           


        

      

       

      A
Purchase Notice or Fundamental Change Purchase Notice may be withdrawn by means
of a written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Purchase Notice or Fundamental Change Purchase Notice, as
the case may be, at any time prior to 5:00 p.m. (New York City time) on the
Business Day prior to the Purchase Date or the Fundamental Change Purchase Date,
as the case may be, specifying:

      


      (a)   if
Certificated Notes have been issued, the certificate number of the withdrawn
Note, if the Notes are not Certificated Notes, such notice shall comply with the
appropriate DTC procedures;

      


      (b)   the
principal amount of the withdrawn Note; and

      


      (c)   the
principal amount, if any, of such Note which remains subject to the original
Purchase Notice or Fundamental Change Purchase Notice, as the case may be, and
which has been or will be delivered for purchase by the Company.

      


      SECTION
5.10. Deposit of
Purchase Price or Fundamental Change Purchase Price. Prior to 11:00 a.m.
(New York City time) on the Business Day following the later of the Purchase
Date or the Fundamental Change Purchase Date, as the case may be, and the
Holder’s satisfaction of all applicable conditions specified in Section 5.7(a)
or Section 5.8(c), as applicable, the Company shall deposit with the Trustee or
with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.4) an amount of cash (in immediately available funds if
deposited on such Business Day), sufficient to pay the aggregate Purchase Price
or Fundamental Change Purchase Price, as the case may be, of all the Notes or
portions thereof which are to be purchased in respect of such Purchase Date or
Fundamental Change Purchase Date, as the case may be.

      


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

      


      SECTION
5.12. Covenant to
Comply with Securities Laws Upon Purchase of Securities. When complying
with the provisions of Section 5.8 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or purchase), the Company shall (a) comply with Rule
13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act and
comply with any other tender offer rules under the Exchange Act to the extent
applicable, (b) file a Schedule TO (or any successor schedule, form or report)
under the Exchange Act, if required and (c) otherwise comply with any applicable
Federal and state securities laws to the extent applicable to the Company so as
to permit the rights and obligations under Section 5.8 to be exercised in the
time and in the manner specified in Section 5.8.


      
        
           


        

        
          36

          
            

          

        

        
           


        

      

       

      SECTION
5.13. Repayment to the
Company. Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall return to the Company any cash held by the Trustee or
the Paying Agent, as applicable, for the payment of the Purchase Price or
Fundamental Change Purchase Price, as the case may be, that remains unclaimed by
the Holders for a period of two years; provided, however, that to
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 5.10 exceeds the aggregate Purchase Price or Fundamental Change
Purchase Price, as the case may be, of the Notes or portions thereof which the
Company is obligated to purchase as of the Business Day following the Purchase
Date or Fundamental Change Purchase Date, as the case may be, then, unless
otherwise agreed in writing with the Company, promptly after the Business Day
following the Purchase Date or Fundamental Change Purchase Date, as the case may
be, the Trustee or the Paying Agent shall return any such excess to the
Company.

      


      SECTION
5.14. No Fundamental
Change Purchase Following Acceleration. No Notes will be purchased by the
Company under Section 5.8 if the principal amount of the Notes has been
accelerated under this Indenture, and such acceleration has not be rescinded, on
or prior to the Fundamental Change Purchase Date.

      


      ARTICLE
VI CONVERSION OF NOTES

      


      SECTION
6.1. Conversion Right
and Conversion Rate.

      


      (a)   Subject
to and upon compliance with the provisions of this Article VI, at the option of
the Holder thereof, at any time prior to the close of business on the business
day immediate prior to Maturity, unless the Notes have been earlier redeemed or
repurchased by the Company, all or any portion of the principal amount of any
Note that is an integral multiple of $1,000 (provided that the principal
amount of such Note to remain outstanding after such conversion is equal to
$1,000 or any integral multiple of $1,000 in excess thereof) may be converted
into fully paid and non-assessable shares of Common Stock at the Conversion
Rate, determined as hereinafter provided, in effect at the time of
conversion.

      


      (b)   If
any Holder has submitted Notes for repurchase upon a Fundamental Change in
accordance with Section 5.8(c) hereof, such Notes submitted for repurchase may
be converted only if such Holder withdraws the election for repurchase in
accordance with Section 5.9 hereof.


      
        
           


        

        
          37

          
            

          

        

        
           


        

      


      


      (c) Each
$1,000 principal amount of notes converted into shares of Common Stock shall
initially be converted at a Conversion Price of $23.51 per share of Common
Stock. The initial rate at which shares of Common Stock shall be delivered upon
conversion (herein called the “Conversion Rate”) shall be
approximately 42.5351 shares of Common Stock for each $1,000 principal amount of
Notes. The Applicable Conversion Price will be adjusted under the circumstances
provided in Section 6.5. An adjustment to the Applicable Conversion Price will
result in a corresponding inverse adjustment to the Applicable Conversion Rate.
All calculations under this Article shall be made to the nearest 1/10th cent or
to the nearest 1/10,000ths of a share, as the case may be.

      


      SECTION
6.2. Conversion
Consideration.

      


      Upon
surrendering any Notes for conversion, the Holder of such Notes shall receive,
in respect of each $1,000 principal amount of Notes, a number of shares of
Common Stock equal to the Applicable Conversion Price.

      


      SECTION
6.3. Exercise of
Conversion Right.

      


      (a) In
order to exercise the conversion right:

      


      (1)   the
Holder of any Certificated Note to be converted must: (i) complete and manually
sign a notice of conversion substantially in the form of Exhibit B hereto (the
“Conversion Notice”);
(ii) deliver the Conversion Notice and the Certificated Note to the Conversion
Agent; and (iii) if required by the Company, the Trustee or the Conversion
Agent, furnish appropriate endorsements and transfer documents; or

      


      (2)   the
holder of beneficial interests in any Global Note to be converted must submit
the Conversion Notice and comply with the Applicable Procedures to cause the
beneficial interests in such Global Note to be delivered to the Conversion
Agent, and in either case, the Holder of a Certificated Note or holder of
beneficial interests in a Global Note will, if required, pay all transfer or
similar taxes that the Company is not otherwise required to pay pursuant to
Section 3.6 hereof and, if required pursuant to Section 6.3(b) hereof, pay funds
equal to the interest payable on the next Interest Payment Date.

      


      The date
on which a Holder of a Certificated Note or holder of a beneficial interest in a
Global Note completes the requirements of this Section 6.3(a) shall be deemed to
be the date of conversion (the “Conversion Date”) for purposes
of this Article VI, provided
that if the holder complies with such requirements after 11:00 a.m. (New
York City Time) on such date then the Conversion Date shall be the next
succeeding Business Day if the requirements are satisfied after 11:00 a.m. (New
York City Time). On and after the Conversion Date, the conversion by such Holder
or holder, as set forth in the Conversion Notice, shall become
irrevocable.

      


      The
Company shall deliver shares of Common Stock (and any cash in lieu of fractional
shares) deliverable upon conversion through the Conversion Agent no later than
the third Business Day following the Conversion Date.


      
        
           


        

        
          38

          
            

          

        

        
           


        

      

      


      (b)   Each
Certificated Note surrendered (in whole or in part), or beneficial interest in
any  Global Note surrendered to the Conversion Agent, for conversion
during a Record Date Period  shall be accompanied by payment by the
Holder in same-day funds or other funds acceptable to  the Company of
an amount equal to the interest payable on the applicable Interest Payment
Date  on the principal amount of such Note (or part thereof, as the
case may be) being surrendered for  conversion; provided, however, that no
such payment by the Holder need be made (1) if the  Notes have been
called by the Company for redemption and the Redemption Date is after
a  Record Date and on or prior to the next Interest Payment Date, (2)
if we have specified a  Purchase Date following a Fundamental Change
that is after a Record Date and on or prior to the  next Interest
Payment Date, (3) with respect to any Note surrendered for conversion
following  the Record Date for the payment of interest (including
Liquidated Damaged and Additional  Amounts, if any) immediately
preceding the Stated Maturity, or (4) only to the extent of  Defaulted
Interest, if any Defaulted Interest exists at the time of conversion with
respect to such Note.

      


      Except as
provided in this Section 6.3(b), no cash payment or adjustment shall be made
upon any conversion on account of any interest accrued from the Interest Payment
Date immediately prior to the Conversion Date, in respect of any Note (or part
thereof, as the case may be) surrendered for conversion. The Company’s delivery
to the Holder of the number of shares of Common Stock (and cash in lieu of
fractions thereof in accordance with Section 6.4 hereof) into which a Note is
convertible will be deemed to satisfy all of the Company’s obligations to pay
the principal and accrued and unpaid interest (including Liquidated Damages and
Additional Interest), if any, on the Note. Accordingly, accrued but unpaid
interest, if any, will be deemed to be paid in full rather than cancelled,
extinguished or forfeited.

      


      (c)   Notes
shall be deemed to have been converted immediately prior to the close
of  business on the Conversion Date, and at such time the rights of
the Holders of such Notes as  Holders shall cease, and the Person or
Persons entitled to receive the shares of Common Stock  issuable upon
conversion shall be treated for all purposes as the record holder or Holders of
such  Common Stock at such time. Following any Conversion Date, the
Company shall satisfy its  obligations with respect to such conversion
by either:

      


      (1)   delivering
to the Conversion Agent, for delivery to the Holder (or such other Person as may
be named in the relevant Conversion Notice), certificates representing the
number of shares of Common Stock issuable upon such conversion; or

      


      (2)   delivering
to such Holder (or such other Person as may be named in the relevant Conversion
Notice) such number of shares of Common Stock issuable upon such conversion in
accordance with the Applicable Procedures,

      


      in each
case, together with payment in lieu of any fractional shares, if any, as
provided in Section 6.4 (such delivery of shares and cash payment, if any, the
“Settlement”); provided that shares of
Common Stock only will be deliverable in certificated form if (i) the Holder
exercising such conversion has specifically requested in writing that delivery
be in certificates or (ii) the Company determines that delivery is required in
certificated shares either because (A) delivery to the Holder (or such other
Person named in the relevant Conversion Notice) is not practicable in accordance
with the Applicable Procedures or (B) in the opinion of legal counsel, delivery
is required in certificated form in order to comply with the requirements of
applicable securities laws.


      
        
           


        

        
          39

          
            

          

        

        
           


        

      


      


      (d) In
the case of any Note that is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note or Notes of authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the principal amount of such Note.

      


      SECTION
6.4. Fractions of
Shares. No fractional shares of Common Stock shall be issued upon
conversion of any Note or Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares that shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so
surrendered. The number of fractional shares to be paid, if any, will be valued
by the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the Conversion Date. Instead of any fractional share of Common Stock
that would otherwise be issuable upon conversion of any Note or Notes (or
specified portions thereof), the Company shall calculate and pay to the Paying
Agent a cash adjustment for the fractional amount (calculated to the nearest
1/10,000th of a share) based upon the Closing Sale Price on the Trading Day
immediately preceding the Conversion Date.

      


      SECTION
6.5. Applicable
Conversion Price Adjustments.

      


      (a) The
Applicable Conversion Price shall be adjusted from time to time by the Company
as follows:

      


      (1)   In
case the Company shall (i) pay a dividend on its Common Stock in shares of
Common Stock, (ii) make a distribution on its Common Stock in shares of Common
Stock, (iii) subdivide its outstanding Common Stock into a greater number of
shares, or (iv) combine its outstanding Common Stock into a smaller number of
shares, the Applicable Conversion Price in effect immediately prior to thereto
shall be adjusted so that the Holder of any Note thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have owned had such Note been converted immediately prior to the
record date of such event or the happening of such event. An adjustment made
pursuant to this subsection (a) shall become effective on the “ex” 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. If any dividend
or distribution of the type described in this Section 6.5(a)(1) is declared but
not actually paid or made, the Applicable Conversion Price shall again be
adjusted to the Applicable Conversion Price that would have been in effect if
such dividend or distribution had not been declared.

      


      (2)   In
case the Company shall issue rights or warrants to all or substantially all
Holders of its Common Stock entitling them for a period of not more than 60 days
to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share (or having a Applicable Conversion Price
per share) less than the Current Market Price per share of Common Stock on the
Trading Day immediately preceding the “ex” date for such issuance, the
Applicable Conversion Price shall be adjusted so that the Applicable Conversion
Price on the “ex” date shall equal the price determined by multiplying the
Applicable Conversion Price in effect immediately prior to such “ex” date by a
fraction of which the numerator shall be the number of shares of Common Stock
Outstanding immediately prior to such “ex” date plus the number of shares which
the aggregate offering price of the total number of shares of Common Stock so
offered for subscription or purchase (or the aggregate Applicable Conversion
Price of the convertible securities so offered, which shall be determined by
multiplying the number of shares of Common Stock issuable upon conversion of
such convertible securities by the Applicable Conversion Price per share of
Common Stock pursuant to the terms of such convertible securities) would
purchase at the Current Market Price per share of Common Stock on the Trading
Day immediately preceding such “ex” date, and of which the denominator shall be
the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall be made successively whenever any such rights or
warrants are issued and shall become effective immediately after the opening of
business on such “ex” date. If at the end of the period during which such rights
or warrants are exercisable not all rights or warrants shall have been exercised
or distributed, the adjusted Applicable Conversion Price shall be immediately
readjusted to what it would have been based upon the number of additional shares
of Common Stock actually issued (or the number of shares of Common Stock
issuable upon conversion of convertible securities actually
issued).

       

      
        
          
          

        

        
          40

          
            

          

        

        
          
          

        

      

       

      (3)    In
case the Company shall distribute to all or substantially all Holders of its
Common Stock any shares of Capital Stock of the Company (other than Common
Stock), evidences of Indebtedness or other non-cash assets (including securities
of any Person other than the Company) or rights or warrants to subscribe for or
purchase any of its securities (but excluding from this Section 6.5(a)(3): (i)
dividends or distributions paid exclusively in Cash referred to in subsection
(4) or (6) of this Section 6.5(a); (ii) dividends or distributions referred to
in subsection (1) or (5) of this Section 6.5(a); (iii) those rights and warrants
referred to in subsection (2) of this Section 6.5(a); and (iv) rights to all or
substantially all Holders of Common Stock pursuant to the adoption of a
shareholder rights plan or the detachment of such rights under the terms of such
shareholder rights plan), then in each such case the Applicable Conversion Price
shall be adjusted so that the Applicable Conversion Price on the “ex” date for
such distribution shall equal the price determined by multiplying the current
Applicable Conversion Price by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on the Trading Day
immediately preceding such “ex” date less the fair market value on such Trading
Day (as determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value and which shall be evidenced by an
Officers’ Certificate delivered to the Trustee and the Conversion Agent) of the
portion of the Capital Stock, evidences of Indebtedness or other non-cash assets
so distributed or of such rights or warrants applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the Trading Day immediately preceding such “ex” date), and of
which the denominator shall be the Current Market Price per share of the Common
Stock on the Trading Day immediately preceding such “ex” date. Such adjustment
shall be made successively whenever any such distribution is made and shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution.


      
        
           


        

        
          41

          
            

          

        

        
           


        

      


      


      In the
event the then fair market value (as so determined) of the portion of the
Capital Stock, evidences of Indebtedness or other non-cash assets so distributed
or of such rights or warrants applicable to one share of Common Stock is equal
to or greater than the Current Market Price per share of the Common Stock on the
Trading Day immediately preceding such “ex” date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of a Note shall
have the right to receive upon conversion the amount of Capital Stock, evidences
of Indebtedness or other non-cash assets so distributed or of such rights or
warrants such holder would have received had such holder converted each Note
immediately prior to the record date for such distribution. In the event that
such dividend or distribution is not so paid or made, the Applicable Conversion
Price shall again be adjusted to be the Applicable Conversion Price which would
then be in effect if such dividend or distribution had not been declared. If the
Board of Directors determines the fair market value of any distribution for
purposes of this Section 6.5(a)(3) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price of
the Common Stock.

      


      In the
event that the Company implements a preferred shares rights plan (“Rights Plan”), upon conversion
of the Notes into Common Stock, to the extent that the Rights Plan has been
implemented and is still in effect upon such conversion, the Holders of Note
will receive, in addition to the Common Stock, the rights described therein
(whether or not the rights have separated from the Common Stock at the time of
conversion), subject to the limitations set forth in the Rights Plan. Any
distribution of rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this paragraph
shall not constitute a distribution of rights or warrants pursuant to this
Section 6.5(a)(3).

      


      (4)   In
case the Company shall, by dividend or otherwise, at any time distribute (a
“Triggering
Distribution”) to all or substantially all Holders of its Common Stock,
Cash dividends and other Cash distributions (other than (y) distributions
described in Section 6.5(a)(6) below or (z) any dividend or distribution in
connection with liquidation, dissolution or winding up), the Applicable
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Applicable Conversion Price in effect on the
Trading Day immediately preceding the “ex” date with respect to such Cash
dividend or distribution by a fraction of which (A) the numerator shall be the
Closing Sale Price per share of the Common Stock as of the Trading Day
immediately preceding the “ex” date with respect to the dividend or distribution
less the Dividend Adjustment Amount, and (B) the denominator shall be the
Closing Sale Price per share of the Common Stock as of the Trading Day
immediately preceding the “ex” date with respect to the dividend or
distribution. Such decrease shall become effective immediately prior to the
opening of business on the “ex” date for such dividend or distribution; provided, however, that, in
the event the portion of the Triggering Distribution applicable to one share of
Common Stock is equal to or greater than the Closing Sale Price on such record
date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon conversion the amount of
Cash such Holder would have received had such Holder converted each Note
immediately prior to the record date for such dividend or distribution. In the
event that such dividend or distribution is not so paid or made, the Applicable
Conversion Price shall again be adjusted to be the Applicable Conversion Price
that would then be in effect if such dividend or distribution had not been
declared.


      
        
           


        

        
          42

          
            

          

        

        
           


        

      


      


      (5)   In
the case the Company shall distribute shares of Capital Stock or similar equity
interests of any Subsidiary or business unit, (a “Spin-Off”), then in each such
case the Applicable Conversion Price shall be adjusted so that the Applicable
Conversion Price in effect immediately before the close of business on the
Trading Day immediately preceding the “ex” date with respect to that
distribution will be decreased by multiplying the Applicable Conversion Price by
a fraction (A) the numerator of which is the average of the Closing Sale Prices
of a share of Common Stock on each of the 10 consecutive Trading Days beginning
on the effective date of the spin-off and (B) the denominator of which is the
average of the Closing Sale Prices of a share of Common Stock on each of the 10
consecutive Trading Days beginning on the effective date of the Spin-Off plus
the average of the closing sale prices of the portion of those shares of capital
stock or similar equity interests so distributed applicable to one share of
Common Stock on each of those 10 consecutive Trading Days, provided, that for any
conversion within the 10 consecutive Trading Days following, and including, the
effective date of the Spin-Off, the adjustment to the Applicable Conversion
Price shall be calculated by reference to the number of consecutive Trading Days
between the effective date of the such Spin-Off and the Conversion Date rather
than 10 Trading Days.

      


      (6)   In
case any tender offer made by the Company or any of its Subsidiaries for Common
Stock shall expire and such tender offer (as amended upon the expiration
thereof) shall involve the payment of aggregate consideration in an amount
(determined as the sum of the aggregate amount of Cash consideration and the
aggregate fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be evidenced
by an Officers’ Certificate delivered to the Trustee and the Conversion Agent
thereof) of any other consideration) that exceeds an amount equal to the Current
Market Price per share of Common Stock as of the last date (the “Expiration Date”) tenders
could have been made pursuant to such tender offer (as it may be amended) (the
last time at which such tenders could have been made on the Expiration Date is
hereinafter called the “Expiration Time”), then,
immediately prior to the opening of business on the day after the Expiration
Date, the Applicable Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Applicable Conversion Price in
effect immediately prior to 5:00 p.m. (New York City time) on the Expiration
Date by a fraction of which (A) the numerator shall be the product of the number
of shares of Common Stock outstanding (including tendered shares but excluding
any shares held in the treasury of the Company) immediately before the
Expiration Time multiplied by the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Date and (B) the
denominator shall be the sum of (x) the aggregate consideration (determined as
aforesaid) payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the “Purchased Shares”) and (y) the
product of the number of shares of Common Stock outstanding (less any Purchased
Shares and excluding any shares held in the treasury of the Company) immediately
after the Expiration Time and the Current Market Price per share of Common Stock
on the Trading Day next succeeding the Expiration Date. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer, but
the Company is permanently prevented by applicable law from effecting any or all
such purchases or any or all such purchases are rescinded, the Applicable
Conversion Price shall again be adjusted to be the Applicable Conversion Price
which would have been in effect based upon the number of shares actually
purchased. If the application of this Section 6.5(a)(6) to any tender offer
would result in an increase in the Applicable Conversion Price, no adjustment
shall be made for such tender offer under this Section
6.5(a)(6).


      
        
           


        

        
          43

          
            

          

        

        
           


        

      


      


      For
purposes of this Section 6.5(a)(6), the term “tender offer” shall mean and
include both tender offers and exchange offers, all references to “purchases” of
shares in tender offers (and all similar references) shall mean and include both
the purchase of shares in tender offers and the acquisition of shares pursuant
to exchange offers, and all references to “tendered shares” (and all similar
references) shall mean and include shares tendered in both tender offers and
exchange offers.

      


      For the
avoidance of any doubt, any adjustments to the Applicable Conversion Price
pursuant to this section shall be made through the date on which payment
pursuant to Section 6.2 is made (without regard to the intervening occurrence of
the Stated Maturity, should that occur).

      


      (b)   No Adjustment.
Notwithstanding the provisions of Section 6.5(a), no adjustment in the
Applicable Conversion Price shall be required unless the adjustment would result
in a change of at least 1% in the Applicable Conversion Price as last adjusted;
provided, however, that
any adjustments which by reason of this Section 6.5(b) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment, regardless of whether the aggregate adjustment is less than 1%,
within one year of the first such adjustment carried forward, upon redemption of
the Notes by the Company, upon required purchases of the Notes in connection
with a Fundamental Change and five Business Days prior to Maturity. Except as
otherwise provided herein, the Applicable Conversion Price will not be adjusted
for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock or carrying the right to purchase Common Stock or
any such security. No adjustment to the Applicable Conversion Price will be
required in respect of any transaction that Holders will participate in without
conversion of the Notes. The Company will promptly provide notice of any such
adjustment to the Trustee and the Conversion Agent.

      


      (c)   Reduction in the Applicable
Conversion Price due to Taxes. The Company shall be entitled to make such
reductions in the Applicable Conversion Price, for the remaining term of the
Notes or any shorter term, in addition to those required by clause (a) of this
Section 6.5, as the Board of Directors of the Company considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of Common
Stock or rights to purchase Common Stock resulting from any stock dividend or
distribution, subdivision of shares, distribution of rights or warrants to
purchase or subscribe for stock or securities, distributions of securities
convertible into or exchangeable for stock hereafter made by the Company to its
stockholders or from any event treated as such for income tax purposes. The
Company shall have the power to resolve any ambiguity or correct any error in
this clause (c) and its actions in so doing shall, absent manifest error, be
final and conclusive.


      
        
           


        

        
          44

          
            

          

        

        
           


        

      


      


      (d)   Temporary Reduction in the
Applicable Conversion Price. To the extent permitted by applicable law
and rules of any stock exchange on which the Common Stock is then listed, the
Company from time to time may reduce the Applicable Conversion Price by any
amount for any period of time if the period is at least 20 Business Days and the
Board of Directors shall have made a determination that such reduction would be
in the best interest of the Company. Whenever the Applicable Conversion Price is
reduced pursuant to the preceding sentence, the Company shall provide notice of
any reduction in the Applicable Conversion Price to the Holders in the manner
provided in the Indenture, with a copy to the Trustee and Conversion Agent, at
least 15 days prior to the date such reduced Applicable Conversion Price takes
effect, and such notice shall state the reduced Applicable Conversion Price and
the period during which it will be in effect.

      


      (e)   Qualifying Fundamental
Change Make-Whole Adjustment. If a Qualifying Fundamental Change occurs
prior to March 15, 2013, upon conversion of the Notes pursuant to Section 5.8,
the Applicable Conversion Price of the Notes being converted by such Holder at
that time shall be decreased, which will cause the Applicable Conversion Rate to
increase by an additional number of shares of Common Stock (the “Additional Shares”) determined
by reference to the table below.

       

      (1)   For
the avoidance of doubt, the adjustment provided for in this Section 6.5(e) shall
be made only with respect to the Notes converted in connection with such
Qualifying Fundamental Change and shall not be effective as to any Notes not so
converted. Conversion of a given Note shall be considered to be “in connection
with” a given Fundamental Change if that Note is surrendered for conversion
during the conversion period provided for in respect of such Fundamental Change
pursuant to Section 6.1(b). The adjustment provided for in this Section 6.5(e)
shall be made only if the Qualifying Fundamental Change actually occurs or
becomes effective.

      


      (2)   For
purposes of determining the applicable number of Additional Shares:

      


      (i)
“Effective Date” shall
mean the date the Qualifying Fundamental Change occurs or becomes effective;
and

      


      (ii)
“Stock Price” shall
mean:

      


      (A)   in
the case of a Qualifying Fundamental Change described in clause (ii) of the
definition of Change in Control, the price paid per share of Common Stock in the
Change in Control, unless the holders of Common Stock receive only Cash in such
Qualifying Fundamental Change, in which event “Stock Price” shall mean the Cash
amount paid per share; and

      


      (B)   in
the case of any Qualifying Fundamental Change described in clause (i) or (ii) of
the definition of Change of Control, the average of the last reported Closing
Sale Prices of Common Stock over the five consecutive Trading Day period ending
on the Trading Day preceding the Effective Date of such Qualifying Fundamental
Change.


      
        
           


        

        
          45

          
            

          

        

        
           


        

      


      


      The
following table expressly sets forth the increase in the Conversion Rate,
expressed as a number of Additional Shares to be added per $1,000 initial
principal amount of Notes as a result of a Fundamental Change.

       

      
        
          


        

        
          	 	 	
                  Stock
      Price

                	 
	
                  Effective
      Date

                	 	$	18.37	 	 	$	20.00	 	 	$	22.00	 	 	$	24.00	 	 	$	26.00	 	 	$	28.00	 	 	$	30.00	 	 	$	35.00	 	 	$	40.00	 	 	$	45.00	 	 	$	50.00	 	 	$	60.00	 	 	$	70.00	 	 	$	80.00	 
	
                  March
      12, 2008

                	 	 	11.9000	 	 	 	11.9000	 	 	 	10.8200	 	 	 	9.1800	 	 	 	7.8400	 	 	 	6.7500	 	 	 	5.8400	 	 	 	4.1400	 	 	 	2.9900	 	 	 	2.1800	 	 	 	1.6000	 	 	 	0.8600	 	 	 	0.4400	 	 	 	0.0000	 
	
                  March
      15, 2009

                	 	 	11.9000	 	 	 	11.9000	 	 	 	11.2100	 	 	 	9.4400	 	 	 	8.0200	 	 	 	6.8500	 	 	 	5.8900	 	 	 	4.1100	 	 	 	2.9200	 	 	 	2.1000	 	 	 	1.5200	 	 	 	0.7800	 	 	 	0.3800	 	 	 	0.0000	 
	
                  March
      15, 2010

                	 	 	11.9000	 	 	 	11.9000	 	 	 	11.2500	 	 	 	9.3600	 	 	 	7.8600	 	 	 	6.6400	 	 	 	5.6400	 	 	 	3.8200	 	 	 	2.6400	 	 	 	1.8400	 	 	 	1.2900	 	 	 	0.6100	 	 	 	0.2600	 	 	 	0.0000	 
	
                  March
      15, 2011

                	 	 	11.9000	 	 	 	11.9000	 	 	 	10.6700	 	 	 	8.6900	 	 	 	7.1300	 	 	 	5.8800	 	 	 	4.8900	 	 	 	3.1200	 	 	 	2.0300	 	 	 	1.3200	 	 	 	0.8600	 	 	 	0.3300	 	 	 	0.0900	 	 	 	0.0000	 
	
                  March
      15, 2012

                	 	 	11.9000	 	 	 	11.5900	 	 	 	8.6900	 	 	 	6.8200	 	 	 	5.2700	 	 	 	4.0900	 	 	 	3.1800	 	 	 	1.7100	 	 	 	0.9100	 	 	 	0.4700	 	 	 	0.2200	 	 	 	0.0100	 	 	 	0.0000	 	 	 	0.0000	 
	
                  March
      15, 2013

                	 	 	11.8900	 	 	 	7.4500	 	 	 	2.9100	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 


        

      

       

      The Stock
Prices and Additional Share amounts set forth above are based upon an Initial
Conversion Price of $23.51. The Stock Prices set forth in the first row of the
table above shall be adjusted as of any date on which the Applicable Conversion
Price of the Notes is adjusted in accordance with Section 6.5(a) and shall be
adjusted by the same adjustment factor applied to the Applicable Conversion
Price pursuant to Section 6.5(a). The number of Additional Shares shall be
adjusted by the inverse application of the adjustment factor applied to the
Applicable Conversion Price pursuant to Section 6.5(a).

      


      Notwithstanding
anything in the Indenture to the contrary, the Company may not increase the
conversion rate to more than 54.4365 per $1,000 initial principal amount of the
Notes pursuant to the events described in this Section 6.5(e) (subject to
adjustment in the same manner as the Applicable Conversion Price in Section
6.5(a), by the inverse of the adjustment factor applied to the Applicable
Conversion Price in that section).

      


      If the
Stock Price is between two Stock Prices in the table or the Fundamental Change
Effective Date is between two Effective Dates in the table, the number of
Additional Shares will be determined by straight-line interpolation between the
number of Additional Shares set forth for the higher and lower Stock Prices and
the two Effective Dates, as applicable, based on a 365-day year. If the Stock
Price is in excess of $80.00 per share (subject to adjustment as set forth
herein), or if the Stock Price is less than $18.37 per share (subject to
adjustment as set forth herein), no Additional Shares will be added to the
Applicable Conversion Rate.

      


      (3)   The
Company will notify Holders, the Trustee and the Conversion Agent of the
anticipated Effective Date of such Qualifying Fundamental Change and issue a
press release as soon as practicable after the Company first determines the
anticipated Qualifying Fundamental Change Effective Date.

      


      (4)   Notwithstanding
Section 6.5 hereof, if a Holder surrenders the Notes for conversion in
connection with a Qualifying Fundamental Change, the Company will deliver the
portion of the conversion consideration that is payable on account of the
increase in the Conversion Rate pursuant to this Section 6.5(e) as soon as
practicable, but in no event after the third Business Day after the later of (i)
the date the Holder surrenders the Notes for conversion; or (ii) the Effective
Date of the Qualifying Fundamental Change.


      
        
           


        

        
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      (5) If a
Holder surrenders Notes in connection with a Qualifying Fundamental Change
announced by the Company, but such Qualifying Fundamental Change is not
consummated, then such Holder shall not be entitled to the increased Conversion
Rate pursuant to this Section 6.5(e).

      


      SECTION
6.6. Notice of
Adjustments of Conversion Price. Whenever the Applicable Conversion Price
is adjusted pursuant to Section 6.5 hereof:

      


      (a)   the
Company shall compute the adjusted Applicable Conversion Price in accordance
with Section 6.5 hereof and shall prepare an Officers’ Certificate setting forth
(1) the adjusted Applicable Conversion Price, (2) the clause of Section 6.5
pursuant to which such adjustment has been made, showing in reasonable detail
the facts upon which such adjustment is based, (3) the calculation of such
adjustment and (4) the date as of which such adjustment is effective, and such
certificate shall promptly be delivered to the Trustee and the Conversion Agent
(which such certificates shall be conclusive absent manifest error);
and

      


      (b)   upon
each such adjustment, a notice stating that the Applicable Conversion Price has
been adjusted and setting forth the adjusted Applicable Conversion Price shall
be required, and as soon as practicable after it is required, such notice shall
be provided by the Company to all Holders in accordance with Section
11.2.

      


      Neither
the Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate or the information and calculations
contained therein, except to exhibit the same to any Holder of Notes desiring
inspection thereof at its office during normal business hours.

      


      SECTION
6.7. Limitation on
Adjustments.

      


      (a)   The
Company shall not take any action that would result in an adjustment pursuant to
the foregoing provisions in this Article VI without complying with the rules of
any stock exchange on which the Common Stock is then listed (including, if
applicable, New York Stock Exchange rules requiring stockholder approval of
certain issuance of stock).

      


      (b)   The
Company shall not take any action that would result in an adjustment pursuant to
the foreign provisions of this Article VI if that adjustment would reduce the
Applicable Conversion Price below the then par value of the shares of Common
Stock issuance upon conversion of the Notes.

      


      SECTION
6.8. Effect of
Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.

      


      (a) If
any of the following shall occur, namely: (i) any reclassification or change of
shares of Common Stock issuable upon conversion of the Notes (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, or any other change
for which an adjustment is provided in Section 6.5); (ii) any consolidation or
merger or combination to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in any
reclassification of, or change (other than 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) in, outstanding shares of Common Stock; or (iii) any sale or
conveyance as an entirety or substantially as an entirety of the property and
assets of the Company, directly or indirectly, to any person, the Company, or
such successor, purchasing or transferee corporation, as the case may be, shall,
as a condition precedent to such reclassification, change, combination,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Note then outstanding
shall have the right to convert such Note into the kind and amount of shares of
stock and other securities and property (including Cash) receivable upon such
reclassification, change, combination, consolidation, merger, sale or conveyance
by a Holder of the number of shares of Common Stock deliverable upon conversion
of such Note immediately prior to such reclassification, change, combination,
consolidation, merger, sale or conveyance (the “Reference Property”). Such
supplement indenture shall provide for adjustments of the Applicable Conversion
Price which shall be as nearly equivalent as may be practicable to the
adjustments of the Applicable Conversion Price provided for in this Article VI.
If, in the case of any such consolidation, merger, combination, sale or
conveyance, the stock or other securities and property (including Cash)
receivable thereupon by a Holder of Common Stock include shares of stock or
other securities and property of a person other than the successor, purchasing
or transferee corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, 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 Notes as the Board of Directors
shall reasonably consider necessary by reason of the foregoing. The provisions
of this Section 6.8 shall similarly apply to successive reclassifications,
changes, combinations, consolidations, mergers, sales or conveyances. The
Trustee has no duty to determine whether a supplemental indenture under this
Section 6.8 need be entered into.


      
        
           


        

        
          47

          
            

          

        

        
           


        

      

      


      In the
event the Company shall execute a supplemental indenture pursuant to this
Section 6.8, the Company shall promptly file with the Trustee (x) an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or other securities or property (including Cash) receivable by Holders
of the Notes upon the conversion of their Notes after any such
reclassifications, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
of such supplemental indenture to all Holders.

      


      Throughout
this Article VI, if Common Stock has been replaced by Reference Property as a
result of any reclassification, change, combination, consolidation, merger, sale
or conveyance, references to Common Stock shall be changed to Reference
Property.

      


      (b) In
the event that Holders of Common Stock have the opportunity to elect the form of
consideration to be received in any transaction described in Section 6.8(a), the
Company shall make adequate provision so that the Holders of the Notes, treated
as a single class, have the timely opportunity to determine the composition of
the Reference Property that will replace any Common Stock that would otherwise
be deliverable upon conversion of the Notes. The Reference Property will be
based on the blended, weighted average of elections made by Holders of the Notes
and will be subject to any limitations applicable to all Holders of Common Stock
(such as pro rata reductions made to any portion of the consideration payable).
The determination of the Reference Property will apply to all of the Notes and
the Company shall notify the Trustee of the composition of the Reference
Property promptly after it is determined.


      
        
           


        

        
          48

          
            

          

        

        
           


        

      

      


      All
calculations under this Article VI shall be made to the nearest 1/10,000th of a
share, as the case may be. The Company will not take any action that would
result in an adjustment pursuant to this Article VI without complying with the
shareholder approval rules of The New York Stock Exchange or any stock exchange
on which the Common Stock is listed at the relevant time.

      


      SECTION
6.9. Rights Issued in
Respect of Common Stock. Rights or warrants distributed by the Company to
all holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”):

      


      (1)   are
deemed to be transferred with such shares of Common Stock;

      


      (2)   are
not exercisable; and

      


      (3)   are
also issued in respect of future issuances of Common Stock,

      


      shall not
be deemed distributed for purposes of Section 6.5(a) (and no adjustment to the
Applicable Conversion Price under Section 6.5(a) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Applicable Conversion Price shall be made under Section
6.5(a) hereof. In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Applicable Conversion Price under Section 6.5(a) hereof was made, (1) in the
case of any such rights or warrants which shall all have been redeemed or
purchased without exercise by any holders thereof, the Applicable Conversion
Price shall be readjusted upon such final redemption or purchase to give effect
to such distribution or Trigger Event, as the case may be, as though it were a
Cash distribution, equal to the per share redemption or purchase price received
by a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or purchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Applicable Conversion Price shall
be readjusted as if such rights and warrants had not been issued. If any such
right or warrant, including any such existing rights or warrants distributed
prior to the date of this Indenture, are subject to events, upon the occurrence
of which such rights or warrants become exercisable to purchase different
securities, evidences of Indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof).


      
        
           


        

        
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      SECTION
6.10. Responsibility
of Trustee and Conversion Agent for Conversion Provisions. The Trustee
and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Notes to determine whether any facts exist which
may require any adjustment of the Conversion Rate, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into.
Neither the Trustee nor any Conversion Agent shall be accountable with respect
to the validity or value (or the kind or amount) of any Common Stock, or of any
other securities or property or cash, which may at any time be issued or
delivered upon the conversion of any Note and it or they do not make any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make or calculate
any cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of
any Note for the purpose of conversion; and the Trustee and any Conversion Agent
shall not be responsible for any failure of the Company to comply with any of
the covenants of the Company contained in this Article VI.

      


      ARTICLE
VII

      


      DEFAULTS
AND REMEDIES

      


      SECTION
7.1. Events of
Default. Each of the following shall constitute an “Event of
Default”:

      


      (1)   the
Company fails to pay the principal of any Note when due;

      


      (2)   the
Company fails to pay shares of Common Stock owing upon conversion of any Note
within the time period set forth in Section 6.3 (including any Additional
Shares);

      


      (3)   the
Company defaults in any payment of interest amounts, (including Liquidated
Damages or Additional Interest, if any) on any Note when due, if such failure
continues for a period of 30 days past the applicable due date;

      


      (4)   the
Company fails to perform any other covenant required of the Company in this
Indenture if such failure continues for 60 days after notice of a default from
the Trustee or after receipt by the Company and the Trustee of a notice of
default from the Holders of at least 25% in principal amount of the outstanding
Notes;

      


      (5)   the
Company fails to pay the Purchase Price or Redemption Price of any Note when the
same becomes due and payable pursuant to Article V hereof;

      


      (6)   the
Company fails to provide a timely notice of a Fundamental Change as required by
Section 5.8(b);

      


      (7)   the
Company defaults in the payment of any Indebtedness of the Company or one of its
Significant Subsidiaries in an outstanding principal amount in excess of
$10,000,000 when the same becomes due and payable at the final maturity of such
Indebtedness as such final maturity of such indebtedness may be extended by
waiver or amendment or is accelerated and such indebtedness is not discharged,
or such default in payment or acceleration is not cured or rescinded within 30
days after receipt by the Company of a notice of default from the Trustee or the
receipt by the Trustee and the Company of a notice of default from the Holders
of at least 25% of the outstanding Notes;


      
        
           


        

        
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      (8)   the
Company or any of its Significant Subsidiaries fail to pay one or more final and
non-appealable judgments entered by a court or courts of competent jurisdiction,
the aggregate uninsured or unbonded portion of which is in excess of $10,000,000
and such judgments are not paid, discharged or stayed within 30
days;

      


      (9)   the
Company or any of its Significant Subsidiaries pursuant to or within the meaning
of any Bankruptcy Law:

      


      (i)
commences a voluntary case;

      


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

      


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

      


      (iv)
makes a general assignment for the benefit of its creditors or takes any
comparable action under any foreign laws relating to insolvency;
and

      


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

      


      (i) is
for relief against the Company or any of its Significant Subsidiaries in an
involuntary case;

      


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

      


      (iii)
orders the winding up or liquidation of the Company or any of its Significant
Subsidiaries; or

      


      (iv)
grants any similar relief under any applicable foreign or state laws and in each
such case the order or decree remains unstayed and in effect for 60
days.

      


      The
foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental
body.

      


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


      
        
           


        

        
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      The
Company shall deliver to the Trustee, as promptly as reasonably practicable and
in any event within 30 days after the occurrence thereof, written notice in the
form of an Officers’ Certificate of any Event of Default and any Default of
which the Company is aware, the status of any such Event of Default or any
Default and what action the Company is taking or proposes to take with respect
thereto.

      


      SECTION
7.2. Acceleration. Except
as provided in Section 7.13, if an Event of Default (other than an Event of
Default specified in Section 7.1(9) or Section 7.1(10) with respect to the
Company and except as otherwise provided in Section 7.13) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding by notice to the
Company and the Trustee, may declare the principal amount of Notes outstanding
plus accrued and unpaid interest, if any (including Liquidated Damages and
Additional Interest, if any), on all the outstanding Notes to be immediately due
and payable. Upon such a declaration, such accelerated amount shall be due and
payable immediately. If an Event of Default specified in Section 7.1(9) or
Section 7.1(10) with respect to the Company occurs and is continuing, the
principal amount of Notes outstanding plus accrued and unpaid interest, if any
(including Liquidated Damages and Additional Interest, if any), on all the Notes
shall, automatically and without any action by the Trustee or any Holder, become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. The Holders of a majority in an aggregate
principal amount of the Notes at the time outstanding by notice to the Trustee
and the Company and without notice to any other Holder may rescind any
declaration of acceleration if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the principal amount plus accrued and unpaid
interest, if any (including Liquidated Damages and Additional Interest, if any),
that have become due solely as a result of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent
thereto.

      


      SECTION
7.3. Other
Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount
plus accrued and unpaid interest, if any (including Liquidated Damages and
Additional Interest, if any), on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.

      


      The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of the Notes 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 remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.

      


      SECTION
7.4. Waiver of Past
Defaults. Subject to Section 7.2 and Section 10.2 hereof, the Holders of
a majority in aggregate principal amount of the Notes at the time outstanding by
notice to the Trustee and without notice to any other Holder may waive any past
Default and its consequences except (a) an Event of Default described in Section
7.1(1) and Section 7.1(3), (b) a Default in respect of a covenant that under
Section 10.2 cannot be amended without the consent of each Holder, or (c) a
failure to pay shares of Common Stock upon conversion of any Note (including any
Additional Shares) within the time periods set forth in Section 6.3. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.


      
        
           


        

        
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      SECTION
7.5. Control by
Majority. The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may direct in writing the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 8.1, that the Trustee determines is unduly prejudicial to the
rights of other Holders or would potentially involve the Trustee in personal
liability. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to the Trustee in its reasonable discretion
against all losses and expenses caused by taking or not taking such
action.

      


      SECTION
7.6. Limitation on
Suits. A Holder may not pursue any remedy with respect to this Indenture
or the Notes or for the appointment of a receiver or a Trustee, except in the
case of a suit instituted by a Holder for the enforcement of the payment of
principal or interest (including Liquidated Damages and Additional Interest, if
any), and only if:

      


      (a)   such
Holder shall have previously given to the Trustee written notice of a continuing
Event of Default;

      


      (b)   the
Holders of at least 25% in aggregate principal amount of the Notes at the time
outstanding make a written request, and such Holder or Holders shall have
offered reasonable indemnity to the Trustee to pursue such remedy;
and

      


      (c)   the
Trustee has failed to institute such proceeding within 60 days after such
written notice, request and offer and has not received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request within 60 days after such written notice, request
and offer.

      


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

      


      SECTION
7.7. Rights of Holders
to Receive Payment. Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of the principal amount,
Redemption Price, Purchase Price, Fundamental Change Purchase Price or interest,
if any (including Liquidated Damages and Additional Interest, if any), in
respect of the Notes held by such Holder, on or after the respective due dates
expressed in such Holder’s Notes or any Redemption Date, Purchase Date or
Fundamental Change Purchase Date, and to convert the Notes in accordance with
Article VI, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected
without the consent of such Holder.

      


      SECTION
7.8. Collection Suit
by Trustee. If an Event of Default specified in Section 7.1(1) or Section
7.1(3) 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
then due and owing (together with interest on any unpaid interest, including
Liquidated Damages and Additional Interest, to the extent lawful) and the
amounts provided for in Section 8.7.


      
        
           


        

        
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      SECTION
7.9. Trustee May File
Proofs of Claim. The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders allowed in any judicial proceedings relative to
the Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 8.7.

      


      SECTION
7.10. Priorities. If the
Trustee collects any money or property pursuant to this Article VII, it shall
pay out the money or property in the following order:

      


      FIRST: to
the Trustee, Registrar, Conversion Agent and Paying Agent for amounts due under
Section 8.7;

      


      SECOND:
to Holders for amounts due and unpaid on the Notes for the principal amount,
Redemption Price, Purchase Price, Fundamental Change Purchase Price or interest,
if any (including Liquidated Damages and Additional Interest, if any), as the
case may be, ratably, without preference or priority of any kind, according to
such amounts due and payable on the Notes; and

      


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

      


      The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 7.10. At least 15 days before such record date, the
Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and the amount to be paid.

      


      SECTION
7.11. 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 of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 7.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 7.7 or a suit by Holders of more than 10% in
aggregate principal amount of the Notes at the time outstanding.

      


      SECTION
7.12. Waiver of Stay
or Extension Laws. The Company (to the extent it may lawfully do so)
shall not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.


      
        
           


        

        
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      SECTION
7.13. Additional
Interest. Notwithstanding any other provision of this Indenture, at the
election of the Company, for the first 180 days after the occurrence of an Event
of Default specified in Section 7.1(a)(4) relating to any failure by the Company
to comply with the requirements of Section 314(a)(1) of the TIA, the sole remedy
for such an Event of Default shall consist exclusively of the right to receive
additional interest on the Notes at an annual rate equal to 0.50% of the
principal amount (“Additional
Interest”) of the Notes. In the event that the Company does not elect to
pay the Additional Interest upon an Event of Default in accordance with this
paragraph, the Notes will be subject to acceleration as provided herein. The
Additional Interest will accrue on all outstanding Notes from and including the
date on which an Event of Default relating to a failure to comply with the
requirements of Section 314(a)(1) of the TIA first occurs up to but not
including the 181st day thereafter (or such earlier date on which the Event of
Default relating to such obligations shall have been cured or waived pursuant to
Section 7.4). On such 181st day (or earlier, if such Event of Default is cured
or waived pursuant to Section 7.4 prior to such 181st day), such Additional
Interest will cease to accrue and shall become due and payable and, if such
Event of Default has not been cured or waived pursuant to Section 7.4 prior to
such 181st day, then the Trustee or the holders of not less than 25% in
principal amount of the Notes may declare the principal of and accrued and
unpaid interest (including Liquidated Damages and Additional Interest, if any)
on all such Notes to be due and payable immediately. This provision shall not
affect the rights of Holders in the event of the occurrence of any other Event
of Default. If the Company elects to pay the Additional Interest in accordance
with this paragraph, the Company shall notify, in the manner provided for in
Section 11.2, the Holders and the Trustee of such election at any time on or
before the close of business on the date on which such Event of Default first
occurs. If the Additional Interest is payable under this Section 7.1, the
Company shall deliver to the Trustee an Officers’ Certificate to that effect
stating the date on which the Additional Interest is payable. Unless and until a
Responsible Officer receives at the Corporate Trust Office such a certificate,
the Trustee may assume without inquiry that no Additional Interest is payable.
If the Additional Interest has been paid by the Company directly to the Persons
entitled to such fee, the Company shall deliver to the Trustee an Officers’
Certificate setting forth the particulars of such payment.

      


      ARTICLE
VIII TRUSTEE

      


      SECTION
8.1. Duties of
Trustee.

      


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

      


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


      
        
           


        

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

      


      (2)   in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates, directions, notices or opinions furnished to the
Trustee and conforming to the requirements of the Indenture. However, in the
case of any such certificates, directions, notices or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).

      


      (c)   The
Trustee may not be relieved from liability for its own negligent action, its
own

      


      negligent
failure to act or its own willful misconduct, except that:

      


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

      


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

      


      (3)   the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
7.5.

      


      (d)   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.

      


      (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.

      


      (f)   Cash
or Common Stock held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.

      


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

      


      (h) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 8.1 and to the provisions of the TIA upon qualification of the
Indenture under the TIA.

      


      (i) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
unless such Holders shall have provided to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses (including reasonable
attorneys’ fees and expenses) and liabilities that might be incurred by it in
compliance with such request or direction.


      
        
           


        

        
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      SECTION
8.2. Rights of
Trustee.

      


      (a)   The
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any paper or document believed by it to be genuine and to have
been signed or presented by the proper Person or Persons. The Trustee need not
investigate any fact or matter stated in the document.

      


      (b)   Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officers’
Certificate or Opinion of Counsel.

      


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

      


      (d)   The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided, however, that the
Trustee’s conduct does not constitute bad faith, willful misconduct or
negligence.

      


      (e)   The
Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel appointed with due care with respect to legal matters relating to
this Indenture and the Notes shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.

      


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

      


      (g)   The
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except, (i) during any period it is serving as Registrar and Paying Agent for
the Notes, any Event of Default occurring pursuant to Sections 7.1(1), 7.1(2),
7.1(4) or 7.1(5) or (ii) any Default or Event of Default of which a Responsible
Officer shall have received written notification or obtained actual knowledge.
The term “actual knowledge” shall mean the actual fact or statement of knowing
by a Responsible Officer without independent investigation with respect
thereto.

      


      (h)   
Delivery of the reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


      
        
           


        

        
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      (i)  
In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.

      


      (j)  
The rights, privileges, protections, immunities and benefits given to the
Trustee, including 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.

      


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

      


      SECTION
8.3. Individual Rights
of Trustee. The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Conversion Agent, Registrar, co-registrar or co-paying agent may
do the same with like rights. However, the Trustee must comply with Sections
8.10 and 8.11. In addition, the Trustee shall be permitted to engage in
transactions with the Company; provided, however, that if the Trustee
acquires any conflicting interest (as such term is defined in Section 310(b) of
the TIA) the Trustee must (i) eliminate such conflict within 90 days of
acquiring such conflicting interest, (ii) apply to the SEC for permission to
continue acting as Trustee or (iii) resign as Trustee hereunder.

      


      SECTION
8.4. Trustee’s
Disclaimer. The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company’s use of the Notes or the proceeds from
the Notes, and it shall not be responsible for any statement of the Company in
this Indenture or in any document issued or offering circular (or similar
document) used in connection with the sale of the Notes or in the Notes other
than the Trustee’s certificate of authentication or for the use or application
of any funds received by any Paying Agent other than the Trustee.

      


      SECTION
8.5. Notice of
Defaults. If a Default or Event of Default occurs and is continuing and
if a Responsible Officer has actual knowledge thereof, the Trustee shall mail to
each Holder notice of the Default or Event of Default within 90 days after it
occurs unless such Default or Event of Default has been cured or waived. Except
in the case of a Default or Event of Default in payment of principal of, or
interest on any Note (including payments pursuant to the required repurchase
provisions of such Note, if any), the Trustee may withhold the notice if and so
long as its board of directors, a committee of its board of directors or a
committee of its Responsible Officers and/or a Responsible Officer in good faith
determines that withholding the notice is in the interests of registered
Holders.


      
        
           


        

        
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      SECTION
8.6. Reports by
Trustee to Holders. As promptly as practicable after each December 31
beginning with the December 31 following the date of this Indenture, and in any
event prior to March 31 in each year thereafter, the Trustee shall mail to each
Holder a brief report dated as of such December 31 that complies with TIA Sec.
313(a) upon qualification of the Indenture under the TIA, if and to the extent
such report may be required by the TIA. The Trustee also shall comply with TIA
Sec. 313(b) upon qualification of the Indenture under the TIA. The Trustee shall
also transmit by mail all reports required by TIA Sec. 313(c) upon qualification
of the Indenture under the TIA.

      


      A copy of
each report at the time of its mailing to Holders shall be filed with the SEC
and each stock exchange (if any) on which the Notes are listed. The Company
agrees to notify promptly the Trustee in writing whenever the Notes become
listed on any stock exchange and of any delisting thereof.

      


      SECTION
8.7. Compensation and
Indemnity The Company covenants and agrees: (a) to pay to the Trustee,
the Registrar, the Conversion Agent and the Paying Agent from time to time, and
the Trustee, the Registrar, the Conversion Agent or the Paying Agent shall be
entitled to such compensation for all services rendered by it hereunder as shall
be agreed by the Company and the Trustee, the Registrar, the Conversion Agent or
the Paying Agent in writing (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust); (b) to
reimburse the Trustee, the Registrar, the Conversion Agent and the Paying Agent
and each predecessor Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation, fees, and the expenses and disbursements of its counsel and of all
agents and other Persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or bad faith; and (c)
to indemnify the Trustee, the Registrar, the Conversion Agent and the Paying
Agent and each predecessor Trustee for, and to hold it harmless against, any
loss, liability, damage, claim or expense, including taxes, if any (other than
taxes based upon, determined by or measured by the income of the Trustee, the
Registrar, the Conversion Agent or the Paying Agent), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including enforcement of this Section 8.7. The obligations of
the Company under this Section 8.7 to compensate and indemnify the Trustee, the
Registrar, the Conversion Agent and the Paying Agent and each predecessor
Trustee and to pay or reimburse the Trustee, the Registrar, the Conversion Agent
and the Paying Agent and each predecessor Trustee for expenses, fees,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture, the
resignation or removal of the Trustee, the Registrar, the Conversion Agent or
the Paying Agent or the termination of this Indenture. To secure the obligations
of the Company to the Trustee, the Registrar, the Conversion Agent and the
Paying Agent under this Section 8.7, the Trustee, the Registrar, the Conversion
Agent and the Paying Agent shall have a prior Lien upon all property and funds
held or collected by the Trustee or the Paying Agent as such, except funds and
property paid by the Company and held in trust for the benefit of the Holders of
particular Notes. When the Trustee, the Registrar, the Conversion Agent or the
Paying Agent incurs expenses or renders services after an Event of Default
specified in Section 7.1(9) or (10) occurs, such expenses and compensation for
services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor statute.


      
        
           


        

        
          59

          
            

          

        

        
           


        

      

      


      SECTION
8.8. Replacement of
Trustee. The Trustee may resign at any time by so notifying the Company.
The Holders of a majority in principal amount of the Notes may remove the
Trustee by so notifying the Company and the Trustee in writing and the Company
may appoint a successor Trustee. The Company shall remove the Trustee
if:

      


      (1)   the
Trustee fails to comply with Section 8.10;

      


      (2)   the
Trustee is adjudged bankrupt or insolvent;

      


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

      


      (4)   the
Trustee otherwise becomes incapable of acting.

      


      If the
Trustee resigns or is removed by the Company or by the Holders of a majority in
principal amount of the Notes and the Company does not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Holders of a majority in aggregate principal amount of the Notes
may appoint 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 under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee upon payment of any fees and expenses due and owing to
it.

      


      If the
Company has not appointed a successor Trustee within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in
principal amount of the Notes may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor
Trustee.

      


      If the
Trustee fails to comply with Section 8.10, unless the Trustee’s duty to resign
is stayed as provided in TIA Sec. 310(b), any Holder who has been a bona fide
holder of the Notes for six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.

      


      Notwithstanding
the replacement of the Trustee pursuant to this Section 8.8, the Company’s
obligations under Section 8.7 shall continue for the benefit of the retiring
Trustee.

      


      SECTION
8.9. Successor Trustee
by Merger. If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor
Trustee.


      
        
           


        

        
          60

          
            

          

        

        
           


        

      

      


      In case
at the time such successor or successors by merger, conversion or consolidation
to the Trustee shall succeed to the trusts created by this Indenture, any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall
have.

      


      SECTION
8.10. Eligibility;
Disqualification. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1)
and (2) and which shall have a combined capital and surplus of at least
$50,000,000, and have a Corporate Trust Office in the Borough of Manhattan in
The City of New York, State of New York. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of any
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect hereinafter specified in this Article.

      


      SECTION
8.11. Preferential
Collection of Claims Against Company. If and when the Trustee shall be or
become a creditor of the Company, the Trustee shall comply with TIA Sec. 311(a),
excluding any creditor relationship listed in TIA Sec. 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Sec. 311(a) to the extent
indicated.

      


      ARTICLE
IX

      


      SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS

      


      SECTION
9.1. Discharge of
Liability on Notes. When (a) the Company delivers to the Registrar for
cancellation all outstanding Notes (other than Notes replaced pursuant to
Section 2.7) for cancellation or (b) after all outstanding Notes have become due
and payable and the Company irrevocably deposits with the Trustee cash
sufficient to pay and discharge all amounts due and owing on all outstanding
Notes (other than Notes replaced pursuant to Section 2.7) and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 2.7, cease to be of further effect; provided, however,
notwithstanding the foregoing, the Company shall not discharge its obligations
with respect to the conversion and delivery of shares of the Company’s Common
Stock, if any, in connection therewith until such time as all payment and
delivery of shares of the Company’s Common Stock has been made. The Trustee
shall acknowledge satisfaction and discharge of this Indenture with respect to
the Notes on demand of the Company accompanied by an Officers’ Certificate and
an Opinion of Counsel and at the cost and expense of the
Company.


      
        
           


        

        
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      SECTION
9.2. Repayment to the
Company. The Trustee and the Paying Agent shall promptly turn over to the
Company upon written request any excess money or securities held by them at any
time.

      


      Subject
to any applicable abandoned property law, the Trustee and the Paying Agent shall
pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years, and, thereafter,
Holders entitled to the money must look to the Company for payment as general
creditors.

      


      ARTICLE
X

      


      SUPPLEMENTAL
INDENTURES AND AMENDMENTS

      


      SECTION
10.1. Without Consent
of Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Company, and the Trustee, at any time
and from time to time, may amend, waive, modify or supplement this Indenture or
the Notes for any of the following purposes:

      


      (a)   evidence
to the assumption of the Company’s obligations by a successor person under
Article IV;

      


      (b)   to
surrender any of the Company’s rights or powers under this
Indenture;

      


      (c)   to
add covenants or Events of Default for the benefit of Holders of
Notes;

      


      (d)   to
add guarantees with respect to the Notes, including to add guarantors, or to
secure the Securities;

      


      (e)   to
conform the terms of the Notes and the Indenture to the description thereof
contained in the offering memorandum related to the Notes;

      


      (f)   
to modify or amend this Indenture to permit the qualification of this Indenture
or any supplemental indenture under the TIA;

      


      (g)   to
add covenants that would benefit the Holders of the Notes or to surrender any
rights of the Company under this Indenture;

      


      (h)  
to add Events of Default with respect to the Notes;

      


      (i)   
to make any change that does not adversely affect any outstanding Notes in any
material respect;

      


      (j)   
to evidence and provide for the acceptance of the appointment of a successor
Trustee hereunder;

      


      (k)  
to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date of this
Indenture;


      
        
           


        

        
          62

          
            

          

        

        
           


        

      

      


      (l)   
to establish the forms or terms of the Securities pursuant to Article II and to
change the procedures for transferring and exchanging Notes so long as such
change does not adversely affect the Holders of any Outstanding Notes;
and

      


      (m) 
to make any other change to this Indenture or forms or terms of the Securities
so long as such change will not adversely affect the interests of the Holders of
the Notes.

      


      SECTION
10.2. With Consent of
Holders. With the consent of the Holders of a majority in aggregate
principal amount of the Notes at the time outstanding, the Company and the
Trustee may amend or supplement this Indenture or the Notes. However, no
amendment, supplement or waiver may be made without the consent of each Holder
of outstanding Notes affected thereby if such amendment, supplement or waiver
would:

      


      (a)   change
the stated maturity of the principal of, or the date any installment of interest
(including Liquidated Damages and Additional Interest, if any) is due on the
Notes;

      


      (b)   reduce
the principal amount of or interest amounts (including Liquidated Damages and
Additional Interest, if any) on the Notes;

      


      (c)   reduce
the amount of principal payable upon acceleration of the maturity of the
Notes;

      


      (d)   change
the currency of payment of principal, or interest amounts (including Liquidated
Damages and Additional Interest, if any) on the Notes;

      


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

      


      (f)   
modify provisions with respect to the purchase rights of Holders pursuant to
Section 5.7 or Section 5.8 in a manner adverse to the Holders of the
Notes;

      


      (g)   adversely
affect the right of Holders to convert the Notes;

      


      (h) 
 reduce the percentage of the aggregate principal amount of outstanding
Notes where Holders must consent to a modification or amendment;
and

      


      (i)   
modify any provision with respect to modification and waiver, except to increase
any such percentage required for modification or waiver or to provide for
consent of each affected Holder of Notes.

      


      It shall
not be necessary for the consent of the Holders of the Notes affected thereby
under this Section 10.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.

      


      It shall
not be necessary for the consent of the Holders under this Section 10.2 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.


      
        
           


        

        
          63

          
            

          

        

        
           


        

      

      


      After an
amendment under this Section 10.2 becomes effective, the Company shall mail to
each Holder a notice briefly describing the amendment.

      


      SECTION
10.3. Execution of
Supplemental Indentures, Agreements and Waivers. In executing any
supplemental indenture, agreement, instrument or waiver permitted by this
Article X or the modifications thereby of the Indenture, the Trustee shall be
entitled to receive, and (subject to Section 8.1 hereof) shall be fully
protected in relying upon, an Opinion of Counsel and an Officers’ Certificate
from each obligor under the Notes entering into such supplemental indenture,
agreement, instrument or waiver, each stating that the execution of such
supplemental indenture, agreement, instrument or waiver (a) is authorized or
permitted by this Indenture; (b) does not violate the provisions of any
agreement or instrument evidencing any other Indebtedness of the Company, or any
Subsidiary of the Company and (c) that all conditions precedent in the Indenture
relating to such supplemental indenture shall have been complied with. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement, instrument or waiver which affects the Trustee’s own
rights, duties or immunities under this Indenture, the Notes or
otherwise.

      


      SECTION
10.4. Effect of
Supplemental Indentures. Upon the execution of any supplemental indenture
under this Article X, this Indenture and the Notes, if applicable, shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture and the Notes, if applicable, as the case may be, for all
purposes, and every Holder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.

      


      SECTION
10.5. Compliance with
Trust Indenture Act. Every supplemental indenture or amendment to this
Indenture or the Notes shall comply with the TIA as then in effect upon
qualification of the Indenture under the TIA.

      


      SECTION
10.6. Reference in
Notes to Supplemental Indentures. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in a form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee, at the expense of the Company, upon
a Company Order in exchange for Outstanding Notes.

      


      SECTION
10.7. Revocation and
Effect of Consents and Waivers. A consent to an amendment or a waiver by
a Holder of a Note shall bind the Holder and every subsequent Holder of that
Note or portion of the Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent or waiver is not made on the
Note. However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Note or portion of the Note if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Holder. An amendment or waiver made pursuant to Section 10.2 shall become
effective upon receipt by the Trustee of the requisite number of written
consents.


      
        
           


        

        
          64

          
            

          

        

        
           


        

      

      


      The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date. No
such consent shall become valid or effective more than 120 days after such
record date.

      


      SECTION
10.8. Notation on or
Exchange of Notes. If an amendment changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note regarding the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company, in exchange for the Note, shall issue and the
Trustee, at the expense of the Company, shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Note shall not affect the validity of such amendment.

      


      ARTICLE
XI

      


      MISCELLANEOUS

      


      SECTION
11.1. Trust Indenture
Act Controls. Upon qualification of the Indenture under the TIA, if any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.

      


      SECTION
11.2. Notices.
Any notice or communication shall be in writing and delivered in person or
mailed by first-class mail addressed as follows:

      


      If to the
Company:

      


      Stillwater
Mining Company

      1321
Discovery Drive

      Billings,
MT 59102

      Attn:
John R. Stark

      


      If to the
Trustee:

      


      Law
Debenture Trust Company of New York

      400
Madison Avenue, 4th
Floor

      New York,
NY 10017

      Attn:
Vice President

      


      If to the
Registrar, Conversion Agent and Paying Agent:

      


      Deutsche
Bank Trust Company Americas

      60 Wall
Street, 27th
Floor

      New York,
NY 10005

      Attn:
Trust and Securities Services


      
        
           


        

        
          65

          
            

          

        

        
           


        

      

      


      The
Company on one hand or the Trustee on the other hand by notice to the other may
designate additional or different addresses for subsequent notices or
communications.

      


      Any
notice or communication mailed to a Holder shall be mailed to the Holder at the
Holder’s address as it appears on the Note Register and shall be sufficiently
given if so mailed within the time prescribed. Notices shall be deemed to have
been given as of the date of mailing.

      


      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.

      


      SECTION
11.3. Communication by
Holders with Other Holders. Upon qualification of the Indenture under the
TIA, Holders may communicate pursuant to TIA Sec. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes; the Trustee shall
comply with TIA Sec. 312(b) and the Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA Sec. 312(c).

      


      SECTION
11.4. Certificate and
Opinion as to Conditions Precedent. Upon any request or application by
the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall deliver to the Trustee an Officers’ Certificate
stating that all conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action, have been complied with and, if required by the
Trustee, an Opinion of Counsel stating that in the opinion of such counsel, all
such conditions precedent (to the extent of legal conclusions), if any, have
been complied with. Notwithstanding the foregoing, in the case of any such
request or application as to which the furnishing of any Officers’ Certificate
or Opinion of Counsel is specifically required by any provision of this
Indenture relating to such particular request or application, no additional
certificate or opinion need be furnished.

      


      SECTION
11.5. Statements
Required in Certificate or Opinion. Each certificate or opinion with
respect to compliance with a covenant or condition provided for in this
Indenture shall include:

      


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

      


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

      


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

      


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

      



      
        
           


        

        
          66

          
            

          

        

        
           


        

      

      


      In giving
an Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or such other certificates of Officer(s) as it may deem appropriate
and on certificates of public officials.

      


      SECTION
11.6. When Notes
Disregarded. In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Also, subject to
the foregoing, only Notes outstanding at the time shall be considered in any
such determination.

      


      SECTION
11.7. Rules by
Trustee, Paying Agent and Registrar. The Trustee may make reasonable
rules for action by or through a meeting of Holders. The Registrar and the
Paying Agent may make reasonable rules for their functions.

      


      SECTION
11.8. Governing
Law. This Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.

      


      SECTION
11.9. No Recourse
Against Others. No recourse for the payment of the principal of, or
interest on any Note and no recourse under or upon any obligation, covenant,
agreement of the Company or of a guarantor in this Indenture, the Notes, or in
any supplemental indenture, or because of the creation of any Indebtedness
represented thereby, shall be had against any stockholder, employee, officer or
director of the Company or of any successor corporation or entity, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being understood that, to the extent
permitted by law, all such liability is hereby waived and released as a
condition to, and as a consideration for, the execution and delivery of this
Indenture and the issue of the Notes.

      


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

      


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

      


      SECTION
11.12. Not Responsible
for Recitals or Issuance of Notes. The recitals contained herein and in
the Notes, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Notes or the proceeds thereof.

      



      
        
           


        

        
          67

          
            

          

        

        
           


        

      

      


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

      


      SECTION
11.14. USA Patriot
Act. The parties hereto acknowledge that, in accordance with Section 326
of the USA Patriot Act, the Trustee and the Paying Agent, like all financial
institutions, are required to obtain, verify and record information that
identifies each person or legal entity that opens an account, or otherwise
establishes a relationship, with Law Debenture Trust Company of New York or
Deutsche Bank Trust Company Americas, respectively. The Company agrees that they
will provide to the Trustee and the Paying with such information as either may
request in order for the Trustee and the Paying Agent to satisfy the
requirements of the USA Patriot Act.

      


      [Remainder of Page Intentionally Left
Blank]


      
        
           


        

        
          68

          
            

          

        

        
           


        

      

      


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

      


      
        	 
      	
                STILLWATER
      MINING COMPANY

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/
      John R Stark

              
	 
      	
                Name:

              	
                John
      R Stark

              
	 
      	
                Tile:

              	
                Vice
      President

              


      

      


      


      Indenture
Signature Page


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

      


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

      


      
        	 
      	
                LAW
      DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/
      James D. Heaney

              
	 
      	
                Name
      :

              	
                James
      D. Heaney

              
	 
      	
                Title:

              	
                Vice
      President

              


      

      


      Indenture
Signature Page


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


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

      


      
        	 
      	
                DEUTSCHE
      BANK TRUST COMPANY AMERICAS, as Registrar, Conversion Agent and Paying
      Agent

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/
      Wanda Camacho

              
	 
      	
                Name:

              	
                Wanda
      Camacho

              
	 
      	
                Title:

              	
                Vice
      President

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/
      Annie Jaghatspanyan

              
	 
      	
                Name:

              	
                Annie
      Jaghatspanyan

              
	 
      	
                Title:

              	
                Vice
      President

              


      

      


      Indenture
Signature Page


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

      


      Exhibit
A

      


      FORM
OF THE NOTE

      


      [Face of
the Note]

      


      UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
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 TO
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.

      


      THIS
SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

      


      1.  REPRESENTS
THAT IT AND 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
FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT:

       

      (A)  TO
US OR ANY OF OUR SUBSIDIARIES, 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 (2)(D) ABOVE, THE COMPANY,
THE TRUSTEE AND THE REGISTRAR 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.


      
        
           


        

        
          A-2

          
            

          

        

        
           


        

      

      


      CUSIP:
86074Q AD4

      ISIN:
US86074QAD43

      


      1.875%
Convertible Senior Notes due 2017

      


      
        	
                No.

              	
                $

              


      

      


      Stillwater
Mining Company 

       

      promises
to pay to

      


      or
registered assigns,

      


      the
principal sum of

      


      Dollars
on March 15, 2028.

      


      Interest
Payment Dates: March 15 and September 15

      


      Record
Dates: March 1 and September 1

      


      Dated:
___, 2008

      


      
        	 
      	
                Stillwater
      Mining Company

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      


      

      This is
one of the Notes referred to in the within-mentioned Indenture:

      


      Law
Debenture Trust Company of New York, as Trustee

      


      
        	
                By:

              	 
      	 
      
	 
      	
                Authorized
      Signatory

              	 
      


      


      
        
           


        

        
          A-3

          
            

          

        

        
           


        

      

      


      [Back of
Note]

      1.875%
Convertible Senior Notes due 2028

      


      Capitalized
terms used herein have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.

      


      (1)  Interest. Stillwater Mining
Company, a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 1.875% per annum from March 12,
2008 until Maturity. The Company will pay interest, if any, semi-annually in
arrears on March 15 and September 15 of each year (subject to limited exceptions
if the Note is converted or purchased prior to such date), or if any such day is
not a Business Day, on the immediately following Business Day (each, an “Interest Payment Date”).
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from March 12, 2008; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a Record Date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided,
further, that the first Interest Payment Date shall be September 15,
2008. The Company will pay interest on overdue principal from time to time on
demand at the rate then in effect to the extent lawful; it will pay interest on
overdue installments of interest, if any (without regard to any applicable grace
periods), from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.

      


      (2)  Method of payment. The Company
will pay interest on the Notes, if any, to the Persons who are registered
Holders of Notes at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date (each a “Regular Record Date”), even if
such Notes are canceled after such record date and on or before such Interest
Payment Date. The Notes will be payable as to principal, if any, and interest at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of and interest, if any, on, all Global Notes and all other Notes with
an aggregate principal amount in excess of $2 million for which the Holders have
provided wire transfer instructions at least 10 Business Days prior to the
Interest Payment Date to the Company or the Paying Agent. Such payment will be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.

      


      (3)  Trustee, Paying Agent, Registrar and
Conversion Agent. Initially, Law Debenture Trustee Company of New York
will act as Trustee under the Indenture and Deutsche Bank Trust Company Americas
will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice to any Holder.
The Company or any of its Subsidiaries may act in any such
capacity.

      


      (4)  Indenture. The Company issued
the Notes under the Indenture dated as of March 12, 2008 (the “Indenture”) between the
Company, the Trustee and Deutsche Bank Trust Company Americas. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA upon qualification of the Indenture under the TIA. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are senior, unsecured
obligations of the Company.


      
        
           


        

        
          A-4

          
            

          

        

        
           


        

      

      


      (5)  Denominations, transfer,
exchange. The Notes are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for conversion or repurchase, except for the unconverted or
unrepurchased portion of any Note being converted or repurchased in part. Also,
the Company need not exchange or register the transfer of any Notes during the
period between a Regular Record Date and the corresponding Interest Payment
Date.

      


      (6)  Persons deemed owners. The
registered Holder of a Note may be treated as its owner for all
purposes.

      


      (7)  Amendment, supplement and
waiver. The Indenture contains provisions permitting the Company and the
Trustee in certain circumstances, without the consent of the Holders of the
Notes, and in other circumstances, with the consent of the Holders of not less
than a majority in aggregate principal amount of the Notes at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures modifying the terms of the Indenture and the Notes as described
therein. It is also provided in the Indenture that, subject to certain
exceptions, the holders of a majority in aggregate principal amount of the Notes
at the time outstanding may on behalf of the holders of all of the Notes waive
any past Default or Event of Default under the Indenture and its
consequences.

      


      (8)  Events of default. In case an
Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal and interest (including Liquidated Damages and
Additional Interest, if any) on all Notes may be declared, by either the Trustee
or Noteholders of not less than 25% in aggregate principal amount of Notes then
outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions set
forth in the Indenture.

      


      (9)  Trustee dealings with Company.
The Trustee, 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 the
Trustee.

      


      (10)  No recourse against others. A
director, officer, employee, incorporator or stockholder of the Company, as
such, will not have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason of
such obligations or their creation. Each Holder, by accepting a Note, waives and
releases all such liability to the extent permitted by law. The waiver and
release are part of the consideration for the issuance of the
Notes.


      
        
           


        

        
          A-5

          
            

          

        

        
           


        

      

      


      (11)  Open market purchases. The
Company may, to the extent permitted by applicable law, at any time, and from
time to time, purchase Notes at any price in the open market or
otherwise.

      


      (12)  Authentication. This Note will
not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.

      


      (13)  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 entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

      


      (14)  CUSIP numbers. Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and
the Trustee may use CUSIP numbers in notices of repurchase or conversion as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
repurchase or conversion, and reliance may be placed only on the other
identification numbers placed thereon.

      


      (15)  Governing law. THE INTERNAL
LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE
AND THIS NOTE.


      
        
           


        

        
          A-6

          
            

          

        

        
           


        

      

      


      ASSIGNMENT
FORM

      


      To assign
this Note, fill in the form below:

      


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

              	 
      	 
      
	 
      	 
      	
                (Insert
      assignee’s legal name)

              


      

      


      
        	 
      
	
                (Insert
      assignee’s Soc. Sec. or tax I.D. No.)

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

              


      

      


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

      


      
        	
                Date:

              	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                Your
      Signature:

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

              
	 
      	 
      	 
      	 
      	 
      	 
      
	
                Signature
      Guarantee*:

              	 
      	 
      	 
      	 
      


      

      


      
        	
                *

              	
                Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
      acceptable to the Trustee).

              


      


      
        
           


        

        
          A-7

          
            

          

        

        
           


        

      

      


      SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

      


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

      


      
        	
                Date
      of Exchange

              	 
      	
                Amount
      of decrease in Principal Amount of this Global Note

              	 
      	
                Amount
      of increase in Principal Amount of this Global Note

              	 
      	
                Principal
      Amount of this Global Note following such decrease (or
      increase)

              	 	
                Signature
      of authorized officer of Trustee or
Custodian

              


      

      


       

      
 


      
        
           


        

        
          A-8

          
            

          

        

        
           


        

      

      


      Exhibit
B

      


      FORM
OF CONVERSION NOTICE

      


      Stillwater
Mining Company

      1321
Discovery Drive

      Billings,
MT 59102

      Attn:
John R. Stark

      


      Re:
1.875% Convertible Senior Notes due 2028


      —
CONVERSION NOTICE (CUSIP 86074Q AD4)

      


      Reference
is hereby made to the Indenture, dated as of March 12, 2008 (the “Indenture”), between
Stillwater Mining Company, as issuer (the “Company”), Law Debenture Trust
Company of New York, as trustee (the “Trustee”), and Deutsche Bank
Trust Company Americas, as registrar (the “Registrar”), conversion agent
(the “Conversion Agent”)
and paying agent (the “Paying
Agent”). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.

      


      _____________ (the
“Owner”) owns and
proposes to convert the Note[s] or interest in such Note[s] specified herein, in
the principal amount of $ in such Note[s]
or interests (the “Conversion”) pursuant to
Article VI of the Indenture. In connection with the Conversion, the Owner hereby
certifies that, as Owner of this Note, he/she hereby irrevocably exercises the
option to convert this Note, or such portion of this Note in the principal
amount designated above into the number of shares of Common Stock of the Company
equal to the aggregate principal amount of Notes to be converted divided by the
Applicable Conversion Price. The Owner directs that such shares, together with a
check in payment for any fractional share and any Notes representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Notes are to be registered in the name of a Person
other than the undersigned, (a) the undersigned will pay all transfer taxes
payable with respect thereto and (b) signature(s) must be guaranteed by an
Eligible Guarantor Institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934. Any amount required to be paid by the undersigned on account of interest
accompanies this Note.

      


      
        	
                Dated:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Signature(s)

              	 
      


      

      


      
        	
                If
      shares of Common Stock or Notes are to be registered in the name of a
      Person other than the Holder, please print such Person’s name and
      address:

              	 
      
	 
      	 
      
	 
      	 
      
	
                (Name)

              	 
      
	 
      	 
      
	
                (Address)

              	 
      
	 
      	 
      
	
                Social
      Security or other Identification

              	 
      
	 
      	 
      
	
                Number,
      if any.

              	 
      
	 
      	 
      
	
                [Signature
      Guaranteed]

              	 
      


      

      


      
        
           


        

        
          B-1

          
            

          

        

        
           


        

      

      


      If only a
portion of a Definitive Note is to be converted, please indicate:

      


      1.  Principal
amount to be converted: $

      


      2.  Principal
amount and denomination of Notes representing unconverted principal amount to be
issued:

      


      
        	
                Amount:
      $

              	 
      	 
      	
                Denominations:
      $

              	 
      


      

      


      ($1,000
or any integral multiple of $1,000 in excess thereof, provided that the
unconverted portion of such principal amount is $1,000 or any integral multiple
of $1,000 in excess thereof.)


      
        
           


        

        
          B-2

          
            

          

        

        
           


        

      

      


      Exhibit
C

      


      PURCHASE
NOTICE

      


       

      
        	
                TO:

              	
                STILLWATER
      MINING COMPANY and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion
      Agent

              


      

      


      


      The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from Stillwater Mining Company (the “Company”) regarding the right
of Holders to elect to require the Company to purchase the Notes and requests
and instructs the Company to repay the entire principal amount of this Note, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture at the price of 100%
of such entire principal amount or portion thereof, together with accrued and
unpaid interest, if any, (including Liquidated Damages and Additional Interest,
if any) to, but excluding, the Purchase Date to the registered Holder hereof.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture. The Notes shall be purchased by the Company as
of the Purchase Date pursuant to the terms and conditions specified in the
Indenture.

      


      
        	
                Dated:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Signature(s)

              	 
      


      

      


      


      NOTICE:
The above signatures of the Holder(s) hereof must correspond with the name as
written upon the face of the Notes in every particular without alteration or
enlargement or any change whatever.

      


      Notes
Certificate Number (if applicable):_______

      


      Principal
amount to be purchased

      (if less
than all, must be $1,000 or whole multiples thereof):_______

      


      Social
Security or Other Taxpayer Identification Number:_______

       

      
        
           


        

        
          C-1

          
            

          

        

        
           


        

      


      Exhibit
D

      


      FUNDAMENTAL
CHANGE PURCHASE NOTICE

      


       

      
        	
                TO:

              	
                STILLWATER
      MINING COMPANY and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion
      Agent

              


      

      


      


      The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from Stillwater Mining Company (the “Company”) regarding the right
of Holders to elect to require the Company to purchase the Notes and requests
and instructs the Company to repay the entire principal amount of this Note, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture at the price of 100%
of such entire principal amount or portion thereof, together with accrued and
unpaid interest, if any, (including Liquidated Damages and Additional Interest,
if any) to, but excluding, the Fundamental Change Purchase Date to the
registered Holder hereof. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture. The Notes shall be
purchased by the Company as of the Fundamental Change Purchase Date pursuant to
the terms and conditions specified in the Indenture.

      


      
        	
                Dated:

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
                Signature(s)

              	 
      


      

      


      NOTICE:
The above signatures of the Holder(s) hereof must correspond with the name as
written upon the face of the Notes in every particular without alteration or
enlargement or any change whatever.

      


      Notes
Certificate Number (if applicable):_______

      


      Principal
amount to be purchased

      (if less
than all, must be $1,000 or whole multiples thereof):_______

      


      Social
Security or Other Taxpayer Identification Number:_______


      
        
           


        

        
          D-1

          
            

          

        

        
           


        

      


      Exhibit
E

      


      FORM
OF CERTIFICATE OF EXCHANGE

      


      Stillwater
Mining Company

      1321
Discovery Drive

      Billings,
MT 59102

      Attn:
John R. Stark

      


      Law
Debenture Trust Company of New York

      400
Madison Avenue, 4th
Floor

      New York,
NY 10017

      Attn:
Vice President

      


      
        Re:
1.875% Convertible Senior Notes due 2028 — Certificate of Exchange (CUSIP 86074Q
AD4)

      

      
      

       

      Reference
is hereby made to the Indenture, dated as of March 12, 2008 (the “Indenture”), among Stillwater
Mining Company., a Delaware corporation (the “Company”), Law Debenture Trust
Company of New York, as trustee (the “Trustee”) and Deutsche Bank
Trust Company Americas as Registrar, Conversion Agent and Paying Agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.

      


                                                  (the
“Owner”) owns and
proposes to exchange the Note[s] or interest in such Note[s] specified herein,
in the principal amount at maturity of$   in such
Note[s] or interests (the “Exchange”). In connection
with the Exchange, the Owner hereby certifies that in connection with the
Exchange of the Owner’s beneficial interest in a Global Note for a Definitive
Note with an equal principal amount at maturity, the Owner hereby certifies that
the Definitive Note is being acquired for the Owner’s own account without
transfer. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Definitive Note issued will continue to be subject
to the restrictions on transfer enumerated in the Legend printed on the
Definitive Note and in the Indenture and the Securities Act.

      


      [signature
page follows]


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      


      This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.

      


      
        	 
      	 
      	 
      	
                Dated:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                [Insert
      Name of Transferor]

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      	 
      	 
      
	 
      	 
      	
                Name:

              	 
      	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      	 
      


      

       

    

     

    3