Exhibit
4.1


 


Execution Version


 




 





GRIFFON
CORPORATION


 


4.00%
CONVERTIBLE SUBORDINATED NOTES DUE 2017


 






 


INDENTURE


 


DATED
AS OF DECEMBER 21, 2009


 






 


AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC


 


AS
TRUSTEE


 








 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
  Section 1.02

  	
  Other Definitions

  	
  8

  
	
  Section 1.03

  	
  Incorporation by Reference of Trust Indenture Act

  	
  9

  
	
  Section 1.04

  	
  Rules of Construction

  	
  10

  
	
  Section 1.05

  	
  Acts of Holders

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE NOTES

  	
  11

  
	
   

  	
   

  
	
  Section 2.01

  	
  Form and Dating

  	
  11

  
	
  Section 2.02

  	
  Execution and Authentication

  	
  12

  
	
  Section 2.03

  	
  Registrar, Paying Agent and Conversion Agent

  	
  13

  
	
  Section 2.04

  	
  Paying Agent to Hold Money and Notes in Trust

  	
  14

  
	
  Section 2.05

  	
  Holder Lists

  	
  14

  
	
  Section 2.06

  	
  Transfer and Exchange

  	
  14

  
	
  Section 2.07

  	
  Replacement Notes

  	
  17

  
	
  Section 2.08

  	
  Outstanding Notes

  	
  18

  
	
  Section 2.09

  	
  Temporary Notes

  	
  19

  
	
  Section 2.10

  	
  Cancellation

  	
  19

  
	
  Section 2.11

  	
  Persons Deemed Owners

  	
  19

  
	
  Section 2.12

  	
  Transfer of Notes

  	
  19

  
	
  Section 2.13

  	
  CUSIP and ISIN Numbers

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3
  REDEMPTION AND REPURCHASES

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  No Company Right to Redeem

  	
  24

  
	
  Section 3.02

  	
  Repurchase of Notes at Option of the Holder Upon a
  Fundamental Change

  	
  24

  
	
  Section 3.03

  	
  Fundamental Change Notice

  	
  24

  
	
  Section 3.04

  	
  Fundamental Change Repurchase Notice

  	
  26

  
	
  Section 3.05

  	
  Effect of Fundamental Change Repurchase Notice

  	
  26

  
	
  Section 3.06

  	
  Deposit of Fundamental Change Repurchase Price

  	
  27

  
	
  Section 3.07

  	
  Notes Repurchased in Part

  	
  27

  
	
  Section 3.08

  	
  Covenant to Comply with Notes Laws Upon Repurchase of Notes

  	
  27

  
	
  Section 3.09

  	
  Repayment to the Company

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 COVENANTS

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of Notes

  	
  28

  
	
  Section 4.02

  	
  SEC and Other Reports

  	
  28

  
	
  Section 4.03

  	
  Compliance Certificate

  	
  30

  
	
  Section 4.04

  	
  Further Instruments and Acts

  	
  30

  



 


i

















 


	
  Section 4.05

  	
  Maintenance of Office or Agency

  	
  30

  
	
  Section 4.06

  	
  Delivery of Certain Information

  	
  30

  
	
  Section 4.07

  	
  Par Value Limitation

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 SUCCESSOR CORPORATION

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  When Company May Merge or Transfer Assets

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 DEFAULTS AND REMEDIES

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of Default

  	
  32

  
	
  Section 6.02

  	
  Acceleration

  	
  34

  
	
  Section 6.03

  	
  Other Remedies

  	
  35

  
	
  Section 6.04

  	
  Waiver of Past Defaults

  	
  35

  
	
  Section 6.05

  	
  Control by Majority

  	
  35

  
	
  Section 6.06

  	
  Limitation on Suits

  	
  35

  
	
  Section 6.07

  	
  Rights of Holders to Receive Payment

  	
  36

  
	
  Section 6.08

  	
  Collection Suit by Trustee

  	
  36

  
	
  Section 6.09

  	
  Trustee May File Proofs of Claim

  	
  36

  
	
  Section 6.10

  	
  Priorities

  	
  36

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
  37

  
	
  Section 6.12

  	
  Waiver of Stay, Extension or Usury Laws

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 TRUSTEE

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties of Trustee

  	
  37

  
	
  Section 7.02

  	
  Rights of Trustee

  	
  38

  
	
  Section 7.03

  	
  Individual Rights of Trustee

  	
  39

  
	
  Section 7.04

  	
  Trustee’s Disclaimer

  	
  40

  
	
  Section 7.05

  	
  Notice of Defaults

  	
  40

  
	
  Section 7.06

  	
  Reports by Trustee to Holders

  	
  40

  
	
  Section 7.07

  	
  Compensation and Indemnity

  	
  40

  
	
  Section 7.08

  	
  Replacement of Trustee

  	
  41

  
	
  Section 7.09

  	
  Successor Trustee by Merger

  	
  42

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
  42

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against Company

  	
  42

  
	
  Section 7.12

  	
  Trustee’s Application for Instructions from the Company

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 DISCHARGE OF INDENTURE

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Discharge of Liability on Notes

  	
  43

  
	
  Section 8.02

  	
  Repayment to the Company

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 AMENDMENTS

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Without Consent of Holders

  	
  43

  
	
  Section 9.02

  	
  With Consent of Holders

  	
  44

  
	
  Section 9.03

  	
  Compliance with Trust Indenture Act

  	
  45

  
	
  Section 9.04

  	
  Revocation and Effect of Consents, Waivers and Actions

  	
  45

  



 


ii

















 


	
  Section 9.05

  	
  Notation on or Exchange of Notes

  	
  45

  
	
  Section 9.06

  	
  Trustee to Sign Supplemental Indentures

  	
  46

  
	
  Section 9.07

  	
  Effect of Supplemental Indentures

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 CONVERSIONS

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Conversion Privilege and Consideration

  	
  46

  
	
  Section 10.02

  	
  Conversion Procedure

  	
  48

  
	
  Section 10.03

  	
  Settlement Upon Conversion

  	
  49

  
	
  Section 10.04

  	
  Company to Provide Stock

  	
  52

  
	
  Section 10.05

  	
  Adjustments to the Conversion Rate

  	
  53

  
	
  Section 10.06

  	
  Effect of Reclassification, Consolidation, Merger or Sale

  	
  62

  
	
  Section 10.07

  	
  Adjustment to Conversion Rate Upon Certain Transactions

  	
  65

  
	
  Section 10.08

  	
  Miscellaneous

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 PAYMENT OF INTEREST

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Payment of Interest

  	
  67

  
	
  Section 11.02

  	
  Defaulted Interest

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 SUBORDINATION

  	
  68

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Agreement to Subordinate

  	
  68

  
	
  Section 12.02

  	
  Liquidation; Dissolution; Bankruptcy

  	
  68

  
	
  Section 12.03

  	
  Default on Designated Senior Debt

  	
  69

  
	
  Section 12.04

  	
  When Distributions Must be Paid Over

  	
  70

  
	
  Section 12.05

  	
  Acceleration of the Securities

  	
  70

  
	
  Section 12.06

  	
  No Stacking

  	
  70

  
	
  Section 12.07

  	
  Certain Definitions

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 MISCELLANEOUS

  	
  71

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Trust Indenture Act Controls

  	
  71

  
	
  Section 13.02

  	
  Notices

  	
  71

  
	
  Section 13.03

  	
  Communication by Holders with Other Holders

  	
  72

  
	
  Section 13.04

  	
  Certificate and Opinion as to Conditions Precedent

  	
  72

  
	
  Section 13.05

  	
  Statements Required in Certificate or Opinion

  	
  72

  
	
  Section 13.06

  	
  Separability Clause

  	
  73

  
	
  Section 13.07

  	
  Rules by Trustee

  	
  73

  
	
  Section 13.08

  	
  Governing Law

  	
  73

  
	
  Section 13.09

  	
  No Recourse Against Others

  	
  73

  
	
  Section 13.10

  	
  Calculations

  	
  73

  
	
  Section 13.11

  	
  Successors

  	
  73

  
	
  Section 13.12

  	
  Multiple Originals

  	
  73

  
	
  Section 13.13

  	
  Table of Contents; Headings

  	
  73

  
	
  Section 13.14

  	
  Force Majeure

  	
  74

  
	
  Section 13.15

  	
  Submission
  to Jurisdiction

  	
  74

  



 


iii

















 


	
  Form of Note

  	
  A-1

  
	
  Form of Transfer Certificate

  	
  B-1

  
	
  Restricted Stock Legend

  	
  C-1

  



 


iv

















 


INDENTURE dated as of December 21, 2009 between
GRIFFON CORPORATION, a Delaware corporation (“Company”),
and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as trustee (“Trustee”).


 


Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Company’s
4.00% Convertible Subordinated Notes due 2017:


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01           Definitions.


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person.  For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.


 


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


 


“Bankruptcy Law”
means Title 11, United States Code, or any similar federal, state or non-U.S.
law for the relief of debtors.


 


“Bid Solicitation Agent”
means the Company or such other Person as may be appointed, from time to time,
by the Company to solicit market bid quotations for the Notes in accordance
with Section 10.01(a).


 


“Board of Directors”
means the board of directors of the Company.


 


“Board Resolution”
means a copy of one or more resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business Day”
means any weekday that is not a day on which banking institutions in the City
of New York are authorized or obligated to close.


 


“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 corporation.


 
















 


“Certificated Notes”
means Notes that are in registered definitive form.


 


“Close of Business”
means 5:00 p.m., New York City time.


 


“Common Stock”
means the shares of the common stock of the Company, par value $0.25 per share,
existing on the date of this Indenture or any other shares of Capital Stock of
the Company into which such shares of common stock shall be reclassified or
changed.


 


“Company” means
the party named as such in this Indenture until a successor replaces it
pursuant to the applicable provisions hereof and, thereafter, means the
successor.


 


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


 


“Conversion Rate”
means the rate set forth as such in Paragraph 6 of the form of Note attached
hereto as Exhibit A, subject to adjustment as set forth herein.


 


“Corporate Trust Office”
means the corporate trust office of the Trustee at which at any time the trust
created by this Indenture shall be administered, which office at the date
hereof is located at 59 Maiden Lane, New York, New York 10038, Attention:  Corporate Trust Department, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the corporate trust office of any successor Trustee at which
such trust shall be administered (or such other address as a successor Trustee
may designate from time to time by notice to the Holders and the Company).


 


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


 


“Daily Cash Amount” means, for any
Trading Day during an Observation Period, 2.5% of the Cash Amount.


 


“Daily Conversion Value”  means, for any Trading Day during an Observation Period,
2.5% of the product of (i) the Conversion Rate in effect on such Trading
Day and (ii) the Daily VWAP for such Trading Day.


 


“Daily VWAP”
means, for any Trading Day during any Observation Period, the volume-weighted
average price per share of the Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “GFF.N <equity> AQR” (or any successor
thereto) in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on such Trading Day
(or if such volume-weighted average price is not available, the market value of
one share of the Common Stock on such Trading Day, determined using a
volume-weighted average method, by a nationally recognized independent
investment banking firm retained for this purpose by the Company). The Daily
VWAP will be determined without regard to after hours trading or any other
trading outside of the regular trading session trading hours.  On and after the occurrence of a Merger
Event, the Daily VWAP for a Unit of Reference Property means, for any Trading
Day during any Observation Period, the fair market value of a Unit of Reference
Property as determined, using a volume-weighted average method, if possible, by
the Board of Directors in a commercially reasonable manner.


 


2

















 


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


 


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


 


“Ex-Dividend Date”
means, with respect to any issuance, dividend or distribution, the first date
on which the shares of Common Stock trade on the applicable exchange or in the
applicable market, in the regular way, without the right to receive the
issuance, dividend or distribution in question.


 


“Free Trade Date”
means the date that is one year after the last date of original issuance of the
Notes (including the last date of original issuance of additional Notes
pursuant to the exercise of the initial purchasers’ overallotment option).


 


“Freely Tradable”  means,
with respect to the Notes and the shares of Common Stock issuable upon
conversion of the Notes, that such Notes or such shares of Common Stock, as
applicable, (i) are eligible to be sold by a Person who has not been an
Affiliate of the Company during the preceding three months without any volume
or manner of sale restrictions under the Securities Act, (ii) do not bear
a restricted security legend and (iii) with respect to Global Notes only,
are identified by an unrestricted CUSIP number in the facilities of the
applicable depositary.


 


“Fundamental Change”
means an event that shall be deemed to have occurred at such time after the
Notes are originally issued that any of the following events occurs:


 


(1)           any person,
including any syndicate or group deemed to be a “person” under Section 13(d)(3) of
the Exchange Act, acquires beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series of
transactions, of shares of the Company’s Capital Stock entitling such person to
exercise 50% or more of the total voting power of all shares of the Company’s
Capital Stock entitled to vote generally in elections of directors, other than
an acquisition by the Company or any of its subsidiaries;


 


(2)           the Company
merges or consolidates with or into any other person (other than a subsidiary),
any merger of another person into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of its assets to another person,
other than in any transaction:


 


(a)           involving a
merger or consolidation that does not result in a reclassification, conversion,
exchange or cancellation of outstanding Common Stock (other than a conveyance,
sale, transfer or lease of all or substantially all of the Company’s assets); or


 


(b)           pursuant to
which the holders of Common Stock immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the total
voting power of all shares of Capital Stock entitled to vote generally in the
election of directors of the continuing or surviving corporation immediately
after the transaction, with such holders’ proportional voting power immediately
after the transaction vis-à-vis each other with respect to the securities


 


3

















 


they receive in such transaction being in substantially the same
proportions as their respective voting power vis-à-vis each other with respect
to the shares of Common Stock that they held immediately before such
transaction; or


 


(c)           which is
effected solely to change the Company’s jurisdiction of incorporation and
results in a reclassification, conversion or exchange of outstanding shares of
the Common Stock solely into shares of common stock of the surviving entity;


 


(3)           the Company’s
stockholders approve any plan or proposal for the Company’s liquidation or
dissolution; or


 


(4)           a Termination
of Trading.


 


However, a Fundamental Change will not be deemed to
have occurred if at least 90% of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters’ appraisal
rights) in a merger or consolidation otherwise constituting a Fundamental
Change under clause (1) and/or clause (2) above consists of shares of
common stock traded on the NYSE, the NASDAQ Global Select Market or the NASDAQ
Global Market (or any of their respective successors), 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 consideration.


 


For purposes of this definition:


 


(i)         whether a
person is a “beneficial owner” will be
determined in accordance with Rule 13d-3 under the Exchange Act;


 


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


 


(iii)       a “Termination of Trading” will be deemed to have occurred if
the Common Stock (or other common stock into which the Notes are then
convertible) is neither listed nor approved for trading on the NYSE, the NASDAQ
Global Select Market or the NASDAQ Global Market (or any of their respective
successors).


 


“GAAP” means
generally accepted accounting principles in the United States of America as in
effect and, to the extent optional, adopted by the Company, on the date of this
Indenture, consistently applied.


 


“Global Note”
means a permanent Global Note that is in the form of the Note attached hereto
as Exhibit A, and that is deposited with and registered in the name of the
Depositary.


 


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


 


4

















 


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


 


“Issue Date”
means December 21, 2009.


 


“Last Reported Sale Price”
of the Common Stock means, for any day, the closing sale price per share (or if
no closing sale price per share is reported, the average of the last bid price
and the last ask price or, if more than one in either case, the average of the
average last bid prices and the average last ask prices) on such day as
reported on the NYSE or, if, on such day, the Common Stock is not listed on the
NYSE, then as reported by the NASDAQ Stock Market or the principal other
national or regional securities exchange on which the shares of the Common
Stock are then traded or, if, on such day, the Common Stock is not listed or
approved for trading on the NASDAQ Stock Market or another national or regional
securities exchange, on the principal market on which shares of the Common
Stock are then traded. If the Common Stock is not so traded, the “Last Reported
Sale Price” of the Common Stock on such day shall be the average of the
midpoint of the last bid price and the last ask price per share of the Common
Stock on such day, as such midpoints are determined by each of at least three
nationally recognized independent investment banking firms selected by the Company
for this purpose, which may include one or more of the initial purchasers.  On and after the occurrence of a Merger
Event, the Last Reported Sale Price for a Unit of Reference Property means, for
any day, the value of a Unit of Reference Property on such day as determined by
by the Board of Directors in a commercially reasonable manner.


 


“Market Disruption Event”
means, for any Scheduled Trading Day, the occurrence or existence on such
Scheduled Trading Day of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange
or 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 within the 30 minutes prior to the closing time of
the relevant exchange on such Scheduled Trading Day.


 


“Maturity Date,”
means January 15, 2017.


 


“Notes” means
any of the Company’s 4.00% Convertible Subordinated Notes due 2017, as amended
or supplemented from time to time, issued under this Indenture.


 


“NYSE” means the
New York Stock Exchange.


 


“Observation Period”
means, for any Note to which a Cash Settlement or a Combination Settlement
applies, (i) if the Conversion Date for such Note occurs on or after the
Close of Business on the 45th Scheduled Trading Day immediately preceding the
Maturity Date, the 40 consecutive Trading Day period beginning on, and
including, the 42nd Scheduled Trading Day immediately preceding the Maturity
Date; and (ii) in all other cases, the 40 consecutive Trading Day period
beginning on, and including, the third Trading Day immediately following the
Conversion Date for such Note.


 


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


 


5

















 


Vice President, any Vice
President, the Treasurer or the Secretary or any Assistant Treasurer or
Assistant Secretary of the Company.


 


“Officers’ Certificate”
means a written certificate (i) containing the information specified in
Sections 13.04 and 13.05, signed in the name of the Company by any two
Officers, and delivered to the Trustee; and (ii) given pursuant to Section 4.03,
signed by the principal financial or accounting Officer of the Company, which
certificate need not contain the information specified in Sections 13.04 and
13.05.


 


“Open of Business”
means 9:00 a.m., New York City time.


 


“Opinion of Counsel”
means a written opinion containing the information specified in Sections 13.04
and 13.05, from legal counsel.  The
counsel may be an employee of, or counsel to, the Company who is reasonably
satisfactory to the Trustee.


 


“Offering Circular”
means the final offering circular for the offering and sale of the Notes dated December 16,
2009.


 


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


 


“Restricted Securities
Legend” means a legend in the form set forth in Exhibit A.


 


“Restricted Stock Legend”
means a legend in the form set forth in Exhibit C.


 


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


 


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


 


“Scheduled Trading Day”
means any day that is scheduled to be a Trading Day on the primary United
States national securities exchange or market on which the Common Stock is
listed or admitted for trading.  If the
Common Stock is not so listed or admitted for trading, “Scheduled Trading Day”
means any Business Day.


 


“SEC” means the
Securities and Exchange Commission.


 


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


 


“Settlement Method”
means any of a Cash Settlement, a Physical Settlement or a Combination
Settlement.


 


“Share Price”
means, with respect to the Common Stock, in connection with a Fundamental
Change, (i) in the case of a Fundamental Change described in clause (2) of
the definition of Fundamental Change in which the holders of the Common Stock
receive only cash, the amount of cash paid per share of the Common Stock in
such Fundamental Change, and (ii)


 


6

















 


otherwise, the average of the Last Reported
Sales Price of the Common Stock over the ten consecutive Trading Day period
ending on the Trading Day immediately preceding the Fundamental Change
Effective Date for such Fundamental Change.


 


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


 


“Stated Maturity”
means, with respect to any installment of interest or principal on any series
of indebtedness of the Company or its Subsidiaries, the date on which the
payment of interest or principal was required to be made under the
documentation governing such or any earlier date on which any holder of such
indebtedness shall have the right, pursuant to the terms of the documentation
governing such indebtedness and irrespective of whether or not any default
shall have occurred thereunder, to require the repayment, redemption or
repurchase of any such interest or principal prior to the date thereunder on
which the payment thereof otherwise shall have been required to be made.


 


“Subsidiary”
means a Person more than 50% of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries of
the Company, or by the Company and one or more other Subsidiaries of the
Company.


 


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


 


“Trading Day”
means a Scheduled Trading Day on which (i) there is no Market Disruption
Event and (ii) trading in the Common Stock generally occurs on the NYSE,
or if the Common Stock is not listed on the NYSE, then as reported by the
NASDAQ Stock Market or the principal other national or regional securities exchange on which the
Common Stock is then traded or, if the Common Stock is not listed or approved
for trading on the NASDAQ Stock Market or another national or regional
securities exchange, on the principal market on which the Common Stock is then
traded. If the Common Stock is not so listed or traded, “Trading Day” shall
have the same meaning as Business Day.


 


“Trading Price”
of the Notes, for any date of determination, means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for $5,000,000
principal amount of the Notes at approximately 3:30 p.m., New York City
time, on such date of determination, from three independent nationally
recognized securities dealers selected by the Company; provided,
however, that, if three bids cannot reasonably
be obtained by the Bid Solicitation Agent, but the Bid Solicitation Agent
obtains two bids, then the average of the two bids shall be used, and if the
Bid Solicitation Agent can reasonably obtain only one bid, then that one bid
shall be used.  If the Bid Solicitation
Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount
of the Notes from a nationally recognized securities dealer on a date of
determination, then the Trading Price per $1,000 principal amount of Notes will
be deemed to be less than 98% of the Trading Price Product for such date of
determination.


 


7

















 


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


 


“Trust Officer”
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter hereunder, any other officer of the Trustee to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.


 


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


 


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


 


“Wholly Owned Subsidiary”
means, at any time, a Subsidiary all the Voting Stock of which (except
directors’ qualifying shares which shall be deemed to include investments by
foreign nationals mandated by applicable law) is at such time owned, directly
or indirectly, by the Company and its other Wholly Owned Subsidiaries.


 


Section 1.02           Other Definitions.


 


	
  Term Section:

  	
   

  	
  Defined in:

  
	
  “Act”
  

  	
   

  	
  1.05

  
	
  “Additional
  Interest”

  	
   

  	
  4.02(b)

  
	
  “Additional
  Shares”

  	
   

  	
  10.07(a)

  
	
  “Agent
  Members” 

  	
   

  	
  2.12(e)

  
	
  “Cash
  Amount”

  	
   

  	
  10.03(a)

  
	
  “Cash
  Settlement”

  	
   

  	
  10.03(a)

  
	
  “Combination
  Settlement”

  	
   

  	
  10.03(a)

  
	
  “Company’s
  Filing Obligations” 

  	
   

  	
  6.01(c)

  
	
  “Conversion
  Agent” 

  	
   

  	
  2.03

  
	
  “Conversion
  Date” 

  	
   

  	
  10.02(a)

  
	
  “Conversion
  Obligation”

  	
   

  	
  10.03(a)

  
	
  “Daily
  Settlement Amount”

  	
   

  	
  10.03(e)

  
	
  “Defaulted
  Interest” 

  	
   

  	
  11.02

  
	
  “Depositary”
  

  	
   

  	
  2.01(a)

  
	
  “Designated
  Senior Debt”

  	
   

  	
  12.07(a)

  
	
  “DTC”
  

  	
   

  	
  2.01(a)

  
	
  “Event
  of Default” 

  	
   

  	
  6.01(a)

  
	
  “Expiration
  Date”

  	
   

  	
  10.05(e)

  
	
  “Expiration
  Time” 

  	
   

  	
  10.05(e)

  



 


8

















 


	
  Term Section:

  	
   

  	
  Defined in:

  
	
  “Extension
  Fee” 

  	
   

  	
  6.01(c)

  
	
  “Fundamental
  Change Effective Date”

  	
   

  	
  10.07(a)

  
	
  “Fundamental
  Change Notice” 

  	
   

  	
  3.03(a)

  
	
  “Fundamental
  Change Notice Date” 

  	
   

  	
  3.03(a)

  
	
  “Fundamental
  Change Repurchase Date” 

  	
   

  	
  3.03(b)

  
	
  “Fundamental
  Change Repurchase Notice” 

  	
   

  	
  3.04(a)

  
	
  “Fundamental
  Change Repurchase Price” 

  	
   

  	
  3.02(a)

  
	
  “Global
  Securities Legend” 

  	
   

  	
  Exhibit A

  
	
  “Interest
  Payment Date” 

  	
   

  	
  11.01

  
	
  “Measurement
  Period”

  	
   

  	
  10.01(a)

  
	
  “Merger
  Event”

  	
   

  	
  10.06(a)

  
	
  “Paying
  Agent” 

  	
   

  	
  2.03

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  12.03(a)

  
	
  “Physical
  Settlement”

  	
   

  	
  10.03(a)

  
	
  “QIB”

  	
   

  	
  2.01(a)

  
	
  “Record
  Date” 

  	
   

  	
  11.01

  
	
  “Register”
  

  	
   

  	
  2.03

  
	
  “Registrar”
  

  	
   

  	
  2.03

  
	
  “Restricted
  Notes”

  	
   

  	
  2.06(f)

  
	
  “Reference
  Property”

  	
   

  	
  10.06(a)

  
	
  “Rule 144A
  Information”

  	
   

  	
  4.06

  
	
  “Special
  Record Date” 

  	
   

  	
  11.02(a)

  
	
  “Spin-off”
  

  	
   

  	
  10.05(c)

  
	
  “Start
  Date”

  	
   

  	
  4.02(b)

  
	
  “Surrendered
  Notes”

  	
   

  	
  Exhibit B

  
	
  “Temporary
  Notes”

  	
   

  	
  2.09

  
	
  “Trading
  Price Product”

  	
   

  	
  10.01(a)

  
	
  “Transfer”
  

  	
   

  	
  2.06(f)

  
	
  “Unit
  of Reference Property”

  	
   

  	
  10.06(a)

  
	
  “Valuation
  Period” 

  	
   

  	
  10.05(c)

  
	
  “Weighted
  Average Consideration” 

  	
   

  	
  10.06(a)

  



 


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


 


“indenture securities”
means the Notes.


 


“indenture to be qualified”
means this Indenture.


 


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


 


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


 


9

















 


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


 


Section 1.04           Rules of Construction.


 


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


 


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


 


(3)           “or” is not exclusive;


 


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


 


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


 


(6)           all references
to $, dollars, cash payments or money refer to United States currency; and


 


(7)           unless the
context requires otherwise, all references to payments of interest on the Notes
shall include Additional Interest, if any, payable in accordance with the terms
of Section 4.02 hereof.


 


Section 1.05           Acts of
Holders.  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 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.


 


(a)           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 that the Trustee
deems sufficient.


 


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


 


10
















 


(c)           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.


 


(d)           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 2

THE NOTES


 


Section 2.01           Form and Dating.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A, which is a
part of this Indenture.  The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage (provided that any such notation, legend
or endorsement required by usage is in a form acceptable to the Company).  The Company shall provide any such notations,
legends or endorsements to the Trustee in writing.  Each Note shall be dated the date of its
authentication.  Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects.  Notwithstanding any
differences among them, all Notes issued under this Indenture shall vote and
consent together on all matters as one class.


 


(a)           Initial Notes.  The Notes offered and sold to qualified
institutional buyers as defined in Rule 144A (“QIBs”)
in reliance on Rule 144A shall be issued initially in the form of up to
two Global Notes that shall be deposited with the Trustee at its Corporate
Trust Office, as custodian for the Depositary (as defined below) and registered
in the name of The Depository Trust Company (“DTC”)
or the nominee thereof (DTC, or any successor thereto, and any such nominee
being hereinafter referred to as the “Depositary”),
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


(b)           Global Notes in General.  Each Global Note shall represent the
outstanding Notes as shall be specified therein and each Global Note shall
provide that it shall represent the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be


 


11

















 


reduced or increased, as appropriate, to
reflect exchanges, redemptions, repurchases and conversions.


 


(c)           Any adjustment of the aggregate principal amount of a
Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section 2.12
hereof and shall be made on the records of the Trustee and the Depositary.  Payment of the principal, accrued and unpaid interest
(including any Additional Interest), if any, and any Extension Fee or payment
of the Fundamental Change Repurchase Price on the Global Note shall be made to
the Holder of such Note on the date of payment, unless a Record Date or other
means of determining Holders eligible to receive payment is provided for
herein.


 


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


 


The Company shall execute and the Trustee shall, in
accordance with Section 2.02, authenticate and deliver Global Notes that (a) shall
be registered in the name of the nominee of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s
instructions and (c) shall bear legends substantially similar to those
required by Section 2.01(e).


 


(e)           Legends.


 


(i)      Each Global
Note shall bear the Global Notes Legend set forth in Exhibit A.


 


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


 


(iii)    Every stock
certificate representing the shares of Common Stock issued in the circumstances
described in Section 2.06(g) hereof shall bear the Restricted Stock
Legend set forth in Exhibit C unless removed in accordance with the
provisions of Section 2.06(i).


 


Section 2.02           Execution and
Authentication  The Notes
shall be executed on behalf of the Company by any Officer.  The signature of the Officer on the Notes may
be manual or facsimile.


 


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.


 


At any time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a written order of the Company in the form of
an Officers’ Certificate for the authentication and delivery of such Notes, and
the Trustee, in accordance with such written order of the Company, shall
authenticate and deliver such Notes.


 


12

















 


A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Note.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.


 


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


 


The Trustee shall not authenticate more than
$115,000,000 aggregate principal amount of Notes.


 


The Trustee may appoint authenticating agents.  The Trustee may at any time after the
execution of this Indenture appoint an authenticating agent acceptable to the
Company to authenticate Notes.  An
authenticating agent may authenticate Notes whenever the Trustee may do so,
except any Notes issued pursuant to Section 2.07 hereof.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same
right to deal with the Company as the Trustee with respect to such matters for
which it has been appointed.


 


Section 2.03           Registrar, Paying Agent
and Conversion Agent.  The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”), an
office or agency in the Borough of Manhattan, City of New York, where Notes may
be presented for payment (“Paying Agent”),
an office or agency where Notes may be presented for conversion (“Conversion Agent”) and an office or agency where notices to
or upon the Company in respect of the Notes and this Indenture may be
served.  The Registrar shall keep a
register for the recordation of, and shall record, the names and addresses of
Holders of the Notes, the Notes held by each Holder and the transfer, exchange
and conversion of Notes (the “Register”).  The entries in the Register shall be
conclusive, and the parties may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Holder hereunder for all purposes of
this Indenture.  The Company may have one
or more co-registrars, one or more additional paying agents and one or more
additional conversion agents.  The term
Paying Agent includes any additional paying agent, including any named pursuant
to Section 4.05.  The term
Conversion Agent includes any additional conversion agent, including any named
pursuant to Section 4.05.


 


The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar
not a party to this Indenture, which shall incorporate the terms of the
TIA.  Any such agreement shall implement
the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the
name and address of any such agent.  If
the Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee may agree to act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07.  The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.


 


The Company initially appoints the Trustee as the
Paying Agent, the Conversion Agent, and the Registrar, in connection with the
Notes, and the office of American Stock Transfer & Trust Company, LLC
at 59 Maiden Lane, New York, New York 
10038, to be such office or


 


13

















 


agency of the Company for
the aforesaid purposes. The Company may at any time rescind the designation of
the Paying Agent, Conversion Agent or the Registrar or approve a change in the
location through which any of them acts.


 


Section 2.04           Paying Agent to Hold
Money and Notes in Trust. 
Except as otherwise provided herein, on or prior to 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 if deposited on the due date) or
shares of Common Stock or, as permitted by this Indenture, a combination
thereof, sufficient to make such payments when so becoming due.  The Paying Agent shall (or, if the Paying
Agent is not a party hereto, the Company shall require each Paying Agent to
agree in writing that such Paying Agent shall) hold in trust for the benefit of
Holders or the Trustee (if the Trustee is not the Paying Agent) all money and
shares of Common Stock held by the Paying Agent for the making of payments in
respect of the Notes and shall notify the Trustee (if the Trustee is not the Paying
Agent) of any default by the Company in making any such payment.  At any time during the continuance of any
such default, the Paying Agent (if not the Trustee) shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and Common Stock
so held in trust.  If the Company or a
Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money and
Common Stock held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all money and shares of Common Stock held by it to the Trustee and
to account for any funds and shares of Common Stock disbursed by the Paying
Agent.  Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.


 


Section 2.05           Holder Lists.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders.  If the
Trustee is not the Registrar, the Company shall furnish to the Trustee,
promptly after the Record Date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.


 


Section 2.06           Transfer and Exchange.


 


(a)         Subject to Section 2.12
hereof, upon surrender for registration of transfer of any Note, together with
a written instrument of transfer satisfactory to the Registrar duly executed by
the Holder or such Holder’s attorney duly authorized in writing, at the office
or agency of the Company-designated Registrar or co-Registrar pursuant to Section 2.03,
(i) the Company shall execute, and the Trustee (or any authenticating
agent) shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denomination or
denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture and (ii) the
Registrar shall record the information required pursuant to Section 2.03
regarding the designated transferee or transferees in the Register.  The Company shall not charge a service charge
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of,
transfer or exchange of the Notes from the Holder requesting such transfer or
exchange.


 


14

















 


At
the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination or denominations, of a like aggregate principal amount,
upon surrender of the Notes to be exchanged, at such office or agency, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Holder or such Holder’s attorney-in-fact duly authorized in
writing, and documents of identity and title satisfactory to Registrar.  Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes that the Holder making the exchange is entitled to receive,
bearing registration numbers not contemporaneously outstanding.


 


The
Company shall not be required to make, and the Registrar need not register,
transfers or exchanges of Notes in respect of which a Fundamental Change
Repurchase Notice has been given and not validly withdrawn by the Holder
thereof in accordance with the terms of this Indenture (except, in the case of
Notes to be repurchased in part, the portion of such Notes not to be
repurchased).


 


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


 


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


 


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


 


(e)           No Registrar shall be required to make registrations of
transfer or exchange of Notes during any periods designated in Paragraph 7 of
the form of Note attached as Exhibit A hereto or in this Indenture as
periods during which such registration of transfers and exchanges need not be
made.


 


(f)            Transfer Restrictions.


 


(i)       Every Note
that bears or is required under this Section 2.06(f) to bear the
Restricted Securities Legend required by Section 2.01(e) (the “Restricted Notes”) shall be subject to the restrictions on
transfer set forth in this Section 2.06(f) (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 Note, by such Holder’s acceptance thereof, agrees to be bound by all
such restrictions on transfer.  As used
in this Section 2.06(f), Section 2.06(g) and Sections 2.12(b) and
(c), the term “transfer” encompasses any sale,
pledge, transfer, loan, hypothecation or other disposition whatsoever of any
Restricted Note.  Except as otherwise
provided in this Indenture with respect to any Restricted Notes (including,
without limitation, Section 2.06(i) below) or as permitted under the
terms of such Restricted Notes Legend, if a request is made to remove the legend
on any Restricted Note, the


 


15

















 


legend
shall not be removed unless there is delivered to the Company and the Registrar
such satisfactory evidence that neither the Restricted Notes Legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A or Rule 144
or that such Notes are not “restricted” within the meaning of Rule 144.  In such a case, upon (i) provision of
such satisfactory evidence, or (ii) notification by the Company to the
Trustee and Registrar of the sale of such Note pursuant to a registration
statement that is effective at the time of such sale, the Trustee, pursuant to
a Company Order, shall authenticate and deliver a Note that does not bear the
Restricted Securities Legend.  If the
Restricted Securities Legend is removed from the face of a Note and the Note is
subsequently held by the Company or an Affiliate of the Company, the Restricted
Securities Legend shall be reinstated.


 


(ii)      Except as
provided elsewhere in this Indenture (including, without limitation, Section 2.06(i) below),
until the later of (x) the date that is one year after the last date of
original issuance of the Notes (including the last date of original issuance of
additional Notes pursuant to the exercise of the initial purchasers’
overallotment option) and (y) the date that is three months after the
Holder ceases to be an Affiliate of the Company, any certificate evidencing
such Notes (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof, which
shall bear the Restricted Stock Legend, if applicable) shall bear the
Restricted Securities Legend unless such Notes have been transferred (A) to
the Company, (B) under a registration statement that has been declared
effective under the Securities Act, (C) to a Person the seller reasonably
believes is a QIB that is purchasing for its own account or for the account of
another QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, all in compliance with Rule 144A, or (D) under
any other available exemption from the registration requirements of the
Securities Act.


 


(iii)     No transfer of
any Note prior to the Free Trade Date will be registered by the Registrar
unless the applicable box on the Form of Assignment and Transfer has been
checked.


 


(g)           Legends on the Common
Stock.


 


(i)       Except as
provided elsewhere in this Indenture (including, without limitation, Section 2.06(i) below),
until the later of (x) the date that is one year after the last date of
original issuance of the Notes (including the last date of original issuance of
additional Notes pursuant to the exercise of the initial purchasers’ overallotment
option) and (y) the date that is three months after the holder of such
shares of Common Stock ceases to be an Affiliate of the Company, any stock
certificate representing shares of the Common Stock issued upon conversion of
such Notes shall bear the Restricted Stock Legend unless the Notes or such
Common Stock, as applicable, has been transferred (a) to the Company; (b) under
a registration statement that has been declared effective under the Securities
Act; (c) to a Person the Holder reasonably believes is a
QIB that is purchasing for its own account or for the account of another QIB
pursuant to a valid private placement exemption under the Securities Act and to
whom notice is given that the transfer is being made in reliance on such an exemption; or (d) under any other available exemption
from the registration requirements of the Securities Act.


 


16

















 


(ii)      Any such
shares of 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 Restricted Stock Legend.


 


(h)           The Company shall not permit any Note or share of Common
Stock issued upon the conversion or exchange of a Note that is purchased or
owned by the Company or any Affiliate thereof to 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).  If the legend is removed from the face of a
Note and the Note is subsequently held by the Company or an Affiliate of the
Company, the legend shall be reinstated.


 


(i)            So long as and to the extent that the Notes are
represented by one or more Global Notes held by or on behalf of the Depositary
only, the Company may accomplish any delegending of such Notes represented by
such Global Notes at any time on or after the Free Trade Date by:


 


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


 


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


 


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


 


(iv)    complying with
any Applicable Procedures for delegending;


 


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


 


(j)            On and after the Free Trade Date, the Company shall also (i) instruct
the transfer agent for the Common Stock to remove the Restricted Stock Legend
from any shares of Common Stock issued upon conversion of the Notes that bears
the Restricted Stock Legend; (ii) notify the holders of any shares of
Common Stock issued upon conversion of the Notes (to the extent any shares of
Common Stock have been issued upon conversion of the Notes) that such
Restricted Stock Legend has been removed; (iii) if relevant, notify the
transfer agent for the Common Stock to change the CUSIP number for the shares
of Common Stock issued upon conversion of the Notes to the applicable
unrestricted CUSIP number; and (iv) comply with any Applicable Procedures
for delegending any shares of Common Stock issued upon conversion of a Note
including the Restricted Stock Legend.


 


Section 2.07           Replacement Notes.  If a mutilated Note is surrendered to the
Registrar or if the Holder of a Note claims that such Note has been lost,
destroyed or stolen and the Holder


 


17

















 


provides evidence of the
loss, theft or destruction satisfactory to the Company and the Trustee, the
Company shall issue and the Trustee shall authenticate a replacement Note if
the requirements of Section 8-405 of the Uniform Commercial Code are
met and the Holder satisfies any other reasonable requirements of the
Trustee.  If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss that any of
them may suffer if a Note is replaced. 
The Company and the Trustee may charge the Holder for their expenses in
replacing a Note.


 


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


 


Every new Note issued pursuant to this Section 2.07
in exchange for any mutilated Note, or in lieu of any 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.


 


Section 2.08           Outstanding Notes.  Notes outstanding at any time are all Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding.  A Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note; provided, however, that
in determining whether the Holders of the requisite principal amount of Notes
have given or concurred in any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder, Notes owned by the Company
or any obligor upon the Notes or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding.  Subject to the foregoing, only Notes
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9).


 


If a Note is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.


 


If the Paying Agent holds, in accordance with this
Indenture, on a Fundamental Change Repurchase Date or on the Maturity Date,
money sufficient to pay Notes payable on that date, then immediately after such
Fundamental Change Repurchase Date or Maturity Date, as the case may be, such
Notes shall cease to be outstanding and interest (including Additional Interest),
if any, on such Notes shall cease to accrue and such Notes shall cease to be
convertible.


 


If a Note is converted in accordance with Article 10,
then from and after the time of conversion on the Conversion Date, such Note
shall cease to be outstanding and interest (including Additional Interest), if
any, shall cease to accrue on such Note.


 


18

















 


Section 2.09           Temporary Notes.  Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes (“Temporary Notes”).  Temporary Notes shall be substantially in the
form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes.  Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes and deliver them in exchange for Temporary Notes.


 


Section 2.10           Cancellation.  The Company at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar, Conversion Agent and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange,
conversion or payment.  The Trustee and
no one else shall cancel all Notes surrendered for registration of transfer,
exchange, conversion payment or cancellation and shall dispose of such
cancelled Notes in its customary manner. 
The Company may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 10.


 


Section 2.11           Persons Deemed Owners.  Prior to due presentment of a Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Note is registered in the
Register as the owner of such Note for the purpose of receiving payment of
principal, interest (including any Additional Interest), and any Extension Fee
or payment of the Fundamental Change Repurchase Price, for the purpose of
conversion and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.


 


Section 2.12           Transfer of Notes.  Notwithstanding any other
provisions of this Indenture or the Notes, (A) transfers of a Global Note,
in whole or in part, shall be made only in accordance with Section 2.06
and Section 2.12(a)(i); (B) transfers of a beneficial interest in a
Global Note for a Certificated Note shall comply with Section 2.06 and Section 2.12(a)(ii) below,
and (C) transfers of a Certificated Note shall comply with Section 2.06
and Section 2.12(a)(iii) and (iv) below.  Any such transfer shall comply with the
Applicable Procedures to the extent so required.


 


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


 


(ii)      Restrictions on Transfer of a Beneficial Interest
in a Global Note for a Certificated Note.  A beneficial interest in a Global Note may
not be exchanged for a Certificated Note except:


 


19

















 


(A)          Certificated Notes shall be issued to all owners of
beneficial interests in a Global Note in exchange for such interests if:


 


(1)           DTC notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note and a successor Depositary is not
appointed by the Company within 90 days of such notice; or


 


(2)           the Company, at any time, in its sole discretion, executes
and delivers to the Trustee and the Registrar an Officers’ Certificate stating
that the entire Global Note shall be so exchangeable.


 


In connection with the exchange of an entire Global
Note for Certificated Notes pursuant to this Subsection (ii), such Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and upon Company Order the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations.


 


(B)           The owner of a beneficial interest in a Global Note will
be entitled to receive a Certificated Note in exchange for such interest if an
Event of Default has occurred and is continuing.


 


Upon receipt by the Registrar of instructions from
the Holder of a Global Note directing the Registrar to (x) issue one or
more Certificated Notes in the amounts specified to the owner of a beneficial
interest in such Global Note and (y) debit or cause to be debited an
equivalent amount of beneficial interest in such Global Note, subject to the
Applicable Procedures:


 


1)             the
Registrar shall notify the Company and the Trustee of such instructions,
identifying the owner and amount of such beneficial interest in such Global
Note;


 


2)             the
Company shall promptly execute, and upon Company Order the Trustee shall authenticate
and deliver, to such beneficial owner Certificated Note(s) in an
equivalent amount to such beneficial interest in such Global Note; and


 


3)             the
Registrar shall decrease such Global Note by such amount in accordance with the
foregoing.


 


(iii)          Transfer and Exchange of Certificated Notes.  When Certificated Notes are presented to the
Registrar with a request:  (x) to
register the transfer of such Certificated Notes; or (y) to exchange such
Certificated Notes for an equal principal amount of Certificated Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction are
met; provided, however,
that the Certificated Notes surrendered for transfer or exchange:


 


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


 


20
















 


(2)           so long as such
Notes are “restricted securities” (as defined under Rule 144), such Notes
are being transferred or exchanged pursuant to an effective registration
statement under the Securities Act or pursuant to clause (A), (B) or (C) below,
and are accompanied by the following additional information and documents, as
applicable:


 


(A)          if such
Certificated Notes are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification from
such Holder to that effect; or


 


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


 


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


 


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


 


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


 


(A)          so long as the
Notes are Restricted Notes, certification, in the form set forth in Exhibit B,
that such Certificated Note is being transferred to a QIB in accordance with Rule 144A;
and


 


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


 


(b)           Subject to the
succeeding Section 2.12(c), every Note shall be subject to the
restrictions on transfer provided in Section 2.06(f), including the
delivery of an opinion of counsel, if so required.  Whenever any Restricted Note is presented or
surrendered for registration of transfer or for exchange for a Note registered
in a name other than that of the Holder, such Note must be accompanied by a certificate
in substantially the form set forth in


 


21

















 


Exhibit B, dated the date of such
surrender and signed by the Holder of such Note, as to compliance with such
restrictions on transfer.  The Registrar
shall not be required to accept for such registration of transfer or exchange
any Note not so accompanied by a properly completed certificate.


 


(c)           The
restrictions imposed by Sections 2.06(f) upon the transferability of any
Note shall cease and terminate when such Note has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 or, if earlier, upon the expiration of the
holding period applicable to sales thereof under Rule 144 by a Person
other than an Affiliate or a former Affiliate. 
Any Note as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of
such Note for exchange to the Registrar in accordance with the provisions of
this Section 2.12 (accompanied, in the event that such restrictions on
transfer have terminated by reason of a transfer in compliance with Rule 144
or any successor provision, by an opinion of counsel having substantial
experience in practice under the Securities Act and otherwise reasonably
acceptable in form and substance to the Company, addressed to the Company, to
the effect that the transfer of such Note has been made in compliance with Rule 144),
be exchanged for a new Note, of like tenor and aggregate principal amount,
which shall not bear the legends required by Section 2.01(e).  The Company shall inform the Trustee upon the
occurrence of the Free Trade Date and promptly after a registration statement
with respect to the Notes or any shares of Common Stock issued upon conversion
of the Notes has been declared effective under the Securities Act.  The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.


 


(d)           The provisions
of clauses (i), (ii), (iii) and (iv) below shall apply only to Global
Notes:


 


(i)       Notwithstanding
any other provisions of this Indenture or the Notes, a Global Note shall not be
exchanged in whole or in part for a Note registered in the name of any Person
other than the Depositary or one or more nominees thereof, provided
that a Global Note may be exchanged for Notes registered in the name of any
Person designated by the Depositary in the event that (A) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Note or such Depositary has ceased to be a “clearing
agency” registered under the Exchange Act, and a successor Depositary is not
appointed by the Company within 90 days or (B) an Event of Default has
occurred and is continuing with respect to the Notes.  Any Global Note exchanged pursuant to clause (A) above
shall be so exchanged in whole and not in part, and any Global Note exchanged
pursuant to clause (B) above may be exchanged in whole or from time to
time in part as directed by the Depositary. 
Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note; provided that
any such Note so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Note.


 


(ii)      Notes
issued in exchange for a Global Note or any portion thereof shall be issued in
definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Note or portion thereof
to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall


 


22

















 


designate and shall bear the applicable legends provided for herein.  Any Global Note to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar.  With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for exchange
or, if the Trustee is acting as custodian for the Depositary or its nominee
with respect to such Global Note, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee.  Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Note issuable on such exchange to or
upon the order of the Depositary or an authorized representative thereof.


 


(iii)     Subject to
the provisions of Section 2.12(e), the Holder may grant proxies and
otherwise authorize any Person, including Agent Members (as defined below) and
Persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Notes.


 


(iv)     In the
event of the occurrence of any of the events specified in clause (i) above,
the Company will promptly make available to the Trustee a reasonable supply of
Certificated Notes in definitive, fully registered form, without interest
coupons.


 


(e)           Neither any
members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf any
Agent Member may act shall have any rights under this Indenture with respect to
any Global Note registered in the name of the Depositary or any nominee
thereof, or under any such Global Note, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner and holder of such Global Note
for all purposes whatsoever.  The Trustee
shall have no responsibility or obligation to any Agent Members or any other
Person on whose behalf Agent Members may act with respect to (i) any
ownership interests in the Global Note, (ii) the accuracy of the records
of the Depositary or its nominee (iii) any notice required hereunder or (iv) any
payments under or with respect to the Global Note.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other Person on
whose behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any Note.  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.


 


Section 2.13           CUSIP and ISIN Numbers.


 


(a)           The Company, in
issuing the Notes, will use restricted CUSIP and ISIN numbers for such Notes
(if then generally in use) until such time as the Restricted Securities Legend
is removed pursuant to Section 2.06(i). 
At such time as the legend is removed from such Notes pursuant to Section 2.06(i),
the Company will use an unrestricted CUSIP number for such Note, but only with
respect to the Notes where so removed. 
The Trustee shall use CUSIP and ISIN numbers in notices of redemption as
a convenience to Holders; provided, however, that


 


23

















 


neither the Company nor the Trustee shall
have any responsibility for any defect in the CUSIP or ISIN number that appears
on any Note, check, advice of payment or redemption notice, and any such notice
may state that no representation is made as 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 the event of any change
in the CUSIP or ISIN numbers.


 


(b)           Except as
otherwise provided in this Section 2.13(b), the Company, upon issuing
shares of Common Stock upon conversion of Notes, will use a restricted CUSIP
number for shares of each series of Common Stock.  Until such time as the Restricted Stock
Legend is removed pursuant to Section 2.06(i) from shares of such
series of Common Stock, the restricted CUSIP for such series of Common Stock
will be the CUSIP number for shares of such series of the Common Stock.  At such time as the Restrictive Stock Legend
is removed from shares of a series of the Common Stock pursuant to Section 2.06(i) or
otherwise, an unrestricted CUSIP number for such series of the Common Stock
will be deemed to be the CUSIP number for shares of such series of the Common
Stock therefor, but only with respect to the shares where so removed.


 


ARTICLE 3

REDEMPTION AND REPURCHASES


 


Section 3.01           No
Company Right to Redeem.  The
Company shall have no right to redeem the Notes before the Maturity Date.


 


Section 3.02           Repurchase of Notes at Option of the Holder Upon a
Fundamental Change.


 


(a)           If a
Fundamental Change occurs, each Holder shall have the right, at its option, to
require the Company to repurchase in cash, on the Fundamental Change Repurchase
Date, all of its Notes, or any portion of its Notes in principal amount equal
to $1,000 or an integral multiple thereof, at a price (the “Fundamental Change Repurchase Price”) equal to 100% of the
principal amount of such Notes plus accrued and unpaid interest, if any, to
(but excluding) the Fundamental Change Repurchase Date; provided,
however, that if the Fundamental Change
Repurchase Date occurs after a record date for the payment of interest, but on
or prior to the corresponding interest payment date, the Company will pay the
full amount of accrued and unpaid interest payable on such interest payment
date to the Holder of the applicable Note on such record date and the
Fundamental Change Repurchase Price shall be reduced by such amount.


 


Section 3.03           Fundamental Change Notice.


 


(a)           At least 45
Scheduled Trading Days immediately prior to the anticipated effective date of a
Fundamental Change, the Company shall deliver written notice of such
Fundamental Change (the “Fundamental Change Notice,”
and the date of such mailing,
the “Fundamental Change Notice Date”) by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law); provided, however, that if the Company does


 


24

















 


not have knowledge of such transaction on such date, the Company shall
mail such Fundamental Change Notice to the Trustee and the Holders as promptly
as practicable upon obtaining knowledge of such Fundamental Change and in no
event later than three Business days immediately following the Fundamental
Change Effective Date.  The Company shall
also publish a copy of the notice on its website or through another public
medium that the Board of Directors reasonably believes will be viewed by
Holders.


 


(b)           The Fundamental
Change Notice shall state:


 


(i)          briefly,
the nature of the Fundamental Change and the Fundamental Change Effective Date;


 


(ii)         the date on
which the Company will repurchase Notes tendered by Holders exercising their
repurchase right (the “Fundamental Change
Repurchase Date”), such date to be set by the Company no fewer than
20 Business Days and no more than 35 Business Days after the Fundamental Change
Effective Date;


 


(iii)        the
Fundamental Change Repurchase Price;


 


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


 


(v)         that
payment may be collected only if the Notes to be repurchased are surrendered to
the Paying Agent;


 


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


 


(vii)       briefly,
the procedures the Holder must follow to exercise its rights under this Section 3.03;


 


(viii)      briefly,
the conversion rights of the Notes, including the satisfaction of the condition
to conversion described in Section 10.01(a);


 


(ix)         the
Conversion Rate in effect on the Fundamental Change Notice Date;


 


(x)          any
adjustments that will be made to the Conversion Rate as a result of the
Fundamental Change, including, without limitation, any Additional Shares by
which the Conversion Rate will be increased pursuant to Section 10.07;


 


(xi)         that any
Notes with respect to which a Fundamental Change Repurchase Notice has been
given may be converted only if such Fundamental Change Repurchase Notice is
validly withdrawn in accordance with the terms of this Indenture;


 


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


 


25

















 


(xiii)       that,
unless the Company defaults in making payment of such Fundamental Change
Repurchase Price on the Notes surrendered for repurchase by the Company,
interest on Notes for which a Fundamental Change Repurchase Notice has been
validly given will cease to accrue on and after the Fundamental Change
Repurchase Date; and


 


(xiv)      the CUSIP
and ISIN number(s) of the Notes.


 


In addition, the Company shall include with such
Fundamental Change Notice a form of Fundamental Change Repurchase Notice to be
completed by the Holder and the notice.


 


Section 3.04           Fundamental Change Repurchase Notice.


 


(a)           To exercise its
repurchase rights under Section 3.02(a), a Holder must deliver to the
Trustee, by the Close of Business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, (i) a written notice  (a “Fundamental Change
Repurchase Notice”) of its exercise of such repurchase rights and (ii) any
of its Notes to be repurchased on such Fundamental Change Repurchase Date.  The Fundamental Change Repurchase Notice must
state:


 


(A)          the portion of
the principal amount of the Notes which the Holder will deliver to be
repurchased, which portion must be $1,000 or an integral multiple thereof;


 


(B)           that such Notes
shall be repurchased pursuant to the terms and conditions specified in this
Indenture; and


 


(C)           if Certificated
Notes have been issued, the certificate numbers of the Notes which the Holder
will deliver to be repurchased.


 


If the Notes to be repurchased are in book-entry
form, the Holder must deliver the Notes to be repurchased in accordance with
the Applicable Procedures.


 


(b)           Unless and
until the Trustee receives a validly endorsed and delivered Fundamental Change
Repurchase Notice, together with any Notes to which such Fundamental Change
Repurchase Notice pertains, in a form that conforms with the description
contained in such Fundamental Change Repurchase Notice in all material aspects,
the Holder submitting the Notes shall not be entitled to receive the
Fundamental Change Repurchase Price for such Notes.


 


Section 3.05           Effect of Fundamental Change Repurchase Notice.


 


(a)           Upon the
Trustee’s receipt of (i) a valid Fundamental Change Repurchase Notice
(together with all necessary endorsements) and (ii) the Notes to which
such Fundamental Change Repurchase Notice pertains, the Holder of the Notes to
which such Fundamental Change Repurchase Notice pertains shall be entitled,
unless such Holder has validly withdrawn such Fundamental Change Repurchase
Notice in accordance with Section 3.05(b) below, to receive the
Fundamental Change Repurchase Price with respect to such Notes promptly
following the later of (i) the Fundamental Change Repurchase Date and (ii) the
date of delivery of such Notes to the Trustee. 
Upon the Trustee’s receipt of a valid Fundamental Change Repurchase
Notice, the Holder of the Notes to which such 
Fundamental Change Repurchase Notice pertains will no


 


26

















 


longer have the right to convert such Notes
unless and until such Holder validly withdraws such Fundamental Change
Repurchase Notice in accordance with Section 3.05(b) below.


 


(b)           After
delivering a Fundamental Change Repurchase Notice to the Trustee, a Holder may
withdraw such Fundamental Change Repurchase Notice by delivering to the Trustee
a written notice of withdrawal at any time prior to the Close of Business on
the Business Day immediately preceding the Fundamental Change Repurchase
Date.  Such notice of withdrawal must
specify:


 


(i)       the
principal amount of any Notes with respect to which the notice of withdrawal
pertains, which must equal $1,000 or an integral multiple thereof;


 


(ii)      if
Certificated Notes have been issued, the certificate numbers of the Notes to be
with respect of which such notice of withdrawal pertains; and


 


(iii)     the
principal amount, if any, that remains subject to the original Fundamental
Change Repurchase Notice, which amount must equal $1,000 or an integral
multiple thereof.


 


If the Notes are held in book entry form, the
notice of withdrawal must also comply with the Applicable Procedures.


 


Section 3.06           Deposit
of Fundamental Change Repurchase Price.  Prior to 10:00 a.m., New York City
time, on the Fundamental Change Repurchase Date, as the case may be, 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 2.04) an
amount of cash (in immediately available funds if deposited on such Business
Day), sufficient to pay the aggregate Fundamental Change Repurchase Price of
all the Notes or portions thereof which are to be repurchased as of the
Fundamental Change Repurchase Date.


 


Section 3.07           Notes
Repurchased in Part.  Any
Certificated Note that is to be repurchased only in part shall be surrendered
at the office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder’s attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Note so
surrendered which is not repurchased, 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 repurchased portion of the Note surrendered.


 


Section 3.08           Covenant
to Comply with Notes Laws Upon Repurchase of Notes.  When repurchasing Notes under Section 3.02,
the Company will, to the extent applicable, (i) comply with Rule 13e-4
(or any successor provision) and Rule 14e-1 (or any successor
provision) under the Exchange Act, (ii) file the related Schedule TO (or
any successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with any applicable federal and state Notes


 


27

















 


laws so as to permit Holders
to exercise their rights and obligations under Section 3.02 in the time
and in the manner specified in Section 3.02.


 


Section 3.09           Repayment
to the Company.  The Trustee
and the Paying Agent shall return to the Company any cash held by them for the
payment of the Fundamental Change Repurchase Price that remains unclaimed as
provided in Paragraph 12 of the form of Note attached as Exhibit A hereto;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.04 exceeds the aggregate
Fundamental Change Repurchase Price of the Notes or portions thereof which the
Company is obligated to repurchase as of the Fundamental Change Repurchase
Date, then, unless otherwise agreed in writing with the Company, promptly after
the Business Day following the Fundamental Change Repurchase Date, the Trustee
shall return any such excess to the Company.


 


ARTICLE 4

COVENANTS


 


Section 4.01           Payment of Notes.


 


(a)           The Company
shall promptly make all payments in respect of the Notes on the dates and in
the manner provided in the Notes or pursuant to this Indenture.  Any amounts of cash and/or shares of Common
Stock to be given to the Trustee, the Transfer Agent or the Conversion Agent
shall be deposited by the Company with the Trustee, the Paying Agent or the
Conversion Agent by 10:00 a.m., 
New York City time, on the required date.  The Company may, at its option, make payments
in respect of the Notes by check mailed to a Holder’s registered address (or,
if requested by a Holder of more than $1,000,000 principal amount of the Notes,
by wire transfer to the account designated in writing by such Holder) or, with
respect to Global Notes, by wire transfer. 
The Company shall make any required interest (including any Additional
Interest) payments to the Person in whose name each Note is registered at the
Close of Business on the Record Date for such interest payment.  The principal, accrued and unpaid interest
(including Additional Interest), if any, any Extension Fee or payment of the
Fundamental Change Repurchase Price shall be considered paid on the applicable
date due if on such date (or, in the case of a Fundamental Change Repurchase Price, on
the Business Day following the applicable Fundamental Change Repurchase Date)
the Trustee or the Paying Agent holds, in accordance with this Indenture, cash
sufficient to pay all such amounts then due.


 


Section 4.02           SEC and Other Reports.


 


(a)           For so long as
the Notes are outstanding, the Company shall file with the SEC the Company’s
annual and quarterly reports, information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act and will file
such annual and quarterly reports, information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) with the Trustee, and make such information available
through the mail or on the Company’s website, within 15 days of the date on
which it would be required to file the same with the SEC.  In the event the Company is at any time no
longer subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, it shall continue to provide the Trustee


 


28

















 


and the Holders with annual and quarterly
reports containing substantially the same information as would have been
required to be filed with the SEC had the Company continued to have been
subject to such reporting requirements. 
In such event, such annual and quarterly reports shall be provided at
the times the Company would have been required to provide reports had it
continued to have been subject to such reporting requirements.  The Company also shall comply with the other
provisions of TIA Section 314(a). 
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates).


 


(b)           If, at any time
during the six-month period beginning on, and including, the date which is six
months after the last date of original issuance of the Notes (including the
last date of original issuance of additional Notes pursuant to the exercise of
the initial purchasers’ overallotment option) (such date, the “Start Date”) and ending on the Free Trade Date, the Company
fails to timely file any periodic report that the Company is required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act, as applicable (other than current reports on Form 8-K), the
Company shall pay interest (the “Additional Interest”)
at an annual rate equal to 0.50% of the aggregate principal amount of the
Notes, accruing from the due date of the first missed filing that gives rise to
such obligation and continuing to the earlier of (i) the Free Trade Date
and (ii) the date all such filings have been made.


 


(c)           In addition, if
the Company fails to cause the Notes or the shares of the Common Stock issuable
upon conversion of the Notes that are held by Holders that have not been
Affiliates of the Company during the immediately preceding three months to
become Freely Tradable on the Free Trade Date (or the next succeeding Business
Day if the Free Trade Date is not a Business Day), the Company will pay
Additional Interest on the Notes at an annual rate equal to 0.50% of the
aggregate principal amount of the Notes from, and including the Free Trade Date
and until the date on which the Notes and the shares of Common Stock issuable
upon conversion of the Notes become Freely Tradable.


 


(d)           Whenever
Additional Interest is accruing on a Record Date, the Company will pay all
accrued and unpaid Additional Interest to the Holders of record on such Record
Date on the corresponding Interest Payment Date.  If Additional Interest is not accruing on a
Record Date, but has accrued since the immediately preceding Record Date, the
Company shall pay any accrued and unpaid Additional Interest on the Interest
Payment Date corresponding to the latter Record Date to Holders of record on
such latter Record Date.


 


In the event that the Company is required to pay
Additional Interest or Extension Fees to Holders, the Company shall provide a
direction or order in the form of a written notice to the Trustee (and if the
Trustee is not the Paying Agent, to the Paying Agent) of the Company’s
obligation to pay such Additional Interest or Extension Fee no later than three
Business Days prior to the date on which any such Additional Interest or
Extension Fee is scheduled to be paid. 
Such notice shall set forth the amount of Additional Interest or
Extension Fee to be paid by the Company on such payment date and direct the
Trustee (or, if the Trustee is not the Paying Agent, to the Paying Agent) to
make payment to the extent it receives funds from the Company to do so.  The Trustee shall not at any time be under
any duty or responsibility to any Holder to determine


 


29

















 


whether the Additional
Interest or Extension Fee is payable, or with respect to the nature, extent, or
calculation of the amount of the Additional Interest or Extension Fee owed, or
with respect to the method employed in such calculation of the Additional
Interest or Extension Fee.


 


Section 4.03           Compliance
Certificate.  The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year
(beginning with the fiscal year ending September 30, 2010) of the Company
an Officers’ Certificate (which Officers’ Certificate shall not be required to
include such statements included in Section 13.05), stating whether or not
to the best knowledge of the signers thereof, the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.


 


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


 


Section 4.05           Maintenance
of Office or Agency.  The Company
will maintain in New York, New York, an office or agency of the Trustee,
Registrar, Paying Agent and Conversion Agent where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer, exchange, repurchase, redemption or conversion and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served.  The office of American Stock
Transfer & Trust Company, LLC, at 59 Maiden Lane, New York, New York
10038 (Attention:  Corporate Trust
Department), shall initially be such office or agency for all of the aforesaid
purposes.  The Company shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the Corporate Trust Office of the Trustee). 
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 13.02.


 


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 shall in any manner relieve the Company
of its obligation to maintain an office or agency in New York, New York for
such purposes.


 


Section 4.06           Delivery
of Certain Information.  At
any time when the Company is not subject to Sections 13 or 15(d) of the
Exchange Act, upon the request of a Holder or any beneficial owner of Notes or
holder or beneficial owner of shares of Common Stock issued upon conversion of
Notes, the Company will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder or any beneficial owner of Notes
or holder or beneficial owner of shares of Common Stock issued upon conversion
of Notes, or to a prospective purchaser of any such Note designated by any such
Holder, as the case may be, to the extent required to permit compliance by such
Holder or holder with Rule 144A in connection with the resale of any such
Note.  “Rule 144A
Information” shall be such information as is


 


30
















 


specified pursuant to Rule 144A(d)(4) under
the Securities Act.  Whether a Person is
a beneficial owner shall be determined by the Company to the Company’s
reasonable satisfaction.


 


Section 4.07           Par
Value Limitation.  The Company
will not take any action that, after giving effect to any adjustment pursuant
to Section 10.05, would result in the issuance of shares of Common Stock
for less than the par value of such shares of Common Stock.


 


ARTICLE 5

SUCCESSOR CORPORATION


 


Section 5.01           When Company May Merge or Transfer Assets.


 


(a)           The Company
shall not consolidate with or merge into any other Person or sell, convey,
lease or transfer all or substantially all of its assets to any other Person in
any one transaction or series of related transactions, or permit any Person to
consolidate with or merge into the Company, unless:


 


(i)       either
(a) the Company is the surviving Person or (b) if the Company is not
the surviving Person, then either the surviving Person formed by such
consolidation or into which the Company is merged or the Person to which the
Company’s assets are so transferred shall be a corporation organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia; provided, however, that the surviving Person shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Notes and this Indenture;


 


(ii)      immediately
after giving effect to such transaction, no Event of Default and no Default
shall have occurred and be continuing; and


 


(iii)     before
giving effect to such transaction, the Company shall have delivered to the
Trustee an Officers’ Certificate stating that such consolidation, merger,
conveyance, transfer, sale or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.


 


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


 


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ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01           Events of Default.


 


(a)           Each of the
following events shall be an “Event of Default”:


 


(i)       the
Company fails to pay any interest (including any Additional Interest) or
Extension Fee on the Notes when it becomes due and payable, and such default
continues for a period of 30 days;


 


(ii)      the
Company fails to pay all or any part of the principal and any accrued and
unpaid interest on the Notes when it becomes due and payable at the Maturity
Date, upon acceleration,  upon a
Fundamental Change Repurchase Date or otherwise (including the failure to make
an offer to repurchase the Notes upon the occurrence of a Fundamental Change in
accordance with Section 3.03 or to pay the Fundamental Change Repurchase
Price in accordance with Section 3.02);


 


(iii)     the Company
fails to provide a Fundamental Change Notice as required by Section 3.03,
a notice as required by Section 10.01(a)(iii) or a notice as required
by Section 10.06(c);


 


(iv)     the Company
defaults in its obligations under Article 10 to deliver the shares of
Common Stock, cash or a combination of cash and shares of Common Stock
(including an amount of cash in lieu of fractional shares of Common Stock) as
required to be delivered upon the conversion of any Notes under Article 10;


 


(v)      the
Company defaults in its observance or performance of any covenant or agreement
in respect of the Notes contained in the Notes or in this Indenture for a
period of 30 days after it receives written notice from the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding specifying such default and demanding that such default be
remedied;


 


(vi)     the Company
or any of its Significant Subsidiaries defaults under any instrument or
instruments evidencing indebtedness (other than the Notes) having an aggregate
outstanding principal amount of $25,000,000 (or its equivalent in any other
currency or currencies) or more that results in the acceleration of the
maturity of such indebtedness unless such acceleration has been rescinded or
annulled within 30 days after written notice of such acceleration has been
received by the Company or such Significant Subsidiary;


 


(vii)    one or more
judgments in an aggregate amount in excess of $25,000,000 million shall have
been rendered against the Company or any of its Significant Subsidiaries and
remains or remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and nonappealable;


 


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


 


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(A)          commences a
voluntary case;


 


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


 


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


 


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


 


(E)           takes any
comparable action under any foreign laws relating to insolvency; or


 


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


 


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


 


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


 


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


 


(D)          grants any
similar relief under any foreign 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.


 


Notwithstanding anything to the contrary in the
Notes or elsewhere in this Indenture, a Default under clause (v) of this Section 6.01(a) is
not an Event of Default until the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding notify the Company
(and in the case of such notice by Holders, the Trustee) of the Default and the
Company does not cure such Default within the time specified after receipt of
such notice.  Such notice must specify
the Default, demand that it be remedied and state that such notice is a “Notice
of Default”.


 


(b)           Within the 30
days immediately following the occurrence of an Event of Default or any
Default, the Company shall deliver to the Trustee written notice thereof in the
form of an Officers’ Certificate describing such Event of Default or Default and
its status and explaining what action the Company is taking or proposes to take
with respect thereto.


 


33

















 


(c)           Notwithstanding
anything to the contrary in the Notes or elsewhere in this Indenture, at the election
of the Company, the sole remedy for an Event of Default specified in Section 6.01(a)(v) relating
to the failure by the Company to comply with Section 4.02 (the “Company’s Filing Obligations”) and for any failure by the
Company to comply with the requirements of Section 314(a)(1) of the
Trust Indenture Act, shall for the first 120 days after the occurrence of such
an Event of Default consist exclusively of the right to receive an extension
fee (the “Extension Fee”) on the Notes at an
annual rate equal to 0.50% of the principal amount of the Notes.  The Extension Fee will be in addition to any
Additional Interest required under Section 4.02 and will be payable in the
same manner as Additional Interest.  This
Extension Fee will accrue on the Notes from and including the date on which an
Event of Default relating to a failure to comply with the Company’s Filing
Obligations or relating to the failure to comply with the requirements of Section 314(a)(1) of
the Trust Indenture Act first occurs to but not including the 120th 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 6.04).  On such 120th day (or earlier, if such Event
of Default is cured or waived pursuant to Section 6.04 prior to such 120th
day), such Extension Fee will cease to accrue and, if such Event of Default has
not been cured or waived pursuant to Section 6.04 prior to such 120th 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 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 Extension Fee as the sole remedy for an
Event of Default specified in Section 6.01(a)(v) relating to the
failure by the Company to comply with the Company’s Filing Obligations or
relating to any failure by the Company to comply with the requirements of Section 314(a)(1) of
the Trust Indenture Act, the Company shall notify, in the manner provided for
in Section 13.02, the Holders and the Trustee of such election at any time
on or before the Close of Business on the day prior to the date any such Event
of Default first occurs.  If the
Extension Fee is payable under this Section 6.01(c), the Company shall
deliver to the Trustee a certificate to that effect stating the date on which
such Extension Fee is payable.  Unless
and until a Trust Officer receives at the Corporate Trust Office such a
certificate, the Trustee may assume without inquiry that no Extension Fee is
payable.  If the Extension Fee has been
paid by the Company directly to the Persons entitled to it, the Company shall deliver
to the Trustee a certificate setting forth the particulars of such payment.


 


Section 6.02           Acceleration.  If an Event of Default (other than an Event
of Default specified in Sections 6.01(a)(viii) or Section 6.01(a)(ix) with
respect to the Company) 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 (including Additional
Interest), if any, on all the 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 Sections 6.01(viii) or
6.01(ix) with respect to the Company occurs and is continuing, the
principal amount of Notes outstanding plus accrued and unpaid interest 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 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 is before any judgment or decree
has


 


34

















 


been obtained and if all
existing Events of Default have been cured other than nonpayment of the
principal amount or accrued but unpaid interest (including Additional
Interest), if any, that has become due solely as a result of acceleration.  No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


Section 6.03           Other
Remedies.  If an Event
of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, accrued and unpaid interest
(including Additional Interest), if any, and any Extension Fee or payment of
the Fundamental Change Repurchase Price 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 6.04           Waiver
of Past Defaults.  The Holders
of a majority in aggregate principal amount of the Notes at the time
outstanding by written notice to the Trustee and without notice to any other
Holder may waive an existing or past default and its consequences except (a) an
Event of Default described in Sections 6.01(a)(i) or 6.01(a)(ii) (other
than any nonpayment of principal of the Notes that has become due solely by
reason of a declaration of acceleration, to the extent that such declaration of
acceleration is duly rescinded in accordance with this Indenture), (b) a
default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder or (c) an Event of Default
described in Section 6.01(a)(iv). 
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.


 


Section 6.05           Control
by Majority.  The Holders
of a majority in aggregate principal amount of the Notes at the time
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee.  However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is
prejudicial to the rights of other Holders or would potentially involve the
Trustee in personal liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.  Prior to taking any action hereunder, the
Trustee shall be entitled to reasonable indemnification against all losses and
expenses caused by taking or not taking such action.


 


Section 6.06           Limitation
on Suits.  A Holder
may pursue any remedy with respect to this Indenture or the Notes 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;


 


35

















 


(c)           such Holder
shall have offered indemnity reasonably satisfactory to the Trustee to pursue
such proceeding as trustee; and


 


(d)           the Trustee has
failed to institute such proceeding within 60 days after such notice, request
and offer of indemnity and, during such 60-day period, has not received from
the Holders of at least a majority in aggregate principal amount of the Notes
outstanding at the time a direction inconsistent with such request.


 


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 6.07           Rights
of Holders to Receive Payment.  Notwithstanding any other provision of this
Indenture, the right of any Holder to bring suit for the enforcement of payment
of principal, accrued and unpaid interest (including Additional Interest), if
any, and any Extension Fee or payment of the Fundamental Change Repurchase
Price on or after the respective due dates expressed in such Holder’s Notes,
and to convert the Notes in accordance with Article 10, shall not be impaired
or affected without the consent of such Holder and shall not be subject to the
requirements of Section 6.06.


 


Section 6.08           Collection
Suit by Trustee.  If an Event
of Default specified in Section 6.01(a)(i) or 6.01(a)(ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount then due
and owing (together with interest on any unpaid interest (including Additional
Interest) to the extent lawful) and the amounts provided for in Section 7.07.


 


Section 6.09           Trustee
May File Proofs of Claim.  The Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Holders 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 7.07.


 


Section 6.10           Priorities.  If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:


 


FIRST:  to the
Trustee for amounts due under Section 7.07;


 


SECOND:  to Holders for amounts due and unpaid on the
Notes for principal, accrued and unpaid interest (including Additional Interest),
if any, and any Extension Fee or payment of the Fundamental Change Repurchase
Price, 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.


 


36

















 


The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10.  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 6.11           Undertaking
for Costs.  In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant in the suit 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 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate principal amount of the Notes at the
time outstanding.


 


Section 6.12           Waiver
of Stay, Extension or Usury 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.


 


ARTICLE 7

TRUSTEE


 


Section 7.01           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:


 


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


 


(ii)      in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; provided, however, that the Trustee will examine the certificates and
opinions to determine whether they conform to the requirements set forth in
this Indenture.


 


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


 


(i)       this
paragraph does not limit the effect of Section 7.01;


 


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


 


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


 


(d)           Whether herein
expressly so provided, every provision of this Indenture that in any way
relates to the Trustee is subject to Sections 7.01(a), (b) and (c).


 


(e)           The Trustee
shall not be liable for interest on any money received by it or risk or expend
any of its own funds.


 


(f)            Money or shares
of 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 financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers.


 


(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 Article 7
and to the provisions of the TIA, and the provisions of this Article 7
shall apply to the Trustee, Registrar, Paying Agent and Conversion Agent.


 


(i)            The Trustee
shall not be deemed to have notice of a Default or an Event of Default unless (i) a
Trust Officer of the Trustee has received written notice at its Corporate Trust
Office thereof from the Company or any Holder or (ii) a Trust Officer
shall have actual knowledge thereof.


 


Section 7.02           Rights of Trustee.


 


(a)           The Trustee may
conclusively rely upon any document believed by it to be genuine and to have
been signed or presented by the proper person. 
The Trustee need not investigate any fact or matter stated in the
document.  The Trustee may, however, in
its discretion make such further inquiry or investigation into such facts or
matters as it may see fit and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the expense
of the Company and shall incur no liability of any kind by reason of such
inquiry or investigation.


 


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(b)           Before the Trustee
acts or refrains from acting (except in connection with an application for
authorization of Notes pursuant to Section 2.02), 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 agents, attorneys or custodians and shall not be responsible for
the misconduct or negligence of any agent, attorney or custodian appointed with
due care.


 


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


 


(e)           The Trustee may
consult with counsel of its own selection, and the written advice or opinion of
counsel 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 permissive
rights of the Trustee to do things enumerated in this Indenture shall not be
construed as a duty unless so specified herein.


 


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


 


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


 


(i)            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 7.03           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. 
However, in the event that the Trustee acquires any conflicting interest
it must eliminate such conflict within 90 days, if this Indenture has been
qualified under the TIA, apply to the SEC to continue as trustee, or
resign.  Any Paying Agent, Registrar,
Conversion Agent or co-registrar may do the same with like rights.  However, the Trustee must comply with Sections
7.10 and 7.11.


 


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Section 7.04           Trustee’s
Disclaimer.  The Trustee
shall not be responsible for and makes no representation as to the validity,
priority or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company’s use of 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 in connection with the sale of the Notes or in the Notes other
than the Trustee’s certificate of authentication.


 


Section 7.05           Notice
of Defaults.  If a
Default or Event of Default occurs and is continuing, the Trustee shall mail to
each Holder notice of the Default or Event of Default within 90 days after it
is known to a Trust Officer or written notice of it is received by the Trustee;
provided, however,
that except in the case of a Default described in Section 6.01(a)(i),
6.01(a)(ii) or 6.01(iv), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Holders.  The second sentence of this Section 7.05
shall be in lieu of the proviso to TIA Section 315(b) and such
proviso is hereby expressly excluded from this Indenture, as permitted by the
TIA.


 


Section 7.06           Reports
by Trustee to Holders.  Within
60 days of each December 31, commencing on December 31, 2009, and for
so long as any Notes remain outstanding, the Trustee shall mail to each Holder
a brief report dated as of December 31 of such year that complies with TIA
Section 313(a), if and to the extent required by such subsection.  The Trustee shall also comply with TIA Section 313(b).  The Trustee will also transmit by mail all
reports as required by TIA 313(c).


 


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


 


Section 7.07           Compensation
and Indemnity.  The Company
shall pay to the Trustee from time to time such compensation as shall be agreed
upon from time to time in writing for its services.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket fees and expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services.  Such expenses shall include
the reasonable compensation, fees and expenses, disbursements and advances of
the Trustee’s agents, counsel, accountants and experts.  The Company shall fully indemnify the Trustee
against any and all loss, liability, claim, damage or expense (including
reasonable attorneys’ fees and expenses) incurred by it in connection with the
acceptance and administration of this trust and the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim (whether asserted by the Company, any Holder or any other Person).  The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company of any claim for which
it may seek indemnity of which a Trust Officer has actually received written
notice shall not relieve the Company of its obligations hereunder except to the
extent such failure shall have materially prejudiced the Company.  The Company shall defend the claim and the
Trustee shall cooperate in the defense. 
If the Trustee is advised by counsel in writing that it may have
available to it defenses which are in conflict with the defenses available to
the Company, then the Trustee may have separate counsel and the


 


40
















 


Company shall pay the reasonable fees and
expenses of such counsel.  The Company
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee’s own willful misconduct or
negligence.  The Company need not pay for
any settlement made by the Trustee without the Company’s consent, such consent
not to be unreasonably withheld.  All
indemnifications and releases from liability granted hereunder to the Trustee
shall extend to its officers, directors, employees, agents, attorneys,
custodians, successors and assigns.


 


(b)           To secure the Company’s payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee other than money or property held in trust to pay
the principal, accrued and unpaid interest (including Additional Interest), if
any, and any Extension Fee or payment of the Fundamental Change Repurchase
Price on particular Notes.


 


(c)           The Company’s payment obligations pursuant to this Section shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture.  In the event that the Trustee
incurs expenses after the occurrence of a Default specified in Section 6.01(viii) or
Section 6.01(ix) with respect to the Company, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law.


 


Section 7.08           Replacement of Trustee.  The Trustee may resign at any time by
notifying the Company in writing at least 30 days prior to the proposed
resignation.  The Holders of a majority
in aggregate principal amount of the Notes then outstanding may remove the
Trustee by notifying the Trustee in writing. 
The Company may remove the Trustee if:


 


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


 


(ii)     the Trustee is
adjudged bankrupt or insolvent;


 


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


 


(iv)    the Trustee
otherwise becomes incapable of acting.


 


(b)           If the Trustee resigns, is removed by the Company or by
the Holders of a majority in aggregate principal amount of the Notes then
outstanding, 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 Company shall promptly appoint a successor Trustee.


 


(c)           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 upon payment of all of its costs and the costs of its agents and
counsel promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.


 


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


 


(e)           If the Trustee, after written request by any Holder, fails
to comply with Section 7.10, such Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.


 


(f)            Notwithstanding the replacement of the Trustee pursuant
to this Section, the Company’s obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.


 


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


 


(b)           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 such 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.


 


Section 7.10           Eligibility;
Disqualification.  The Trustee
shall at all times satisfy the requirements of TIA Section 310(a).  The Trustee shall have (or, in the case of a
corporation included in a bank holding company system, the related bank holding
company shall have) a combined capital and surplus of at least $100,000,000 as
set forth in its (or its related bank holding company’s) most recent published
annual report of condition.  The Trustee
shall comply with TIA Section 310(b), subject to the penultimate paragraph
thereof; provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in TIA Section 310(b)(1) are
met.


 


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


 


Section 7.12           Trustee’s Application
for Instructions from the Company. 
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be
effective.  The Trustee shall not be
liable to the Company for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified


 


42

















 


in such application (which
date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of any omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


ARTICLE 8

DISCHARGE OF INDENTURE


 


Section 8.01           Discharge of Liability
on Notes.  When (a) the
Company delivers to the Registrar all outstanding Notes (other than Notes replaced
pursuant to Section 2.07) for cancellation or (b) all outstanding
Notes have become due and payable, and the Company irrevocably deposits with
the Trustee or delivers to the Holders, as applicable, cash and/or shares of
Common Stock (solely to satisfy outstanding conversions, if applicable)
sufficient to pay all amounts due and owing on all outstanding Notes (other
than Notes replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company with respect to
the outstanding Notes, then this Indenture shall, subject to Section 7.07,
cease to be of further effect with respect to the Notes or any Holders.  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.


 


Section 8.02           Repayment to the
Company.  The Trustee and the
Paying Agent shall promptly turn over to the Company upon 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 payments on the Notes that remains unclaimed for two
years after the date on which such payments became due, and, thereafter,
Holders entitled to the money must look to the Company for payment as general
creditors and all liability of the Trustee or Paying Agent with respect to such
money will cease.


 


ARTICLE 9

AMENDMENTS


 


Section 9.01           Without Consent of
Holders.  The Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder or any other Person so long as such changes, other than those in
clause (b), do not materially and adversely affect the interests of the
Holders:


 


(a)           to cure any ambiguity, omission, defect or inconsistency;


 


(b)           to comply with Article 5;


 


(c)           to provide for uncertificated Notes in addition to or in
place of Certificated Notes;


 


43

















 


(d)           to provide any security for or guarantee of the Notes;


 


(e)           to comply with any requirement of, or to effect or
maintain the qualification of this Indenture under, the TIA;


 


(f)            to provide for the acceptance of appointment of a
successor Trustee;


 


(g)           to add to the Company’s covenants for the benefit of the
Holders or to surrender any right or power conferred upon the Company by this
Indenture;


 


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


 


(i)            to add circumstances under which the Company will pay
additional interest on the Notes;


 


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


 


(k)           to conform the Notes and this Indenture with the
descriptions set forth in the “Description of Notes” section of the Offering
Circular.


 


After an amendment under this Section 9.01
becomes effective, the Company shall mail to Holders a notice briefly
describing such amendment.  The failure
to give such notice to all such Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section.


 


Section 9.02           With Consent of Holders.  With the written consent of the Holders of at
least 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, without the
consent of each Holder affected, an amendment to this Indenture or the Notes
may not:


 


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


 


(b)           reduce the interest rate referred to in Paragraph 1 of the
Notes or reduce the rate of Additional Interest or change the time for payment
of the interest referred to in Paragraph 1 of the Notes or the Additional
Interest;


 


(c)           reduce the amount of the Extension Fee or change the time
for payment of the Extension Fee;


 


(d)           reduce the principal amount of or change the Maturity Date
of any Notes;


 


(e)           reduce the Fundamental Change Repurchase Price for any
Note or change the time at which Holders have the option to require the Company
to repurchase their Notes;


 


(f)            make any payments on the Notes payable in any currency
other than as stated in the Note;


 


44

















 


(g)           impair a Holder’s right to institute suit for the
enforcement of any payment on the Notes;


 


(h)           make any change in the percentage of principal amount of
outstanding Notes necessary to waive compliance with the provisions of Section 6.04
or this Section 9.02;


 


(i)            waive a continuing default or Event of Default regarding
any payment on the Notes (other than any nonpayment of principal of the Notes
which has become due solely by reason of a declaration of acceleration, to the
extent that such declaration of acceleration is duly rescinded in accordance
with this Indenture); or


 


(j)            make any change that adversely affects a Holder’s rights
under Article 3 hereof, under Article 10 hereof or under Paragraphs 5
or 6 of Exhibit A hereto.


 


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


 


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


 


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


 


Section 9.04           Revocation and Effect
of Consents, Waivers and Actions. 
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 supplemental indenture
setting forth the amendment or waiver becomes effective.  After an amendment or waiver becomes
effective, it shall bind every Holder. 
An amendment or waiver becomes effective in accordance with the
terms of the supplemental indenture, which shall become effective upon the
execution thereof by the Trustee.


 


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 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 be
valid or effective for more than 120 days after such record date.


 


Section 9.05           Notation on or Exchange
of Notes.  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
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, to any such


 


45

















 


supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Notes.


 


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


 


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


 


ARTICLE 10

CONVERSIONS


 


Section 10.01         Conversion
Privilege and Consideration.


 


(a)           Subject to and upon compliance with the provisions of this
Indenture, a Holder shall have the right, at such Holder’s option, to convert
its Notes, or any portion of its Notes in principal amount equal to $1,000 or
an integral multiple thereof, at the Conversion Rate in effect on the
Conversion Date for such Notes or portion of Notes, (x) at any time prior
to the Close of Business on the Business Day immediately preceding July 15,
2016, only upon the satisfaction of one or more of the conditions described in
clauses (i) through (iv) below, and (y) on and after July 15,
2016, at any time until the Close of Business on the second Scheduled Trading
Day immediately preceding the Maturity Date, without regard to the conditions
described in clauses (i) through (iv) below:


 


(i)      During any
fiscal quarter (and only during such fiscal quarter) commencing after March 31,
2010 if, for at least 20 Trading Days (whether or not consecutive) during the
30 consecutive Trading Day period ending on the last Trading Day of the
immediately preceding fiscal quarter, the Last Reported Sale Price of the
Common Stock is greater than or equal to 130% of the applicable Conversion
Price on such Trading Day.  If the Notes
become convertible in accordance with this Section 10.01(a)(i), as promptly
as practicable, the Company shall notify the Trustee, the Holders and the
Conversion Agent that the condition to conversion described in this Section 10.01(a)(i) has
been met.


 


(ii)     During the five
consecutive Business Day period after any ten consecutive Trading Day period
(the “Measurement Period”) in which the
Trading Price per $1,000 principal amount of Notes, as determined following a
request by a Holder in accordance with the procedures set forth in this Section 10.01(a)(ii),
for each Trading Day of such Measurement Period is less than 98% of the product
of (x) the Last Reported Sale Price of the Common Stock


 


46

















 


on such
Trading Day and (y) the Conversion Rate on such Trading Day (for any
Trading Day, the “Trading Price Product”).


 


(A)          Unless the Company requests that the Bid Solicitation Agent
determine the Trading Price of the Notes, the Bid Solicitation Agent shall have
no obligation to determine the Trading Price of the Notes, and unless a Holder (x) provides
the Company with reasonable evidence that the Trading Price per $1,000
principal amount of Notes for the next Trading Day will be less than the
Trading Price Product and (y) requests that the Company require the Bid
Solicitation Agent to determine the Trading Price of the Notes on the next
Trading Day, the Company shall have no obligation to request that the Bid
Solicitation Agent determine the Trading Price of the Notes on such Trading
Day.


 


(B)           Upon receipt from a Holder of such evidence and such a
request, the Company shall promptly instruct the Bid Solicitation Agent to
determine (or, if the Company is then acting as Bid Solicitation Agent, the
Company shall determine) the Trading Price of the Notes beginning on the next
Trading Day and on each successive Trading Day until a Trading Day occurs in
which the Trading Price per $1,000 principal amount of Notes for such Trading
Day is greater than or equal to 98% of the Trading Price Product for such
Trading Day.


 


(C)           If, on any Trading Day, the Company is required to
instruct the Bid Solicitation Agent to obtain (or, if the Company is then
acting as Bid Solicitation Agent, the Company is required to obtain) bids but
the Company fails to do so, the Trading Price per $1,000 principal amount of
the Notes for such Trading Day shall be deemed to be less than the Trading
Price Product for such Trading Day


 


(D)          At such time as the condition to conversion described in
this Section 10.01(a)(ii) has been met, the Company will promptly
notify the Holders, the Trustee and the Conversion Agent thereof and of the
Holders’ rights to convert their Notes in accordance with this Section 10.01(a)(ii).  On the first Trading Day thereafter on which
the Trading Price per $1,000 principal amount of Notes for such Trading Day is
greater than or equal to 98% of the Trading Price Product for such Trading Day,
the Company will promptly notify the Holders, the Trustee and the Conversion
Agent of such Trading Price and that the condition to conversion described in
this Section 10.01(a)(ii) is no longer met.


 


(iii)          If the
Company elects to:


 


(A)          issue to all or substantially all holders of its Common
Stock rights, options or warrants that entitle them, for a period of not more
than 60 days after the date of such issuance, to subscribe for or purchase
shares of the Common Stock at a price per share of Common Stock less (or
securities convertible into the Common Stock having a conversion price per
share of the Common Stock less) than the average of the Last Reported Sale
Prices of the Common Stock for the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the date of announcement
of such issuance; or


 


(B)           distribute to all or substantially all holders of the
Common Stock the Company’s assets, debt securities or rights to purchase
securities of the Company, which distribution has a per share value, as
reasonably determined by the Board of Directors, exceeding


 


47

















 


10% of the Last Reported Sale Price of the
Common Stock on the Trading Day immediately preceding the date of announcement
for such distribution,


 


then, in each case, at least 45 Scheduled Trading Days immediately
prior to the Ex-Dividend Date for such issuance or distribution, the Company
shall mail notice to the Holders describing such issuance or distribution, the
Holders’ rights to convert their Notes, the Conversion Rate in effect on the
date the Company mails such notice, any adjustments to the Conversion Rate that
must be made pursuant to Section 10.05 as a result of such issuance or
distribution, and the effective date for any such adjustments.  Once the Company has given such notice, the
Holders may surrender their Notes for conversion at any time until the earlier
of (x) the Close of Business on the Business Day immediately preceding the
Ex-Dividend Date for the issuance or distribution or (y) the Company’s
announcement that such issuance or distribution will not take place


 


(iv)          If (i) a
transaction or event that constitutes a Fundamental Change occurs or (ii) the
Company is a party to a consolidation, merger or binding share exchange, or any
sale or conveyance to another person of all or substantially all of the
property and assets of the Company, and, in each case, pursuant to which the
Common Stock would be converted into cash, securities or other assets, a Holder
may surrender its Notes for conversion at any time from the date on which the
Company delivers notice of such transaction pursuant to Section 3.03 or Section 10.06(c),
as applicable, until the earliest of (x) 35 Trading Days after the
effective date of such transaction, (y) if such transaction constitutes a
Fundamental Change, the related Fundamental Change Repurchase Date, or (z) the
second Scheduled Trading Day immediately preceding the Maturity Date.


 


Section 10.02         Conversion
Procedure.


 


(a)           To convert a Note, a Holder must satisfy the requirements
set forth in Paragraph 6 of the Notes, and the first Business Day on which such
Holder satisfies all of those requirements with respect to a Note will be the
conversion date (the “Conversion Date”)
for such Note.  If the last day on which
a Note may be converted is not a Business Day, the Note may be surrendered on
the immediately following day that is a Business Day.  Upon the conversion of a Note, the Conversion
Agent, as promptly as possible, and in no event later than one Business Day
immediately following the Conversion Date for the Note, will provide the
Company with notice of the conversion of the Note, and the Company, as promptly
as possible, and in no event later than two Business Days after such Conversion
Date, will notify the Trustee, if other than the Conversion Agent, of the
conversion of the Note.


 


(b)           If a Holder converts the entire principal amount of a
Note, such Person will no longer be a Holder of such Note.


 


(c)           If any shares of Common Stock are issuable upon the
conversion of a Note, the Person in whose name the certificate or certificates
for such shares of Common Stock will be registered will become the holder of
record of such shares (i) at the Close of Business on the Conversion Date,
if such conversion was subject to Physical Settlement, and (ii) at the
Close of Business on the last Trading Day of the related Observation Period, if
such conversion was subject to Combination Settlement.


 


48

















 


(d)           If a Holder surrenders a Note for conversion after the
Close of Business on a Record Date and before the Open of Business on the
corresponding Interest Payment Date, the Holder must accompany the Note with an
amount of cash equal to the amount of interest that will be payable on the Note
on the Interest Payment Date; provided, however, that a Holder need not make such a payment (i) if
the Company has specified a Fundamental Change Repurchase Date that is after
the Record Date and on or prior the corresponding Interest Payment Date, (ii) to
the extent of any overdue interest on the Note at the time of conversion, or (iii) if
the Holder surrenders the Note after the Close of Business on the last Record
Date immediately preceding the Maturity Date.


 


(e)           If a Holder surrenders a Note for conversion, the Company
shall pay all stamp taxes and all other duties, if any, which may be imposed by
the United States or any political subdivision thereof or taxing authority
thereof or therein with respect to the issuance of shares of Common Stock, if
any, upon the conversion.  However, if
any tax is due because the Holder requests that any shares of Common Stock
issued upon conversion be issued in a name other than that of the Holder, the
Holder shall pay such tax and the Conversion Agent, until having received a sum
sufficient to pay such tax, may refuse to deliver any certificates representing
shares of Common Stock being issued in a name other than that of the converting
Holder.  Nothing herein shall preclude
any tax withholding required by law or regulations.


 


Section 10.03         Settlement Upon
Conversion.  (a) Except as
provided in Section 10.07(d), if a Holder surrenders a Note for
conversion, the Company will satisfy its obligation to convert the Note (the “Conversion Obligation”) by delivering cash, shares of Common
Stock, or a combination of cash and shares of Common Stock based on the
Conversion Rate then in effect and the Settlement Method that applies to the
Note.


 


(i)      If a “Physical
Settlement” applies to a converted Note, the Company will deliver (x) a
whole number of shares of Common Stock determined in accordance with Section 10.03(c) and
(y) an amount of cash in lieu of fractional shares of Common Stock, if
any, determined in accordance with Section 10.03(f) (a “Physical Settlement”).


 


(ii)     If a “Cash
Settlement” applies to a converted  Note,
the Company will deliver an amount of cash in accordance with Section 10.03(d) (a
“Cash Settlement”).


 


(iii)    If a “Combination
Settlement” applies to a converted Note, the Company will deliver (x) an
amount of cash (the “Cash Amount”)
determined in accordance with Section 10.03(e), (y) a number of
shares of Common Stock determined in accordance with Section 10.03(e), and
(z) an amount of cash in lieu of fractional shares of Common Stock, if
any, determined in accordance with Section 10.03(f) (a “Combination Settlement”).


 


(b)           If a Holder surrenders a Note for conversion:


 


(i)      on or prior to
the Close of Business on July 15, 2016, the Company may elect the
Settlement Method that will apply to such Note by delivering an irrevocable
notice of the Settlement Method to the converting Holder by the Close of
Business on the Business Day immediately following the Conversion Date.  If the Company elects to settle the
conversion of the Note with a Combination Settlement, such notice will also
specify the Cash Amount.  If the


 


49

















 


Company
fails to timely deliver such notice, the Settlement Method for such Note will
be Combination Settlement and the applicable Cash Amount will equal $1,000;


 


(ii)  after the Close of
Business on  July 15, 2016, the
Company may elect the Settlement Method that applies to such Note by delivering,
on or prior to July 15, 2016, to every Holder on such delivery date, an
irrevocable notice describing the single Settlement Method that will apply to
every converted Note having a Conversion Date after July 15, 2016.  If the Company elects to settle such
conversions with a Combination Settlement, such irrevocable notice shall also
specify the related Cash Amount.  If the
Company fails to timely deliver or cause to be delivered such irrevocable
notice, the Settlement Method applicable to all converted Notes having a
Conversion Date after July 15, 2016 will be a Combination Settlement and
the related Cash Amount will equal $1,000.


 


(c)           If the Company elects that a Physical Settlement will
apply to a Note surrendered for conversion by a Holder, the Company will
deliver to such converting Holder (i) a number of shares of Common Stock
equal to the product of (A) the aggregate principal amount of such Note,
divided by $1,000 and (B) the Conversion Rate in effect on the Conversion
Date for such Note; provided, however, that in lieu of any fractional shares of Common
Stock, the Company will deliver to such converting Holder an amount of cash
determined in accordance with Section 10.03(f) below.  The Company shall deliver such shares of
Common Stock, and cash in lieu of fractional shares of Common Stock, on the
third Business Day immediately following the Conversion Date; provided, however, that
if the Conversion Date occurs on or after the last Record Date immediately
preceding the Maturity Date, the Company will deliver such shares of Common
Stock and cash in lieu of fractional shares of Common Stock on the Maturity
Date.


 


(d)           If the Company elects that a Cash Settlement will apply to
a Note surrendered for conversion by a Holder, the Company will pay to such
converting Holder an amount of cash equal to the product of (A) the
aggregate principal amount of such Note, divided by $1,000, and (B) the
sum of the Daily Conversion Values for each of the forty (40) consecutive
Trading Days in the Observation Period for such Conversion Date.  The Company shall pay such amount of cash on
the third Business Day immediately following the last Trading Day of the
Observation Period.


 


(e)           If the Company elects, or is deemed to have elected, that
a Combination Settlement will apply to a Note surrendered for conversion by a
Holder, the Company will deliver to such converting Holder, on the third
Business Day immediately following the last Trading Day of the Observation
Period, for each $1,000 principal amount of such Note, the sum of the Daily
Settlement Amounts for each of the forty (40) consecutive Trading Days in the
Observation Period for the Conversion Date for such Note.


 


(i)      For each of the
forty (40) Trading Days in an Observation Period, the “Daily
Settlement Amount” shall be:


 


(A)          an amount of cash equal to the lesser of (i) the Daily
Cash Amount and (ii) the Daily Conversion Value for such Trading Day; and


 


50
















 


(B)           if the Daily Conversion Value for such Trading Day is
greater than the Daily Cash Amount, a number of shares of Common Stock equal to
the fraction, (A) the numerator of which equals the difference between the
Daily Conversion Value for such Trading Day and the Daily Cash Amount, and (B) the
denominator of which equals the Daily VWAP for the Common Stock for such
Trading Day; provided, however,
that in lieu of any fractional shares of Common Stock, the Company will deliver
to such converting Holder an amount of cash determined in accordance with Section 10.03(f) below.


 


(f)            The Company will not issue fractional shares of Common
Stock upon the conversion of Notes. 
Instead, the Company will pay cash.


 


(i)   If a Physical
Settlement applies to a Note, the amount of cash the Company will pay to the
converting Holder of such Note in lieu of a fractional share of Common Stock
will equal the product of (i) that same fraction and (ii) the Last
Reported Sale Price of the Common Stock on the Conversion Date for such Note.


 


(ii)  If a Combination
Settlement applies to a Note, the amount of cash the Company will pay to the
converting Holder of such Note in lieu of a fractional share of Common Stock
will equal the product of (i) that same fraction and (ii) the Daily
VWAP for the Common Stock on the final Trading Day of the Observation Period
for the Conversion Date of such Note.


 


(g)           If a Holder surrenders more than one Note for conversion
on a single day, the number of shares of Common Stock, if any, and the amount
of cash paid in lieu of fractional shares of Common Stock, if any, shall be
determined based on the total principal amount of Notes surrendered by such
Holder.


 


(h)           Notices.


 


(i)   Within two
Business Days after the relevant Conversion Date, the Company shall deliver to
the Trustee a notice specifying (A) the aggregate principal amount of the
Notes converted and (B) the Settlement Method that will apply to the
converted Notes.


 


(ii)  Whenever a
Physical Settlement applies to any converted Notes, within two Business Days
after the relevant Conversion Date, the Company shall also deliver to the
Trustee a notice specifying (A) the number of shares of Common Stock (or
Units of Reference Property) issuable upon conversion of the converted Notes
and (B) the amount of cash, if any, deliverable in lieu of fractional
shares of Common Stock.


 


(iii) Whenever a Cash
Settlement or a Combination Settlement applies to any converted Notes, within
two Business Days after the last Trading Day of the Observation Period, the
Company shall deliver to the Trustee a notice specifying (A) the amount of
cash deliverable to converting Holders and (B) the number of shares of
Common Stock (or Units of Reference Property), if any, deliverable to
converting Holder.


 


(i)            Solely for the purposes of determining the payments and
deliveries due upon conversion in this Article 10, and notwithstanding the
definition of  “Trading Day” contained in Section 1.01,
“Trading Day” means a day on which (i) there
is no Market Disruption Event and (ii) trading in the Common Stock
generally occurs on NYSE or, if the Common Stock is not then


 


51

















 


listed on NYSE, on the principal other United
States national or regional securities exchange on which the Common Stock is then
listed or, if, on such day, the Common Stock is not then listed on a United
States national or regional securities exchange, on the principal other market
on which the Common Stock is then traded. 
If the Common Stock is not listed or traded, “Trading Day” means a
Business Day.


 


(j)            Solely for the purposes of determining the payments and
deliveries due upon conversion in this Article 10, and notwithstanding the
definition of “Market Disruption Event” contained in Section 1.01, “Market Disruption Event” means (i) a failure by the
primary United States national or regional securities exchange or market on
which the Common Stock is listed or admitted to trading to open for trading
during its regular trading session or (ii) the occurrence or existence
prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for
more than a one half-hour period in the aggregate during regular trading hours
of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the relevant stock exchange or otherwise)
in the Common Stock or in any options, contracts or future contracts relating
to the Common Stock.


 


(k)           If a Holder converts a Note, the Company will not adjust
the Conversion Rate to account for any accrued and unpaid interest on the Note,
and, except to the extent specified in Section 11.01(a), the Company will
not make any cash payment to such Holder for any accrued and unpaid interest on
the Note.  Furthermore, except to the
extent specified in Section 11.01(a), the Company’s delivery to such
Holder of the cash and/or shares of Common Stock into which such Holder’s Note
is convertible shall be deemed to satisfy and discharge in full the Company’s
obligation to pay to such Holder (i) the principal amount of the converted
Note and (ii) any accrued and unpaid interest with respect to the
converted Note.  As a result, except to
the extent specified in Section 11.01(a), any accrued and unpaid interest
with respect to a converted Note shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited.


 


Section 10.04         Company to Provide Stock.  The Company shall, prior to issuance of any
shares of Common Stock under this Article 10, and from time to time as may
be necessary, reserve out of its authorized but unissued shares of Common Stock
a sufficient number of shares of Common Stock to permit the conversion of the
Notes.


 


(a)           Any shares of Common Stock delivered upon conversion of
the Notes shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable, and shall be free from
preemptive rights and shall be free of any lien or adverse claim.  The Company will endeavor promptly to comply
with all federal and state securities laws regulating the offer and delivery of
Common Stock, as applicable and if any, upon conversion of Notes; provided, that the Company shall not be obligated to
register the offer and sale of the Common Stock under the Securities Act.  In addition, the Company will cause any such
shares of Common Stock to be listed on any stock exchange on which the Common
Stock is then listed and will comply with any stock exchange rules applicable
to the Notes and/or the Common Stock (or Reference Property) issuable upon
conversion of the Notes.


 


(b)           If any shares of the Common Stock issued upon conversion
are required to bear a Restricted Stock Legend, such shares will be issued in
physical certificated form, will not be held in book-entry form through the
facilities of the Depositary and shall be treated as “restricted


 


52

















 


securities” (as defined under Rule 144),
and the Company will affix, or will direct its transfer agent to affix the
Restricted Stock Legend that is set forth in Exhibit C upon such shares.


 


Section 10.05         Adjustments to the
Conversion Rate.  The
Conversion Rate will be subject to adjustment upon the occurrence of the events
described below, except that no adjustments will be made to the Conversion Rate
for any Holder that may participate (as a result of holding the Notes, and at
the same time as holders of the Common Stock participate) in any of the events
described below as if such Holder held, without having to convert its Notes, a
number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount
(expressed in thousands) of Notes held by such Holder.


 


(a)           Dividends, Distributions,
Splits and Combinations.


 


(i)      If the Company
pays a dividend or makes a distribution exclusively in shares of the Common
Stock on all or substantially all of the Company’s shares of Common Stock, or
the Company subdivides or combines the Common Stock, the Conversion Rate will
be adjusted based on the following formula:


 


	
  R’  = R x 

  	
   

  	
  OS’

  	
   

  
	
   

  	
  OS

  	
   

  



 


	
   

  	
           where:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  R’  =

  	
   

  	
  the
  Conversion Rate in effect immediately after the Open of Business on the
  Ex-Dividend Date for such dividend or distribution, or immediately after the
  Open of Business on the effective date of such subdivision or combination, as
  the case may be;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  R  =

  	
   

  	
  the
  Conversion Rate in effect immediately prior to the Open of Business on the
  Ex-Dividend Date for such dividend or distribution, or immediately prior to
  the Open of Business on the effective date of such subdivision or
  combination, as the case may be;

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OS’  =

  	
   

  	
  the
  number of shares of Common Stock outstanding immediately after such dividend
  or distribution, or immediately after the effective date of such subdivision
  or combination, as the case may be; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OS  =

  	
   

  	
  the
  number of shares of Common Stock outstanding immediately prior to the Open of
  Business on the Ex-Dividend Date for such dividend or distribution, or
  immediately prior to the Open of Business on the effective date of such
  subdivision or combination, as the case may be.

  



 


Any adjustment made under this clause (a) shall
become effective immediately after the Open of Business on the Ex-Dividend Date
for such dividend or distribution, or immediately after the Open of Business on
the effective date for such share split or combination. If any dividend or
distribution of the type described in this clause (a) is declared but not
so paid or made, or any share split or combination of the type described in
this clause (a) is announced but the outstanding shares of Common Stock
are not so split or combined, as the case may be, then


 


53

















 


the Conversion Rate shall
immediately be readjusted, effective as of the date the Board of Directors
determines not to pay such dividend or distribution, or not to split or combine
the outstanding shares of Common Stock, as the case may be, to the Conversion
Rate that would then be in effect had such dividend, distribution, share split
or share combination not been declared or announced.


 


(b)           Adjustment for Rights
Issue.  If the Company issues
to all or substantially all holders of the Common Stock any rights, options or
warrants that entitle such holders, for a period of not more than 60 days after
the date of issuance, to subscribe for or purchase shares of the Common Stock
at a price per share of the Common Stock less (or securities convertible into
shares of the Common Stock having a conversion price per share of the Common
Stock less) than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the announcement date for such issuance, the
Conversion Rate will be increased based on the following formula:


 


	
  R’  =  R  x

  	
  O + N

  	
   

  
	
  O + ((N x P)/M)

  	
   

  



 


	
   

  	
   

  	
         where:

  
	
   

  	
   

  	
   

  
	
  R’

  	
  =

  	
  Conversion
  Rate in effect immediately after the Open of Business on the Ex-Dividend Date
  for such distribution;

  
	
   

  	
   

  	
   

  
	
  R

  	
  =

  	
  the
  Conversion Rate in effect immediately prior to the Open of Business on the
  Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  O

  	
  =

  	
  the
  number of shares of the Common Stock outstanding as of the Open of Business
  on the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  N

  	
  =

  	
  the
  total number of shares of the Common Stock issuable pursuant to such rights,
  options or warrants;

  
	
   

  	
   

  	
   

  
	
  P

  	
  =

  	
  the
  per-share offering price payable to exercise such rights, options or warrants
  for the additional shares of the Common Stock; and

  
	
   

  	
   

  	
   

  
	
  M

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Common Stock for the 10
  consecutive Trading Day period ending on, and including, the Trading Day
  immediately preceding the announcement date for such distribution.

  



 


Any adjustment made under this clause (b) will
be made successively whenever any such rights, options or warrants are issued
and shall become effective immediately after the Open of Business on the
Ex-Dividend Date for such issuance.  To
the extent that shares of Common Stock are not delivered after the expiration
of such rights, options or warrants, the Conversion Rate shall be readjusted to
the Conversion Rate that would then be in effect had the adjustment made upon
the issuance of such rights, options or warrants been made on the basis of
delivery of only the number of shares of Common Stock actually delivered. If
such rights, options or warrants are not so issued, the Conversion Rate shall
immediately be readjusted to equal the


 


54

















 


Conversion Rate that would
then be in effect had the relevant adjustment pursuant to this clause (b) not
occurred.


 


For purposes of this clause (b), in determining
whether any issued rights, options or warrants entitle the holders of the
Common Stock to subscribe for or purchase shares of the Common Stock at a price
less than the average of the Last Reported Sale Prices of the Common Stock over
the 10 consecutive Trading Day period ending on the Trading Day immediately preceding
the announcement date of such issuance, there shall be taken into account any
consideration that the Company receives for such rights, options or warrants
and any amount payable on exercise thereof, with the value of such
consideration, if other than cash, to be determined by the Board of Directors.


 


(c)           Other Distributions.


 


(i)   If the Company
pays dividends and other distributions to all or substantially all holders of
the Common Stock consisting of the Company’s debt, securities or assets or
certain rights to purchase the Company’s securities (except for (A) dividends
or distributions (including subdivisions) for which an adjustment is made
pursuant to clause (a) above, (B) rights, options or warrants for
which an adjustment is made pursuant to clause (b) above, (C) dividends
and other distributions paid exclusively in cash for which an adjustment is
made pursuant to clause (d) below, and (D) any Spin-Off for which an
adjustment is made pursuant to clause (c)(ii) below), the Conversion Rate
will be increased based on the following formula:


 


	
  R’  =  R  x

  	
  M

  	
   

  
	
  M – F

  	
   

  



 


where:


 


	
  R’

  	
  =

  	
  the
  Conversion Rate in effect immediately after the Open of Business on the
  Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  R

  	
  =

  	
  the
  Conversion Rate in effect immediately prior to the Open of Business on the
  Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  M

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Common Stock for the 10
  consecutive Trading Day period ending on, and including, the Trading Day
  immediately preceding the Ex-Dividend Date for such distribution; and

  
	
   

  	
   

  	
   

  
	
  F

  	
  =

  	
  the
  fair market value, as determined by the Board of Directors, of the portion of
  such debt, securities, assets or certain rights to purchase securities of the
  Company distributed in respect of each outstanding share of the Common Stock
  immediately prior to the Open of Business on the Ex-Dividend Date for such
  distribution.

  



 


Notwithstanding the foregoing, if “F” (as defined
above) is greater than or equal to “M” (as defined above), in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion, in addition to the cash, shares
of Common Stock or combination of cash and shares of Common Stock otherwise
issuable upon


 


55

















 


conversion, for each $1,000
principal amount of Notes converted, the amount and kind of debt, securities,
assets or certain rights to purchase securities of the Company that such Holder
would have received if such Holder had owned, on the Record Date for such
distribution, a number of shares of Common Stock equal to the Conversion Rate
in effect immediately prior to the record date for such dividend or
distribution.  In addition, at least 45
Scheduled Trading Days before making any distribution described in this clause
(c)(i) in which “F” (as defined above) is reasonably likely to be greater
than or equal to “M” (as defined above), the Company shall deliver to Holders
notice that the Company intends to make such a distribution.


 


Any adjustment made under this sub-clause (c)(i) will
become effective immediately after the Open of Business on the Ex-Dividend Date
for such distribution. If such distribution is not so paid or made, the
Conversion Rate shall be readjusted to be the Conversion Rate that would then
be in effect had such dividend or distribution not been declared.


 


(ii)  If the Company
pays dividends and other distributions to all or substantially all holders of
the Common Stock consisting of shares of Capital Stock of any class or series,
or similar equity interest, of or relating to a subsidiary or other business
unit of the Company, where such Capital Stock or similar equity interest is
listed or quoted (or will be listed or quoted upon consummation of the
spin-off) on a national securities exchange or reasonably comparable non-U.S.
equivalent (a “Spin-Off”), the Conversion Rate
will be increased based on the following formula:


 


	
  R’  =  R  x

  	
  F + MP

  	
   

  
	
  MP

  	
   

  



 


where:


 


	
  R’

  	
  =

  	
  the
  Conversion Rate in effect immediately after the Open of Business on the
  effective date for the Spin-off;

  
	
   

  	
   

  	
   

  
	
  R

  	
  =

  	
  the
  Conversion Rate in effect immediately prior to the Close of Business on the
  effective date for the Spin-off;

  
	
   

  	
   

  	
   

  
	
  F

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Capital Stock or similar
  equity interest distributed to holders of one share of the Common Stock over
  the 10 consecutive Trading Day period immediately following, and including,
  the effective date for the Spin-off (such period, the “Valuation
  Period”); and

  
	
   

  	
   

  	
   

  
	
  MP

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Common Stock over the
  Valuation Period.

  



 


The adjustment to the Conversion Rate under this
sub-clause (c)(ii) will be made immediately after the Close of Business on
the last day of the Valuation Period, but will be given effect as of the Open
of Business on the Ex-Dividend Date for the Spin-Off.


 


If, for any conversion for which a Combination
Settlement or a Cash Settlement applies, the effective date for the Spin-Off is
less than 10 Trading Days prior to, and including, the last Trading Day of the
Observation Period for the Conversion Date for such conversion, references


 


56

















 


within this sub-clause (c)(ii) to
10 Trading Days shall be deemed replaced, for the purposes of calculating the
affected Daily Conversion Amounts in respect of that conversion, with such
lesser number of Trading Days as have elapsed from, and including, the
effective date for the Spin-Off to, and including, the last Trading Day of such
Observation Period.  For the purposes of
determining the applicable Conversion Rate on any Conversion Date for which a
Physical Settlement applies that occurs during the 10 Trading Day period
commencing on the effective date for any Spin-Off, references within this
sub-clause (c)(ii) related to “Spin-Offs” to 10 Trading Days shall be
deemed replaced with such lesser number of Trading Days as have elapsed from,
and including, the effective date for such Spin-Off to, but excluding, such
Conversion Date.


 


(d)           Adjustment for Cash
Distributions.  If the Company
pays cash dividends or distributions to all or substantially all holders of the
Common Stock, the Conversion Rate will be increased based on the following
formula:


 


	
  R’  =  R  x

  	
  SP

  	
   

  
	
  SP – C

  	
   

  



 


where:


 


	
  R’

  	
  =

  	
  the
  Conversion Rate in effect immediately after the Open of Business on the
  Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  R

  	
  =

  	
  the
  Conversion Rate in effect immediately prior to the Open of Business on the
  Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  SP

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Common Stock over the ten
  consecutive Trading Day period ending on, and including, the Trading Day
  immediately preceding the Ex-Dividend Date for such distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

  	
  the
  amount in cash per share the Company distributes to holders of the Common
  Stock in such distribution.

  



 


Notwithstanding the foregoing, if “C” (as defined
above) is greater than or equal to “SP” (as defined above), in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion, in addition to the cash,
shares of Common Stock or combination of cash and shares of Common Stock
otherwise issuable upon conversion, for each $1,000 principal amount of Notes
converted, the amount of cash that such Holder would have received if such
Holder had owned, on the Record Date for such distribution, a number of shares
of Common Stock equal to the Conversion Rate in effect immediately prior to the
Record Date for such dividend or distribution. 
In addition, at least 45 Scheduled Trading Days before making any
distribution described in this clause (d) in which “C” (as defined above)
is reasonably likely to be greater than or equal to “SP” (as defined above),
the Company shall deliver to Holders notice that the Company intends to make
such a distribution.


 


Such adjustment shall become effective immediately
after the Open of Business on the Ex-Dividend Date for such dividend or
distribution.  If such dividend or
distribution is not so


 


57

















 


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


 


(e)           Adjustment for Tender
Offers or Exchange Offers.  If
(i) the Company or any of its subsidiaries makes a payment to holders of
the Common Stock in respect of a tender offer or exchange offer by the Company
or any of its subsidiaries, other than a tender offer solely to holders of
fewer than 100 shares of Common Stock, and (ii) the cash and value of any
other consideration included in the payment per share of Common Stock exceeds
the average of the Last Reported Sale Prices of the Common Stock over the 10
consecutive Trading Day period commencing on, and including, the Trading Day
immediately following the last date on which tenders or exchanges may be made
pursuant to such tender offer or exchange offer (the “Expiration
Date”), the Conversion Rate will be increased based on the following
formula:


 


	
  R’  =  R  x

  	
  F + (SP x OS’)

  	
   

  
	
  OS x SP

  	
   

  



 


where:


 


	
  R’

  	
  =

  	
  the
  Conversion Rate in effect immediately after the Open of Business on the
  Trading Day immediately following the Expiration Date;

  
	
   

  	
   

  	
   

  
	
  R

  	
  =

  	
  the
  Conversion Rate in effect as of the Open of Business on the Trading Day
  immediately following the Expiration Date;

  
	
   

  	
   

  	
   

  
	
  F

  	
  =

  	
  the
  fair market value, as determined by the Board of Directors, of the aggregate
  consideration payable in such tender offer or exchange offer (up to any
  maximum amount specified in the terms of the tender or exchange offer) for
  all shares of Common Stock that the Company or its subsidiaries purchase in
  such tender offer or exchange offer, such fair market value to be measured as
  of the expiration time of the tender offer or exchange offer (the “Expiration Time”);

  
	
   

  	
   

  	
   

  
	
  OS’

  	
  =

  	
  the
  number of shares of Common Stock outstanding immediately after the Expiration
  Time (after giving effect to the purchase of shares of such series pursuant
  to such tender offer or exchange offer);

  
	
   

  	
   

  	
   

  
	
  OS

  	
  =

  	
  the
  number of shares of Common Stock outstanding immediately prior to the
  Expiration Time (prior to giving effect to the purchase of shares of Common
  Stock pursuant to such tender offer or exchange offer); and

  
	
   

  	
   

  	
   

  
	
  SP

  	
  =

  	
  the
  average of the Last Reported Sale Prices of the Common Stock over the 10
  consecutive Trading Day period commencing on, and including, the Trading Day
  following the Expiration Date.

  



 


The adjustment to the Conversion Rate under this
clause (e) will be made immediately after the Open of Business on the
Trading Day immediately following the Expiration Date, but will be given effect
at the Open of Business on the Trading Day following the Expiration Date.


 


If the Trading Day next succeeding the Expiration
Date is less than 10 Trading Days prior to, and including, the end of the
Observation Period in respect of any conversion for which


 


58

















 


a Combination Settlement or
Cash Settlement applies, references within this clause (e) to 10 Trading
Days shall be deemed replaced, for purposes of calculating the affected Daily
Conversion Amounts in respect of that conversion, with such lesser number of
Trading Days as have elapsed from, and including, the Trading Day next
succeeding the Expiration Date to, and including, the last Trading Day of such
Observation Period.  For purposes of
determining the applicable Conversion Rate, in respect of any conversion for which
a Physical Settlement applies during the 10 Trading Days commencing on the
Trading Day next succeeding the Expiration Date, references within this clause (e) to
10 Trading Days shall be deemed replaced with such lesser number of Trading
Days as have elapsed from, and including, the Trading Day next succeeding the
Expiration Date to, but excluding, the relevant Conversion Date.


 


(f)            Holder Participation in
Adjustment Events. 
Notwithstanding the foregoing, if pursuant to this Section 10.05,
an adjustment to the Conversion Rate becomes effective on any Ex-Dividend Date
or Effective Date and a Holder that has converted its Notes would (i) receive
shares of Common Stock based on an adjusted Conversion Rate and (ii) be a
record holder of the shares of Common Stock on the Record Date for the
dividend, distribution or event giving rise to the adjustment pursuant to this Section 10.05,
then, in lieu or receiving shares of Common Stock based on an adjusted
Conversion Rate, such Holder will participate in the related dividend,
distribution or other event giving rise to such adjustment and receive a number
of shares of Common Stock, if any, upon conversion based on an unadjusted
Conversion Rate.


 


(g)           Adjustments Not Yet
Effective.


 


(i)      If a Physical
Settlement applies to a Note,


 


(A)          and, as of the Conversion Date for such Note, any event
that requires an adjustment to the Conversion Rate pursuant to Sections
10.05(a), (b), (c), (d) or (e) has occurred and has not yet resulted
in an adjustment to the Conversion Rate, and


 


(B)           the shares of Common Stock that the Holder will receive in
satisfaction of the Company’s conversion obligation with respect to such Note
will not be entitled to participate in the distribution or transaction giving
rise to such adjustment (because such shares were not held by such holder on
the record date corresponding to such distribution or transaction or
otherwise), then the Company will adjust the number of shares of Common Stock
deliverable as part of its Conversion Obligation with respect to such Note to
reflect the relevant distribution or transaction.


 


(ii)     If a
Combination Settlement applies to a Note, and, on any Trading Day during the
Observation Period for such the Conversion Date for such Note:


 


(A)          shares of Common Stock are deliverable as part of
the Daily Settlement Amount for such Trading Day;


 


(B)           any event that requires an adjustment to the Conversion
Rate pursuant to Sections 10.05(a), (b), (c), (d) or (e) has occurred
but has not yet resulted in an adjustment to the Conversion Rate; and


 


59

















 


(C)           the shares of Common Stock that the Holder shall receive
as part of the Daily Settlement Amount for such Trading Day will not be
entitled to participate in the distribution or transaction requiring the
adjustment (because such shares were not held by such Holder on the record date
corresponding to such distribution or transaction or otherwise), then the
Company will adjust the number of shares of Common Stock deliverable as part of
its Conversion Obligation with respect to such Trading Day to reflect the
relevant distribution or transaction.


 


(h)           Averaging of Prices.  Whenever any provision of this Indenture
requires the calculation of Last Reported Sale Prices, Daily VWAPs or any
functions thereof over a span of multiple days, the Board of Directors will
make appropriate adjustments to such prices, functions of such prices, the
Conversion Rate, or the Conversion Obligation to account for any adjustment to
the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate in which the Ex-Dividend Date of the event
occurs, at any time during the period over which such average is to be
calculated.


 


(i)            Rights Plans.  If the Company adopts a stockholder rights plan
and, on the Conversion Date for a Note, (i) such plan is in effect and (ii) the
rights provided for in such plan have not yet separated from the Common Stock,
each share of Common Stock issued upon the conversion of Notes on such
Conversion Date (x) shall be entitled to receive the number of rights, if
any, associated with one share of Common Stock under such stockholder rights
plan, and (y) shall, if issued in certificated form, bear such legends, if
any, as may be required under such stockholder rights plan; provided, however, that
if prior to the Conversion Date for a Note, the rights separate from the Common
Stock in accordance with the provisions of the applicable stockholder rights
plan, a converting Holder shall not be entitled to receive such rights upon
conversion, and on the date of such separation, the Conversion Rate will be
adjusted in accordance with Section 10.05(c); provided,
further, that such adjustment shall be
subject to readjustment upon the expiration, termination of redemption of such
separated rights.


 


(j)            Deferral of Adjustments.  The Company need not adjust the Conversion
Rate unless such adjustment would require an increase or decrease in the
Conversion Rate by at least 1%; provided that,
if an adjustment to the Conversion Rate is not made because the adjustment does
not change the Conversion Rate by at least 1% (after giving effect to any other
adjustment not previously made but carried forward pursuant to this sentence),
then all of the adjustments that have not been made and that are not made will
be carried forward and taken into account in the first future adjustment that
would result in an adjustment of at least 1% to the Conversion Rate; provided, further, that
notwithstanding the foregoing, (i) all such carried forward adjustments
not previously made that would apply to a Note shall be made on the earlier of (x) the
Conversion Date for such Note and (y) the 42nd Scheduled Trading Day
immediately preceding the Maturity Date, and (ii) after the 42nd Scheduled
Trading Day immediately preceding the Maturity Date, the Company shall not
defer any adjustments to the Conversion Rate pursuant to this Section 10.05(j).


 


(k)           Simultaneous and
Successive Adjustments.  In
the event that this Article 10 requires adjustments to the Conversion Rate
under more than one of Sections 10.05(a), (b), (c) or (d), and the
Ex-Dividend Dates (or, in the case of a Spin-off, the effective date of such a
Spin-off) for the distributions giving rise to such adjustments shall occur on
the same date, then such


 


60
















 


adjustments shall be made,
without duplication, by applying, first, the provisions of Section 10.05(a),
second, the provisions of Section 10.05(c), third, the provisions of Section 10.05(d) and,
fourth, the provisions of Section 10.05(b).


 


After an adjustment to the
Conversion Rate under this Article 10, any subsequent event requiring an
adjustment under this Article 10 shall cause an adjustment to the
Conversion Rate as so adjusted, without duplication.


 


(l)                                     Voluntary
Increases.  From time
to time, the Company may (but is not required to) increase the Conversion Rate
by any amount for a period of at least 20 Business Days if (i) the Board
of Directors determines that such increase is in the best interest of the
Company, (ii) such increase is irrevocable during such period and (iii) if
any shares of the Company’s Capital Stock are listed on New York Stock
Exchange, such increase does not violate any applicable New York Stock Exchange
rules.  In addition, the Company may (but
is not required to) increase the Conversion Rate to avoid the taxation of any
subdivisions of the Common Stock, dividends on the Common Stock, rights
distributions to purchase stock or other securities to holders of the Common
Stock, or distributions to holders of the Common Stock of securities
convertible into or exchangeable for shares of the Common Stock.


 


(m)                               No
Other Adjustments.  Except as
specifically described in this Section 10.05, the Conversion Rate will not
be subject to adjustment as a result of any issuance of shares of Common Stock,
securities convertible into or exchangeable for shares of Common Stock or
rights, options or warrants to purchase shares of Common Stock or securities
convertible into or exchangeable for shares of Common Stock.  In addition, except in the case of a reverse
share split or a share combination, the Company will not adjust the Conversion
Rate pursuant to the formulas set forth in clauses (a) through (e) of
this Section 10.05 if such adjustment would reduce the Conversion
Rate.  Without limiting the foregoing,
the Conversion Rate will not be adjusted upon the following events:


 


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


 


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


 


(iii)            ordinary
course of business Capital Stock repurchases including structured or derivative
transactions,


 


(iv)           pursuant
to a Capital Stock repurchase program approved by the Board of Directors (but,
for the avoidance of doubt, excluding transactions described in clause (e) above);


 


(v)              any
accrued and unpaid interest (including any Additional Interest); or


 


61

















 


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


 


(n)                                 Notice
of Adjustments.  Whenever
the Conversion Rate an event occurs that will require an adjustment to the
Conversion Rate pursuant to this Section 10.05, the Company shall, at
least 45 Scheduled Trading Days prior to the anticipated effective date of such
adjustment, mail to the Holders a notice of such adjustment describing the
event triggering the adjustment, the effective date of the adjustment and the
adjusted Conversion Rate; provided, however, that if on such date, the Company does not have
knowledge of such event or the adjusted Conversion Rate cannot be calculated,
the Company shall deliver such notice promptly upon obtaining knowledge of such
event or information sufficient to make such calculation, as the case may be,
and in no event later than the effective date of such adjustment.  On or before the day on which the Company is
required to deliver notice to the Holders pursuant to this Section 10.05(n),
the Company shall file such notice, together with an Officers’ Certificate
briefly stating the facts triggering such adjustment and the Company’s manner
of computing such adjustment, with the Conversion Agent and the Trustee.  To the Trustee and the Conversion Agent,
receipt of such notice and of such Officers’ Certificate shall be conclusive
evidence that the adjustment is correct and in effect on the effective date
stated in such notice.  Neither the
Trustee nor the Conversion Agent shall be under any duty or responsibility with
respect to any such notice of adjustment except to exhibit the same to any
Holder desiring inspection thereof.


 


Section 10.06                          Effect of Reclassification, Consolidation, Merger or Sale.


 


(a)                                  Upon the
occurrence of


 


(i)                  any
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a split, subdivision or combination for which an adjustment is provided
pursuant to Section 10.05);


 


(ii)               any
transaction described in clause (2) of the definition of Fundamental
Change provided in Section 1.01;


 


(iii)            a
consolidation, merger, combination or binding share exchange; or


 


(iv)           any
sale or conveyance to another person of all or substantially all of the
property and assets of the Company,


 


and, in
each case, as a result of which holders of the outstanding Common Stock are
entitled to receive cash, securities or other property with respect to or in
exchange for their shares of Common Stock (any such event, a “Merger Event”), then:


 


(A)                              on or prior to
the effective date of such Merger Event, the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing for the
conversion and settlement of the Notes as set forth in this Indenture and for
adjustments to the Conversion Rate that shall be as nearly equivalent as may be



 


62

















 


practicable to the adjustments provided for
in this Article 10.  If, in the case
of any Merger Event, the Reference Property includes shares of stock or other
securities and assets of a corporation other than the successor or purchasing
corporation, as the case may be, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders as the Board of Directors shall
reasonably consider necessary by reason of the foregoing, including to the
extent required by the Board of Directors and practicable the provisions
providing for the repurchase rights set forth in Article 3 herein;


 


(B)                                subject to the
provisions of Section 10.01 and Section 10.07, on the effective date
of such Merger Event, the right of Holders to convert each $1,000 principal
amount of Notes into shares of Common Stock shall be changed into a right to
convert each $1,000 principal amount of Notes into the kind and amount of cash,
securities or other property that the a holder of a number of shares of the
Common Stock equal to the Conversion Rate in effect immediately prior to the
effect date for the Merger Event would have been entitled to receive in
exchange for such number of shares of Common Stock in such Merger Event (for
any Merger Event, such property, “Reference Property,”
and the amount and type of Reference Property that a holder of one share of the
Common Stock immediately prior to the effective date of such Merger Event would
have been entitled to receive based on the Weighted Average Consideration, in
such Merger Event, a “Unit of Reference Property”),
so that on after the effective date of such Merger Event,


 


(1)                                  references in Section 10.01 to “the Last Reported Sale
Price of the Common Stock” shall be deemed at and after the effective time of
such Merger Event to be references to “the Last Reported Sale Price of a Unit
of Reference Property”;


 


(2)                                  the Company may still exercise its rights under Section 10.03
to elect the Settlement Method that will apply to any conversion;


 


(3)                                  with respect to each $1,000 principal amount of Notes
surrendered for conversion, the Company’s Conversion Obligation shall be
settled under Section 10.03 as follows:


 


(I)                                    if a Physical
Settlement applies, the Company shall deliver a number of Units of Reference
Property to a converting Holder equal to the number of shares of Common Stock
that the Company would otherwise be obligated to deliver deliverable under Section 10.03(c) and
an amount of cash in lieu of fractional shares of Common Stock determined in
accordance with Section 10.03(f), except using the “Last Reported Sale
Price of a Unit of Reference Property” on the applicable Conversion Date;


 


(II)                                if a Cash
Settlement applies, the Company shall deliver an amount of cash determined in
accordance with Section 10.03(d), except that the Daily VWAP shall be
based on the “Daily VWAP of a Unit of Reference Property” instead of the Daily
VWAP for the Common Stock;


 


63

















 


(III)                            if a
Combination Settlement applies, the Company shall deliver (i) an amount of
cash determined in accordance with Section 10.03(e), except that the Daily
VWAP shall be based on the “Daily VWAP of a Unit of Reference Property” instead
of the Daily VWAP for the Common Stock, (ii) in lieu of the shares of
Common Stock otherwise deliverable under Section 10.03(e), a number of
Units of Reference Property equal to the number of shares of the Common Stock
that the Company would otherwise be obligated to deliver under Section 10.03(e),
and (iii) and an amount of cash in lieu of fractional shares of Common
Stock determined in accordance with Section 10.03(f), except using the “Daily
VWAP of a Unit of Reference Property” on the last Trading Day of the
Observation Period for the applicable Conversion Date;


 


(C) For the purposes of
this Section 10.06, the “Weighted Average
Consideration” for a Merger Event shall be deemed to be the weighted
per share of Common Stock average of the types and amounts of consideration
received by the holders of the Common Stock that affirmatively make an election
receive in such Merger Event.


 


(b)                                 As soon as
practicable after it determines the Weighted Average Consideration, the Company
shall notify the Holders and the Trustee of the Weighted Average Consideration.


 


(c)                                  At least 45
Scheduled Trading days prior to the effective date of such Merger Event, the
Company shall deliver notice to the Trustee, the Conversion Agent and the
Holders stating:


 


(1)                                  a brief
description of such Merger Event;


 


(2)                                  that one of the
conditions to conversion included in Section 10.01 of the Indenture has
been satisfied and that Holders’ Notes are convertible;


 


(3)                                  the Conversion
Rate in effect on the date the Company delivers such notice;


 


(4)                                  the anticipated
effective date for the Merger Event;


 


(5)                                  that the Notes
will be convertible into Reference Property in lieu of shares of Common Stock
on and after the effective date for the Merger Event; and


 


(6)composition of a Unit of Reference Property for such Merger Event;


 


provided, however,  that if the
Company does not have knowledge of the Merger Event on such date, the Company
will deliver such notice to the Trustee and the Holders as promptly as
practicable upon obtaining knowledge of such Merger Event and in no event later
than three Business Days immediately after the effective date of such Merger
Event.


 


(d)                                 On the date
that the Company delivers a notice to the Trustee and to the Holders, the
Company shall also issue a press release containing the same information, and
make such press release available on the Company’s website.


 


64

















 


(e)                                  In the event
the Company executes a supplemental indenture pursuant to this Section 10.06,
as promptly as practicable, the Company shall file with the Trustee an Officers’
Certificate briefly describing such Merger Event, the composition of a Unit of
Reference Property for such Merger Event, any adjustment to be made with
respect thereto and that all conditions precedent to such Merger Event under
this Indenture have been complied with. 
Any failure to deliver such Officers’ Certificate shall not affect the
legality or validity of such supplemental indenture.


 


Section 10.07                          Adjustment to Conversion Rate Upon Certain Transactions.


 


(a)                                  If a
Fundamental Change occurs after the Issue Date and a Holder converts a Note in
connection with such Fundamental Change (any conversion during the period
beginning on, and including, the later of the effective date of a Fundamental
Change (the “Fundamental Change Effective Date”)
and the Fundamental Change Notice Date and until, and including, the earlier of
the Fundamental Change Repurchase Date corresponding to such Fundamental Change
and the Close of Business on the second Scheduled Trading Day immediately
preceding the Maturity Date, will be deemed to be “in connection with” such
Fundamental Change, regardless of any other condition to conversion), the
Company will, in the circumstances described in this Section 10.07,
increase the Conversion Rate for such Note by the number of additional shares
Common Stock (the “Additional Shares”)
described in this Section 10.07.


 


(b)                                 The numbers of
Additional Shares by which the Conversion Rate will be increased if a Holder
converts a Note in connection with a Fundamental Change will be determined by
reference to the table below, based on the Fundamental Change Effective Date
and the price paid per share of the Common Stock in such Fundamental Change.


 


(c)                                  The following
table sets forth hypothetical Fundamental Change Effective Dates, Share Prices
and the number of additional shares of Common Stock per $1,000 principal amount
of Notes by which the Conversion Rate will be increased for a Holder that
converts a Note in connection with a Fundamental Change having such Fundamental
Change Effective Date and Share Price.  
The Share Prices set forth in the first row of the tables (i.e., the
column headers) will be adjusted on each date on which the Conversion Rate is
adjusted pursuant to Section 10.05. 
The adjusted Share Prices will equal the Share Prices in effect
immediately prior to such adjustment, multiplied by a fraction, the numerator
of which is the Conversion Rate in effect immediately prior to the adjustment
giving rise to the share price adjustment, and the denominator of which is the
Conversion Rate in effect immediately after the adjustment.  The numbers of Additional Shares set forth in
the table below will be adjusted in the same manner and at the same time as the
Conversion Rate.


 


65

















 


Share
Price


 


	
  Fundamental

  Change

  Effective

  Date

  	
   

  	
  $ 12.12

  	
   

  	
  $ 15.00

  	
   

  	
  $ 20.00

  	
   

  	
  $ 25.00

  	
   

  	
  $ 30.00

  	
   

  	
  $ 35.00

  	
   

  	
  $ 40.00

  	
   

  	
  $ 50.00

  	
   

  	
  $ 60.00

  	
   

  	
  $ 70.00

  	
   

  	
  $ 80.00

  	
   

  	
  $ 90.00

  	
   

  	
  $ 100.00

  	
   

  
	
  December 21, 2009

  	
   

  	
  15.4284

  	
   

  	
  14.9853

  	
   

  	
  9.9916

  	
   

  	
  7.4293

  	
   

  	
  5.8704

  	
   

  	
  4.8135

  	
   

  	
  4.0447

  	
   

  	
  2.9947

  	
   

  	
  2.3083

  	
   

  	
  1.8247

  	
   

  	
  1.4671

  	
   

  	
  1.1933

  	
   

  	
  0.9783

  	
   

  
	
  January 15, 2010

  	
   

  	
  15.4284

  	
   

  	
  14.8634

  	
   

  	
  9.8981

  	
   

  	
  7.3563

  	
   

  	
  5.8123

  	
   

  	
  4.7656

  	
   

  	
  4.0049

  	
   

  	
  2.9655

  	
   

  	
  2.2859

  	
   

  	
  1.8071

  	
   

  	
  1.4528

  	
   

  	
  1.1815

  	
   

  	
  0.9684

  	
   

  
	
  January 15, 2011

  	
   

  	
  15.4284

  	
   

  	
  13.3619

  	
   

  	
  8.7300

  	
   

  	
  6.4434

  	
   

  	
  5.0800

  	
   

  	
  4.1640

  	
   

  	
  3.5002

  	
   

  	
  2.5930

  	
   

  	
  1.9985

  	
   

  	
  1.5784

  	
   

  	
  1.2668

  	
   

  	
  1.0276

  	
   

  	
  0.8393

  	
   

  
	
  January 15, 2012

  	
   

  	
  15.4284

  	
   

  	
  11.9534

  	
   

  	
  7.5829

  	
   

  	
  5.5421

  	
   

  	
  4.3577

  	
   

  	
  3.5711

  	
   

  	
  3.0029

  	
   

  	
  2.2266

  	
   

  	
  1.7166

  	
   

  	
  1.3551

  	
   

  	
  1.0863

  	
   

  	
  0.8793

  	
   

  	
  0.7161

  	
   

  
	
  January 15, 2013

  	
   

  	
  15.4284

  	
   

  	
  10.6134

  	
   

  	
  6.4346

  	
   

  	
  4.6328

  	
   

  	
  3.6326

  	
   

  	
  2.9788

  	
   

  	
  2.5084

  	
   

  	
  1.8652

  	
   

  	
  1.4413

  	
   

  	
  1.1399

  	
   

  	
  0.9149

  	
   

  	
  0.7410

  	
   

  	
  0.6033

  	
   

  
	
  January 15, 2014

  	
   

  	
  15.1980

  	
   

  	
  9.2072

  	
   

  	
  5.1637

  	
   

  	
  3.6308

  	
   

  	
  2.8339

  	
   

  	
  2.3237

  	
   

  	
  1.9575

  	
   

  	
  1.4554

  	
   

  	
  1.1231

  	
   

  	
  0.8862

  	
   

  	
  0.7088

  	
   

  	
  0.5712

  	
   

  	
  0.4618

  	
   

  
	
  January 15, 2015

  	
   

  	
  14.3638

  	
   

  	
  7.6256

  	
   

  	
  3.7119

  	
   

  	
  2.5250

  	
   

  	
  1.9704

  	
   

  	
  1.6207

  	
   

  	
  1.3678

  	
   

  	
  1.0178

  	
   

  	
  0.7852

  	
   

  	
  0.6190

  	
   

  	
  0.4945

  	
   

  	
  0.3976

  	
   

  	
  0.3202

  	
   

  
	
  January 15, 2016

  	
   

  	
  13.7815

  	
   

  	
  5.5387

  	
   

  	
  1.9287

  	
   

  	
  1.2765

  	
   

  	
  1.0088

  	
   

  	
  0.8319

  	
   

  	
  0.7004

  	
   

  	
  0.5165

  	
   

  	
  0.3938

  	
   

  	
  0.3062

  	
   

  	
  0.2405

  	
   

  	
  0.1894

  	
   

  	
  0.1486

  	
   

  
	
  January 15, 2017

  	
   

  	
  15.4284

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


If the exact Share Price and Fundamental
Change Effective Date for a Fundamental Change are not set forth in the tables
above, then


 


(A)                              if the Share
Price is between two prices listed in the table or the Fundamental Change
Effective Date is between two listed dates in the table, then the number of
Additional Shares by which the Conversion Rate will be increased for a Holder
that converts its Notes in connection with such Fundamental Change will be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower listed prices in the table and the
two Fundamental Change Effective Dates in the table, based on a 365-day year;


 


(B)                                if the Share
Price is greater than $100.00, subject to adjustment in the same manner and at
the same time as the Share Prices listed in the table, the Conversion Rate will
not be adjusted; and


 


(C)                                if the Share
Price is less than $12.12, subject to adjustment in the same manner and at the
same time as the Share Prices listed in the table, the Conversion Rate will not
be adjusted.


 


(ii)               Notwithstanding the foregoing, in no event will the total
number of shares of Common Stock issuable upon the conversion of each $1,000
principal amount of Notes exceed 82.5083, subject to adjustment in the same
manner and at the same time as the Conversion Rate under Section 10.05


 


(d)                                    If a Holder
converts a Note in connection with a Fundamental Change, the Company will
settle such conversion of such Note in accordance with Section 10.03; provided, however, that
notwithstanding anything to the contrary in Section 10.03, if a Holder
converts a


 


66

















 


Note in connection with a
Fundamental Change described in clause (2) of the definition thereof in
which the holders of the Common Stock receive only cash in consideration for
their shares of Common Stock, the Company will settle such conversion by
delivering to such Holder, on the third Business Day immediately following the
Conversion Date for such Note, an amount of cash, for each $1,000 principal
amount of such Note, equal to the product of (i) the Conversion Rate on
the Conversion Date for such Note (including any Additional Shares added to
such Conversion Rate pursuant to this Section 10.07) and (ii) the
Share Price.


 


Section 10.08                          Miscellaneous.


 


(a)                                  Company
Determination Final.  Any
determination and/or calculation that the Company or the Board of Directors
must make pursuant to this Article 10 is conclusive, absent manifest
error.


 


(b)                                 Trustee’s
Disclaimer.  The Trustee
has no duty to determine when an adjustment under this Article 10 should
be made, how it should be made or what it should be.  The Trustee shall not be accountable for and
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Notes.  The
Trustee shall not be responsible for the Company’s failure to comply with this Article 10.  Each Conversion Agent shall have the same
protection under this Section 10.08 as the Trustee.


 


ARTICLE 11


PAYMENT OF INTEREST


 


Section 11.01                          Payment
of Interest.  The Company
shall pay interest on the Notes at a rate of 4.00% per annum, payable
semi-annually in arrears on January 15 and July 15 of each year
(each, an “Interest Payment Date”) or, if any
such day is not a Business Day, the immediately following Business Day,
commencing July 15, 2010.  Interest
on a Note shall be paid to the Holder of such Note at the Close of Business on
the January 1 or July 1 (each, a “Record Date”),
as the case may be, immediately preceding the related Interest Payment Date,
and shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.  In the event of the maturity,
conversion, or repurchase of a Note by the Company at the option of the Holder,
interest shall cease to accrue on such Note. 
If the Conversion Date for a Note occurs after a Record Date but on or
before the corresponding Interest Payment Date, the interest payable on such
Interest Payment Date will be paid to the Holder of such Note on such Record
Date notwithstanding the conversion of such Note.


 


Section 11.02                          Defaulted
Interest.  Any
installment of interest that is payable, but is not punctually paid or duly
provided for on any Interest Payment Date (“Defaulted
Interest”), shall forthwith cease to be payable to the Holders in
whose names the Notes were registered on the Record Date applicable to such
installment of interest.  Defaulted
Interest (including any interest on such Defaulted Interest) may be paid by the
Company, at its election, as provided in Section 11.02(a) or (b).


 


(a)                                  The Company may
elect to make payment of any Defaulted Interest (including any interest on such
Defaulted Interest) to the Holders in whose names the Notes are registered at
the Close of Business on a special record date for the payment of such Defaulted
Interest


 


67

















 


(a “Special Record Date”), which shall be fixed in the following
manner.  The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Holders entitled to such Defaulted Interest as provided in this Section 11.02(a).  Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest, which shall be not more
than 15 calendar days and not less than ten calendar days prior to the date of
the proposed payment and not less than ten calendar days after the receipt by
the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
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 therefor to be sent by first-class mail, postage prepaid,
to each Holder at such Holder’s address as it appears in the registration books
of the Registrar, not less than ten calendar days prior to such Special Record
Date.  Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Holders in whose
names the Notes are registered at the Close of Business on such Special Record
Date and shall no longer be payable pursuant to Section 11.02(b).


 


(b)                                 Alternatively,
the Company may make payment of any Defaulted Interest (including any interest
on such Defaulted Interest) in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Section 11.02(b),
such manner of payment shall be deemed practicable by the Trustee.


 


(c)                                  Interest
Rights Preserved.  Subject to
the foregoing provisions of this Article 11 and, to the extent applicable,
Section 2.06 and Section 2.07, 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, and to
accrue, which were carried by such other Note.


 


ARTICLE 12


SUBORDINATION


 


Section 12.01                          Agreement
to Subordinate.  The Company
agrees, and each Holder of a Security agrees that payment of principal, any
accrued and unpaid interest (including Additional Interest), any Extension Fee
and any payment of the Fundamental Change Repurchase Price on the Notes will be
subordinated to the extent and manner provided in this Article 12 to the
prior payment in full of all Senior Debt of the Company, including Senior Debt
incurred after the date of this Indenture.


 


Section 12.02                          Liquidation;
Dissolution; Bankruptcy.  Upon
any distribution to creditors of the Company in a liquidation or dissolution of
the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, in an assignment
for the benefit of creditors or any marshaling of the Company’s assets


 


68

















 


and
liabilities, holders of Senior Debt will be entitled to receive payment in full
of all obligations due in respect of such Senior Debt (including interest after
the commencement of any bankruptcy proceeding at the rate specified in the
applicable Senior Debt) before the Holders will be entitled to receive any
payment with respect to the Notes.


 


Section 12.03                          Default on Designated Senior Debt.


 


(a)                                     The Company may
not make any payment or distribution in respect of the Notes if:


 


(i)                  payment
default on Designated Senior Debt occurs and is continuing beyond any
applicable grace period in the agreement, indenture or other document governing
such Designated Senior Debt; or


 


(ii)               any
other default occurs and is continuing on any series of Designated Senior Debt
that permits holders of that series of Designated Senior Debt to accelerate its
maturity and the Trustee receives a notice of such default (a “Payment Blockage Notice”) from the Company, or the holders,
indenture trustee or other trustee, agent or representative with respect to any
Designated Senior Debt.


 


(b)                                    The Company may
and will resume payments on the Notes:


 


(i)                  in
the case of a payment default, upon the date on which such default is cured or
waived; or


 


(ii)               in
the case of a default other than a payment default, upon the earlier of the
date on which such default other than a payment default is cured or waived or
179 days after the date on which the applicable Payment Blockage Notice is
received, unless the maturity of any Designated Senior Debt has been
accelerated.


 


(c)                                     No new Payment
Blockage Notice may be delivered unless and until:


 


(i)                  365
days have elapsed since the delivery of the immediately prior Payment Blockage
Notice; and


 


(ii)               all
scheduled payments of principal, any accrued and unpaid interest (including
Additional Interest), and any Extension Fee or payment of the Fundamental
Change Repurchase Price that have come due have been paid in full in cash.


 


(d)                                    No default
other than a payment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee (unless such default was
waived, cured or otherwise ceased to exist for a period of at least 60
consecutive days prior to the date of such subsequent Payment Blockage Notice
and thereafter subsequently reoccurred) will be, or be made, the basis for a
subsequent Payment Blockage Notice.


 


69

















 


Section 12.04                          When Distributions Must be Paid Over.


 


(a)                                  If the Trustee
or any Holder receives a payment in respect of the Securities when the payment
is prohibited by these subordination provisions, the Trustee or the Holder, as
the case may be, will hold the payment in trust for the benefit of the holder
of Senior Debt.  Upon the proper written
request of the holder of Senior Debt, the Trustee or the Holder, as the case
may be, will deliver the amounts in trust to the holder of Senior Debt or their
proper representative.


 


(b)                                 Upon obtaining
knowledge of any fact that, under this Article 12, would prohibit the
Trustee or the Paying Agent from making any payment with respect to the Notes,
the Company must give prompt written notice describing such fact to the Trustee
and Paying Agent. In addition, until notified, each of the Trustee and the
Paying Agent shall be entitled to assume that no such facts exist and,
notwithstanding anything to the contrary herein, shall be entitled to make any
payment or delivery provided for in this Indenture if it does not receive
notice of such facts at least three Business Days immediately prior to the date
on which such delivery or payment becomes due and payable.


 


Section 12.05                          Acceleration
of the Securities.  The Company
must promptly notify holder of Senior Debt if payment on the Notes is accelerated
because of an Event of Default.


 


Section 12.06                          No
Stacking.  The Company
will not incur, create, issue, assume, guarantee or otherwise become liable for
any indebtedness that is contractually subordinate or junior in right of
payment to any Senior Debt and senior in right of payment to the Notes. No such
indebtedness will be considered to be senior by virtue of being secured on a
first or junior priority basis.


 


Section 12.07                          Certain
Definitions.  For the
purposes of this Article 12:


 


(a)                                  “Designated Senior Debt” means any senior debt of the Company
in which the instrument creating or evidencing the same or the assumption or
guarantee thereof (or any related agreements or documents to which the Company
is a party) expressly provides that such senior debt shall be “designated
senior debt” for purposes of this Indenture; provided
that such instrument, agreement or other document may place limitations and
conditions on the right of such senior debt to exercise the rights of
designated senior indebtedness.


 


(b)                                 “Senior Debt” the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowed as a claim in any such proceeding) and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, indebtedness of the Company, whether secured or
unsecured, absolute or contingent, due or to become due, outstanding on the
date of this Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by the Company (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to,
the foregoing).


 


(c)                                  Notwithstanding
anything to the contrary in the preceding, Senior Debt will not include:


 


70
















 


(i)                  any
indebtedness or obligation whose terms expressly provide that such indebtedness
or obligation shall not be senior in right of payment to the Notes or expressly
provides that such indebtedness is equal or pari  passu in right of payment with or junior in right of payment
to the Notes;


 


(ii)               any
indebtedness of the Company to any of its subsidiaries; and


 


(iii)            the
Notes.


 


ARTICLE 13


MISCELLANEOUS


 


Section 13.01                          Trust
Indenture Act Controls.  If
any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.


 


Section 13.02                          Notices.  Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in Person or
mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:


 


if
to the Company:


 


Griffon
Corporation


712
Fifth Avenue, 18th Floor


New
York, New York 10019


Facsimile:  (516) 932-1169


Attention
of:  Chief Financial Officer


if
to the Trustee, Registrar, Paying Agent or Conversion Agent:


 


American
Stock Transfer & Trust Company, LLC


59
Maiden Lane


New
York, New York 10038


Facsimile:  (718) 331-1852


 


Attention:  Corporate Trust Office


 


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


 


Any notice or communication given to a Holder shall
be mailed to the Holder, by first-class mail, postage prepaid, at the Holder’s
address as it appears on the registration books of the Registrar and shall be
deemed given on the date of such 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 received by the addressee.


 


71

















 


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


 


If the Company is required under this Indenture to
give a notice to the Holders, in lieu of delivering such notice to the Holders,
the Company may deliver such notice to the Trustee and cause the Trustee to
have delivered such notice to the Holders on or prior to the date on which the
Company would otherwise have been required to deliver such notice to the
Holders.  In such a case, the Company
shall also cause the Trustee to mail a copy of the notice to each of the
Registrar, Paying Agent and Conversion Agent at the same time it mails the
notice to the Holders.


 


Section 13.03                          Communication
by Holders with Other Holders.  Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Notes.  The Company, the Trustee, the
Registrar, the Paying Agent, the Conversion Agent and anyone else shall have
the protection of TIA Section 312(c).


 


Section 13.04                          Certificate
and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:


 


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


 


(b)                                 an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent relating to the proposed action (to the extent of legal conclusions)
have been complied with.


 


Section 13.05                          Statements
Required in Certificate or Opinion.  Each Officers’ Certificate or Opinion of
Counsel with respect to compliance with a covenant or condition (except for
such Officers’ Certificate required to be delivered pursuant to Section 4.03)
provided for in this Indenture shall include:


 


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


 


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


 


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


 


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


 


72

















 


Section 13.06                          Separability
Clause.  In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


Section 13.07                          Rules by
Trustee.  The Trustee may make
reasonable rules for action by or a meeting of Holders.


 


Section 13.08                          Governing
Law.  THE INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO ANY APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 13.09                          No
Recourse Against Others..  A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Notes or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.  By
accepting a Note, each Holder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Notes.


 


Section 13.10                          Calculations.


 


The Company will be responsible for making all
calculations called for under the Notes. 
These calculations include, but are not limited to, determinations of
the Last Reported Sale Prices of the Common Stock, Daily VWAPs, Daily
Conversion Amounts, accrued interest payable on the Notes and the Conversion
Rate in effect on any Conversion Date.


 


The Company will make these calculations in good
faith and, absent manifest error, the calculations will be final and binding on
Holders.  The Company will provide to the
Trustee a schedule of its calculations, and the Trustee is entitled to rely
upon the accuracy of such calculations without independent verification.  The Trustee will forward the Company’s
calculations to any Holder upon the request of such Holder.


 


All calculations shall be made to the nearest cent
or to the nearest 1/10,000th of a share, as the case may be.


 


Section 13.11                          Successors.  All agreements of the Company, the Trustee,
the Registrar, the Paying Agent and the Conversion Agent in this Indenture and
the Notes shall bind their respective successors.


 


Section 13.12                          Multiple
Originals.  The parties
may sign any number of copies of this Indenture.  Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this
Indenture.


 


Section 13.13                          Table
of Contents; Headings.  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.


 


73

















 


Section 13.14                          Force
Majeure.  The Trustee, Registrar, Paying
Agent, and Conversion Agent shall not incur any liability for not performing
any act or fulfilling any duty, obligation or responsibility hereunder by reason
of any occurrence beyond the control of such person (including but not limited
to any act or provision of any present or future law or regulation or
governmental authority, any act of God or war, civil unrest, local or national
disturbance or disaster, any act of terrorism, or the unavailability of the
Federal Reserve Bank wire or facsimile or other wire or communication
facility).


 


Section 13.15                          Submission
to Jurisdiction.  The Company
(i) agrees that any suit, action or proceeding against it arising out of
or relating to this Indenture or the Notes, as the case may be, may be
instituted in any federal court with applicable subject matter jurisdiction
sitting in The City of New York; (ii) waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have
to the laying of venue of any such suit, action or proceeding, and any claim
that any suit, action or proceeding in such a court has been brought in an
inconvenient forum; and (iii) submits to the non-exclusive jurisdiction of
such courts in any suit, action or proceeding.


 


 


IN WITNESS WHEREOF, GRIFFON CORPORATION has caused
this Indenture to be duly executed as a deed the day and year first before
written.


 


GRIFFON
CORPORATION


 


 


	
  By:

  	
  /s/ Douglas J. Wetmore

  	
   

  
	
  Name:

  	
  Douglas
  J. Wetmore

  	
   

  
	
  Title:

  	
  Vice President and Chief
  Financial Officer

  	
   

  



 


74

















 


IN WITNESS WHEREOF, the undersigned, being duly
authorized, has executed this Indenture as of the date first above written.


 


	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST COMPANY, LLC, as Trustee, Paying Agent,
  Registrar and Conversion Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Herbert
  J. Lemmer

  
	
   

  	
  Authorized Signatory

  



 


Griffon Corporation 4.00%
Convertible Subordinated Notes – Indenture Signature Page


 

















 


EXHIBIT A


 


FORM OF NOTE


 


[FORM OF
FACE OF NOTE]


 


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


 


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


 


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


 


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


 


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


 


THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS NOTE AND THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (AND ANY
BENEFICIAL INTEREST HEREIN OR THEREIN) MAY NOT BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED, EXCEPT:


 


(A)                              TO THE COMPANY
OR ANY SUBSIDIARY THEREOF;


 


(B)                                PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;


 


A-1

















 


(C)                                TO A PERSON
THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT; OR


 


(D)                               UNDER ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT).


 


THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (A) THAT
IS AT LEAST SIX MONTHS AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE NOTES
(INCLUDING THE LAST DATE OF ISSUANCE OF ADDITIONAL NOTES PURSUANT TO THE
EXERCISE OF THE INITIAL PURCHASERS’ OPTION TO PURCHASE ADDITIONAL NOTES); AND (B) ON
WHICH THE COMPANY HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND WILL NO LONGER
APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE.


 


PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D), THE COMPANY
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY
UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


A-2

















 


No.: 
[                ]


	
  CUSIP:

  	
  398433
  AD4

  
	
  ISIN:

  	
  US398433AD42

  



 


Principal
Amount $[                       ]


as
revised by the Schedule of Increases


and
Decreases in the Global Note attached hereto


 


Griffon
Corporation


 


4.00%
Convertible Senior Notes due 2017


 


Griffon Corporation, a Delaware corporation,
promises to pay to
[              ]
[include “Cede & Co.” for Global Note] or registered assigns, the principal amount
of $[              ]
on January 15, 2017 (the “Maturity Date”).


 


Interest Payment Dates:  January 15 and July 15.


 


Record Dates: 
January 1 and July 1.


 


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


 


A-3
















 


	
   

  	
  GRIFFON
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Ronald
  J. Kramer

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
  Dated:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Douglas
  J. Wetmore

  
	
   

  	
  Title:

  	
  Vice
  President and Chief Financial Officer

  
	
   

  	
  Dated:

  	
   

  



 


Griffon Corporation 4.00%
Convertible Subordinated Notes – Notes Signature Page


 

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


AMERICAN STOCK TRANSFER & TRUST COMPANY,
LLC, as Trustee, certifies that this is one of the Notes referred to in the
within-mentioned Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
  Authorized
  Signatory

  	
   

  
	
  Dated:

  	
   

  	
   

  



 


Griffon Corporation 4.00% Convertible Subordinated
Notes – Notes Signature Page


 

















 


[FORM OF
REVERSE OF NOTE]


 


4.00%
Convertible Senior Notes due 2017


 


1.             Interest.


 


This Note shall bear cash interest at the rate of
4.00% per annum.  Interest on this Note
shall accrue from December 21, 2009 (the “Issue Date”)
or from the most recent date to which interest has been paid or provided
for.  Interest shall be payable
semiannually in arrears on January 15 and July 15 of each year, beginning
on July 15, 2010, to the Holder of record of this Note as of the Close of
Business on the January 1 or July 1 immediately preceding each
Interest Payment Date.  Each payment of
cash interest on this Note shall include interest accrued for the period commencing
on and including the immediately preceding Interest Payment Date (or, if none,
the Issue Date) through the day before the applicable Interest Payment
Date.  Any payment required to be made on
any day that is not a Business Day shall be made on the next succeeding
Business Day and no interest or other amount will be paid as a result of any
such postponement.  Interest shall be
calculated using a 360-day year composed of twelve 30-day months.  Interest shall cease to accrue on this Note
upon its Maturity Date, conversion or repurchase by the Company at the option
of the Holder upon the occurrence of a Fundamental Change.


 


Subject to certain exceptions, interest on Notes
converted after a Record Date, but on or prior to the corresponding Interest
Payment Date, will be paid to the Holder of the Notes on the Record Date, but
upon such conversion, the Holder must pay the Company the interest which has
accrued and will be paid by the Company on such Interest Payment Date.  No such payment need be made (1) if the
Company has specified a Fundamental Change Repurchase Date that is after a
Record Date and on or prior to the next Interest Payment Date; (2) to the
extent of overdue interest, if any overdue interest exists on the Conversion
Date with respect to such Notes; or (3) if such Notes are surrendered for
conversion after the Close of Business on the Record Date immediately preceding
the Maturity Date.


 


2.             Method of Payment.


 


The Company shall promptly make all payments in
respect of the Notes on the dates and in the manner provided herein and in the
Indenture.  The Company will pay interest
(including Additional Interest, if any, but excluding Defaulted Interest) on
the principal amount of the Notes on each January 15 and July 15 to
the Persons who are registered Holders of Notes at the Close of Business on the
January 1 and July 1 immediately preceding the Interest Payment Date
even if Notes are canceled or repurchased after such Record Date and on or
before the Interest Payment Date. 
Holders must surrender Notes to a Paying Agent to collect principal
payments.  The Company will pay
principal, accrued and unpaid interest (including Additional Interest), if any,
and any Extension Fee or payment of the Fundamental Change Repurchase Price in
money of the United States that at the time of payment is legal tender for
payment of public and private debts.  The
Company will make all payments in respect of a Global Note registered in the
name of the Depositary or its nominee to the Depositary or its nominee, as the case
may be, by wire transfer of immediately available funds to the account
specified by such Holder.  The Company
will make all payments in respect of a Certificated Note (including principal
and interest) in U.S. dollars at the office of the Trustee.  At the Company’s option, the Company may make
such


 


A-6

















 


payments by mailing a check
to the registered address of each Holder thereof as such address shall appear
on the register or, if requested by a Holder of more than $1,000,000 in
aggregate principal amount of Notes, by wire transfer of immediately available
funds to the account specified by such Holder. 
If an Interest 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.


 


3.             Paying Agent, Conversion
Agent and Registrar.


 


Initially, American Stock Transfer & Trust
Company, LLC will act as the Trustee, Paying Agent, Conversion Agent and
Registrar.  The Company may appoint and
change any Paying Agent, Conversion Agent or Registrar without notice, other
than notice to the Trustee; provided, however,  that the
Company will maintain at least one Paying Agent in the United States of
America, which shall initially be an office or agency of the Trustee.  The Company or any of its Subsidiaries or any
of their affiliates may act as Paying Agent, Conversion Agent or Registrar.


 


4.             Indenture.


 


The Company issued the Notes under an Indenture
dated as of December 21, 2009 (as may be amended or supplemented from time
to time in accordance with terms thereof, the “Indenture”),
between the Company and the Trustee.  The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as in effect
from time to time (the “TIA”).  Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.  The Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms.


 


The Notes are general unsecured, subordinated
obligations of the Company and are limited to an aggregate principal amount of
not more than $115,000,000.  The Indenture
does not limit other indebtedness of the Company, secured or unsecured.


 


5.             Repurchase By the Company at
the Option of the Holder upon a Fundamental Change.


 


(a)           At the option of the Holder, and subject to the
terms and conditions of the Indenture, upon the occurrence of a Fundamental
Change, each Holder will have the right, at its option, to require the Company
to repurchase for cash all of its Notes, or any portion of its Notes in
principal amount equal to $1,000 or an integral multiple of thereof, at a
Fundamental Change Repurchase Price equal to 100% of the principal amount of
Notes to be repurchased plus accrued and unpaid interest (including Additional
Interest), if any, to but excluding, the Fundamental Change Repurchase Date.  To exercise its repurchase right, a Holder
must deliver, on or before the Close of Business on the Business Day
immediately preceding the Fundamental Change Repurchase Date, written notice to
the Trustee of such Holder’s exercise of its repurchase right, together with
the Notes with respect to which the right is being exercised.  Subject to such Holder’s satisfaction of
certain requirements in the Indenture, the Company is required to repurchase
the Notes on a date specified by the Company that is no fewer than 20 Business
Days and no more than 35 Business Days after the date the Fundamental Change
Effective Date.


 


(b)           Holders have the right to withdraw any Fundamental
Change Repurchase Notice delivered pursuant to Paragraph 5(a) above by
delivering to the Paying Agent a written notice of


 


A-7

















 


withdrawal in accordance
with the provisions of the Indenture at any time prior to the Close of Business
on the Business Day immediately preceding the Fundamental Change Repurchase
Date.  If cash sufficient to pay the
Fundamental Change Repurchase Price of all Notes or portions thereof to be
repurchased as of the Fundamental Change Repurchase Date is deposited with the
Paying Agent on the Fundamental Change Repurchase Date, interest will cease to
accrue on such Notes (or portions thereof) immediately after such Fundamental
Change Repurchase Date, and the Holder thereof shall have no other rights as
such other than the right to receive the Fundamental Change Repurchase Price
upon surrender of such Note.


 


6.             Conversion.


 


(a)           Subject to and in compliance with the provisions of
the Indenture (including, without limitation, the conditions to conversion of
this Security set forth in Section 10.01 of the Indenture), a Holder
hereof has the right, at its option, to convert the principal amount hereof or
any portion of such principal amount which is $1,000 or an integral multiple
thereof, subject to Sections 10.01 and 10.03 of the Indenture, into, at the
Company’s election, cash, shares of Common Stock, or a combination of cash and
shares of Common Stock, together with an amount of cash in lieu of fractional
shares of Common Stock, if any, at the Conversion Rate on the Conversion
Date.  The Conversion Rate shall
initially equal 67.0799 shares of Common Stock per $1,000 and is subject to
adjustment upon the occurrence of certain events described in the Indenture.


 


(b)           To surrender a Note for conversion, a Holder must (1) complete
and manually sign the irrevocable conversion notice below or as provided by the
Conversion Agent (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent; (2) surrender the Note to the
Conversion Agent (if the Note is certificated); (3) furnish appropriate
endorsements and transfer documents; (4) pay any transfer or similar tax,
if required; and (5) pay funds equal to the interest payable on the next
interest payment date, if required.  If a
Holder holds a beneficial interest in a Global Note, such Holder must also
comply with any procedure of DTC applicable to the conversion of a beneficial
interest in such Global Note.


 


7.             Denominations; Transfer; Exchange.


 


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


 


8.             Amendment, Supplement and
Waiver.


 


Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes at the time
outstanding by the Company and the Trustee.  
The Company


 


A-8

















 


and the Trustee may also
amend or supplement the Indenture or the Notes without the consent of any
Holder so long as such changes, other than those in clause (2) below, do
not materially and adversely affect the interests of the Holders: (1) to
cure any ambiguity, omission, defect or inconsistency; (2) to provide for
the assumption of the Company’s obligations under the Indenture by a successor
upon any merger, consolidation or asset transfer permitted under the Indenture;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes; (4) to provide any security for or guarantees of the
Notes; (5) to comply with any requirement to effect or maintain the
qualification of the Indenture under the TIA; (6) to add covenants that
would benefit the Holders or to surrender any rights the Company has under the
Indenture; (7) to add events of default with respect to the Notes; (8) to
add circumstances under which the Company will pay additional interest on the
Notes; (9) to make any change that does not adversely affect any
outstanding Notes in any material respect; or (10) to conform the
provisions of the Indenture or the Notes to the Description of Notes contained
in the Offering Circular.


 


9.             Defaults and Remedies.


 


Each of the following is an Event of Default under
the Indenture: (1) the Company fails to pay any interest (including any
Additional Interest) or any Extension Fee on the Notes when it becomes due and
payable, and such default continues for a period of 30 days; (2) the
Company fails to pay all of or any part of the principal and any accrued and
unpaid interest on the Notes when it becomes due and payable at the Maturity
Date, upon acceleration,  upon a
Fundamental Change Repurchase Date or otherwise (including the failure to make
an offer to repurchase the Notes upon the occurrence of a Fundamental Change or
to pay the Fundamental Change Repurchase Price, in each case as required in the
Indenture); (3) the Company fails to provide a Fundamental Change Notice
as required by Section 3.03 of the Indenture, a notice as required by Section 10.01(a)(iii) of
the Indenture or a notice as required by Section 10.06(c) of the
Indenture; (4) the Company defaults in its obligations under Article 10
of the Indenture to deliver the shares of Common Stock, Cash or a combination
of Common Stock and Cash (including cash in lieu of fractional shares of Common
Stock) as required to be delivered upon the conversion of any Notes under Article 10
of the Indenture; (5) the Company defaults in its observance or
performance of any covenant or agreement in respect of the Notes contained in
the Notes or in the Indenture for a period of 30 days after it receives written
notice from the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding specifying such default and demanding that
such default be remedied; (6) the Company or any of its Significant
Subsidiaries defaults under any instrument or instruments evidencing
indebtedness (other than the Notes) having an aggregate outstanding principal
amount of $25,000,000 (or its equivalent in any other currency or currencies)
or more that results in the acceleration of the maturity of such indebtedness
unless such acceleration has been rescinded or annulled within 30 days after
written notice of such acceleration has been received by the Company or such
Significant Subsidiary; (7) one or more judgments in an aggregate amount
in excess of $25,000,000 shall have been rendered against the Company or any of
its Significant Subsidiaries remains or remain undischarged, unpaid or unstayed
for a period of 60 days after such judgment or judgments become final and nonappealable;
(8) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law: (A) commences a voluntary case; (B) consents
to the entry of an order for relief against it in an involuntary case; (C) consents
to the appointment of a Custodian of it or for any substantial part of its
property; (D) makes a general assignment for the benefit of its creditors;
or (E) takes any comparable


 


A-9

















 


action under any foreign laws
relating to insolvency; or (9) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that: (A) is for relief against
the Company or any of its Significant Subsidiaries in an involuntary case; (B) appoints
a Custodian of the Company or any of its Significant Subsidiaries or for any
substantial part of its or any of its Significant Subsidiaries’ property; (C) orders
the winding up or liquidation of the Company or any of its Significant
Subsidiaries; or (D) grants any similar relief under any foreign laws, and
in each such case the order or decree remains unstayed and in effect for 60
days.


 


The Indenture provides that if an Event of Default
(other than an Event of Default specified in Sections 6.01(viii) or 6.01(ix) of
the Indenture with respect to the Company) 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 plus accrued and unpaid interest
(including Additional Interest), if any, on the Notes to be due and payable
immediately. If an Event of Default specified in Sections 6.01(viii) or
6.01(ix) of the Indenture occurs and is continuing with respect to the
Company, the principal amount plus accrued and unpaid interest, if any, on 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 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 occurs before any judgment or decree has been obtained and if all
existing Events of Default have been cured other than nonpayment of the
principal amount or accrued but unpaid interest (including 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.


 


10.           Subordination.


 


The Securities are unsecured obligations of the
Company subordinated in right of payment to the Company’s existing and future
Senior Debt and structurally subordinated in right of payment to all
indebtedness and other liabilities of the Company’s subsidiaries.


 


11.           Persons Deemed Owners.


 


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


 


12.           Unclaimed Money or Notes.


 


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


 


A-10

















 


13.           Trustee Dealings with the
Company.


 


Subject to certain limitations imposed by the TIA,
the Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it
were not The Trustee.


 


14.           Calculations in Respect of
Notes.


 


The Company will be responsible for making all
calculations called for under the Notes. 
These calculations include, but are not limited to, determinations of
the Last Reported Sale Prices of Common Stock, Daily VWAPs, Daily Conversion
Amounts, any accrued interest payable on the Notes and the Conversion Rate in
effect on any Conversion Date.


 


The Company will make these calculations in good
faith and, absent manifest error, the calculations will be final and binding on
Holders of the Notes.  The Company will
provide to the Trustee a schedule of its calculations, and the Trustee is
entitled to rely upon the accuracy of such calculations without independent
verification.  The Trustee will forward
the Company’s calculations to any Holder of the Notes upon the request of such
Holder.


 


15.           No Recourse Against Others.


 


A director, officer, employee or shareholder, as
such, of the Company shall not have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation.  By accepting a Note, each Holder waives and
releases all such liability.  The waiver
and release are part of the consideration for the issue of the Notes.


 


16.           Authentication.


 


This Note shall not be valid until an authorized
signatory of the Trustee manually signs the Trustee’s certificate of
authentication on the other side of this Note.


 


17.           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 Gift to Minors
Act).


 


18.           GOVERNING LAW.


 


THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO ANY APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


A-11

















 


19.           CUSIP Numbers.


 


Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption 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
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


20.           Additional Interest;
Extension Fee.


 


Holders shall be entitled to payments of Additional
Interest or Extension Fees to the extent set forth in the Indenture.


 


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


 


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


 


Griffon Corporation


712 Fifth Avenue, 18th Floor


New York, New York 10019


Attention: 
Chief Financial Officer


 


A-12
















 


ASSIGNMENT
FORM


 


To assign this Note, fill in the form below:


 


	
  I
  or we assign and transfer this Note

  
	
   

  
	
   

  
	
   

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

  
	
   

  
	
   

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

  



 


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


 


CONVERSION
NOTICE


 


To convert this Note into shares of the
Common Stock of the Company, check the box o


 


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


 


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

  
	
   

  
	
   

  



 


	
  (Insert
  the other Person’s soc. sec. or tax ID no.)

  
	
   

  
	
   

  
	
   

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

  



 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  



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


 


	
  Signature
  Guaranteed

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Participant
  in a Recognized Signature

  	
   

  
	
  Guarantee
  Medallion Program

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
			



 


A-13

















 


[Include for
Global Note]


 


SCHEDULE
OF INCREASES AND DECREASES OF GLOBAL NOTE

Initial Principal Amount of Global Note:


 


	
  Date

  	
   

  	
  Amount of Increase

  in Principal

  Amount of Global

  Note

  	
   

  	
  Amount of 

  Decrease in

  Principal Amount

  of Global Note

  	
   

  	
  Principal Amount

  of Global Note

  After Increase or

  Decrease

  	
   

  	
  Notation by

  Registrar or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-14

















 


EXHIBIT B


 


FORM OF TRANSFER
CERTIFICATE


 


4.00
% Convertible Subordinated Notes due 2017


 


Transfer
Certificate


 


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


 


o A transfer of
the Surrendered Notes is made to the Company or any of its subsidiaries; or


 


o The transfer
of the Surrendered Notes complies with Rule 144A under the Securities Act;
or


 


o The transfer
of the Surrendered Notes is pursuant to an effective registration statement
under the Securities Act; or


 


o The transfer
of the Surrendered Notes is pursuant to another available exemption from the
registration requirement of the Securities Act.


 


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


 


o The transferee
is an Affiliate of the Company.


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  



 


B-1

















 


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


 


	
  Signature
  Guaranteed

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Participant
  in a Recognized Signature

  	
   

  
	
   

  	
   

  
	
  Guarantee Medallion
  Program

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
			



 


B-2

















 


EXHIBIT C


 


RESTRICTED STOCK LEGEND


 


Restricted
Stock Legend


 


THE SALE OF THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS
DEFINED BELOW), THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT
BE OFFERED, RESOLD, OR OTHERWISE TRANSFERRED, EXCEPT:


 


(A)          TO THE COMPANY OR ANY SUBSIDIARY THEREOF;


 


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


 


(C)           UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).


 


THE “RESALE RESTRICTION
TERMINATION DATE” MEANS THE DATE: (A) THAT IS AT LEAST SIX MONTHS AFTER
THE LAST DATE OF ORIGINAL ISSUANCE OF THE COMPANY’S 4.00% CONVERTIBLE
SUBORDINATED NOTES DUE 2017; AND (B) ON WHICH THE COMPANY HAS INSTRUCTED
THE TRUSTEE THAT THIS LEGEND WILL NO LONGER APPLY, IN ACCORDANCE WITH THE
PROCEDURES DESCRIBED IN THE INDENTURE FOR THE NOTES.


 


PRIOR TO ANY TRANSFER
PURSUANT TO THE FOREGOING CLAUSE (C), THE COMPANY AND THE COMPANY’S TRANSFER
AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY
UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


C-1