Exhibit 4.1





Exhibit 4.1




 






SAFEGUARD SCIENTIFICS, INC.




To




U.S. BANK NATIONAL ASSOCIATION,

as Trustee




 






INDENTURE




Dated as of




March 26, 2010




 






10.125% Convertible Senior Debentures Due March 15, 2014




 





 


 









 





CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§ 310

	 	(a)(1)
	 	6.09
	 

	 	(a)(2)
	 	6.09
	 

	 	(a)(3)
	 	N/A
	 

	 	(a)(4)
	 	N/A
	 

	 	(a)(5)
	 	N/A
	 

	 	(b)
	 	6.08
	 

	 	(c)
	 	N/A
	 
	 	 	 	 
	§ 311

	 	(a)
	 	6.13
	 

	 	(b)
	 	6.13
	 

	 	(c)
	 	N/A
	 
	 	 	 	 
	§ 312

	 	(a)
	 	4.01
	 

	 	(b)
	 	4.02
	 

	 	(c)
	 	4.02
	 
	 	 	 	 
	§ 313

	 	(a)
	 	4.03
	 

	 	(b)(1)
	 	N/A
	 

	 	(b)(2)
	 	4.03, 6.06
	 

	 	(c)
	 	4.03, 14.03
	 

	 	(d)
	 	4.03
	 
	 	 	 	 
	§ 314

	 	(a)
	 	4.04
	 

	 	(a)(4)
	 	3.07
	 

	 	(b)
	 	N/A
	 

	 	(c)(1)
	 	14.05
	 

	 	(c)(2)
	 	14.05
	 

	 	(c)(3)
	 	N/A
	 

	 	(d)
	 	N/A
	 

	 	(e)
	 	14.05
	 

	 	(f)
	 	N/A
	 
	 	 	 	 
	§ 315

	 	(a)
	 	6.01
	 

	 	(b)
	 	5.08
	 

	 	(c)
	 	6.01
	 

	 	(d)
	 	6.01
	 

	 	(e)
	 	5.09
	 
	 	 	 	 
	§ 316

	 	(a) (last sentence)
	 	7.04
	 

	 	(a)(1)(A)
	 	5.07
	 

	 	(a)(1)(B)
	 	5.07
	 

	 	(a)(2)
	 	N/A
	 

	 	(b)
	 	5.04
	 

	 	(c)
	 	N/A
	 
	 	 	 	 
	§ 317

	 	 	 	5.02
	 

	 	(a)(1)
	 	5.05
	 

	 	(a)(2)
	 	5.02
	 

	 	(b)
	 	3.04
	 
	 	 	 	 
	§ 318

	 	(a)
	 	 14.07







 





	 	 	 
	“N/A” means not applicable.
	 
	* 	 	This Cross-Reference Table shall not be deemed to be a part of this Indenture for any purpose.





 


 











 




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 1 DEFINITIONS	 	 	2	 
	Section 1.01.
	 	Definitions	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF DEBENTURES	 	 	12	 
	Section 2.01.
	 	Designation Amount And Issue Of Debentures	 	 	12	 
	Section 2.02.
	 	Form of Debentures	 	 	12	 
	Section 2.03.
	 	Date And Denomination Of Debentures; Payments Of Interest	 	 	13	 
	Section 2.04.
	 	Execution of Debentures	 	 	15	 
	Section 2.05.
	 	Exchange and Registration of Transfer of Debentures; Restrictions on Transfer	 	 	15	 
	Section 2.06.
	 	Mutilated, Destroyed, Lost or Stolen Debentures	 	 	19	 
	Section 2.07.
	 	Temporary Debentures	 	 	20	 
	Section 2.08.
	 	Cancellation of Debentures	 	 	20	 
	Section 2.09.
	 	CUSIP Numbers	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE 3 REPURCHASE OF DEBENTURES	 	 	21	 
	Section 3.01.
	 	Repurchase at Option of Holders Upon a Designated Event	 	 	21	 
	Section 3.02.
	 	Repayment to the Company	 	 	25	 
	Section 3.03.
	 	Acceleration; Payments To Debentureholders	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY	 	 	25	 
	Section 4.01.
	 	Payment of Principal and Interest	 	 	25	 
	Section 4.02.
	 	Maintenance of Office or Agency	 	 	26	 
	Section 4.03.
	 	Appointments to Fill Vacancies in Trustee’s Office	 	 	26	 
	Section 4.04.
	 	Provisions as to Paying Agent	 	 	26	 
	Section 4.05.
	 	Existence	 	 	28	 
	Section 4.06.
	 	Stay, Extension and Usury Laws	 	 	28	 
	Section 4.07.
	 	Compliance Certificate	 	 	28	 
	Section 4.08.
	 	Escrow Agreement	 	 	28	 
	Section 4.09.
	 	Limitation on Exchange Offers for Existing Debentures	 	 	29	 






 


i









 





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 5 DEBENTUREHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE	 	 	29	 
	Section 5.01.
	 	Debentureholders’ Lists	 	 	29	 
	Section 5.02.
	 	Preservation And Disclosure Of Lists	 	 	29	 
	Section 5.03.
	 	Reports By Trustee	 	 	30	 
	Section 5.04.
	 	Reports by Company	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE 6 REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON AN EVENT OF DEFAULT	 	 	31	 
	Section 6.01.
	 	Events Of Default	 	 	31	 
	Section 6.02.
	 	Payments of Debentures on Default; Suit Therefor	 	 	33	 
	Section 6.03.
	 	Application of Monies Collected By Trustee	 	 	35	 
	Section 6.04.
	 	Proceedings by Debentureholder	 	 	36	 
	Section 6.05.
	 	Proceedings By Trustee	 	 	37	 
	Section 6.06.
	 	Remedies Cumulative And Continuing	 	 	37	 
	Section 6.07.
	 	Direction of Proceedings and Waiver of Defaults By Majority of Debentureholders	 	 	37	 
	Section 6.08.
	 	Notice of Defaults	 	 	38	 
	Section 6.09.
	 	Undertaking To Pay Costs	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE 7 THE TRUSTEE	 	 	39	 
	Section 7.01.
	 	Duties and Responsibilities of Trustee	 	 	39	 
	Section 7.02.
	 	Reliance on Documents, Opinions, Etc.	 	 	40	 
	Section 7.03.
	 	No Responsibility For Recitals, Etc.	 	 	42	 
	Section 7.04.
	 	Trustee, Paying Agents, Conversion Agents or Debenture Registrar May Own Debentures	 	 	42	 
	Section 7.05.
	 	Monies to Be Held in Trust	 	 	42	 
	Section 7.06.
	 	Compensation and Expenses of Trustee	 	 	42	 
	Section 7.07.
	 	Officers’ Certificate As Evidence	 	 	43	 
	Section 7.08.
	 	Conflicting Interests of Trustee	 	 	43	 
	Section 7.09.
	 	Eligibility of Trustee	 	 	43	 
	Section 7.10.
	 	Resignation or Removal of Trustee	 	 	44	 
	Section 7.11.
	 	Acceptance by Successor Trustee	 	 	45	 
	Section 7.12.
	 	Succession By Merger	 	 	46	 
	Section 7.13.
	 	Preferential Collection of Claims	 	 	46	 






 


ii









 





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 8 THE DEBENTUREHOLDERS	 	 	47	 
	Section 8.01.
	 	Action By Debentureholders	 	 	47	 
	Section 8.02.
	 	Proof of Execution by Debentureholders	 	 	47	 
	Section 8.03.
	 	Who Are Deemed Absolute Owners	 	 	47	 
	Section 8.04.
	 	Company-owned Debentures Disregarded	 	 	48	 
	Section 8.05.
	 	Revocation Of Consents, Future Holders Bound	 	 	48	 
	 
	 	 	 	 	 	 
	ARTICLE 9 MEETINGS OF DEBENTUREHOLDERS	 	 	49	 
	Section 9.01.
	 	Purpose Of Meetings	 	 	49	 
	Section 9.02.
	 	Call Of Meetings By Trustee	 	 	49	 
	Section 9.03.
	 	Call Of Meetings By Company Or Debentureholders	 	 	49	 
	Section 9.04.
	 	Qualifications For Voting	 	 	50	 
	Section 9.05.
	 	Regulations	 	 	50	 
	Section 9.06.
	 	Voting	 	 	51	 
	Section 9.07.
	 	No Delay Of Rights By Meeting	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE 10 SUPPLEMENTAL INDENTURES	 	 	51	 
	Section 10.01.
	 	Supplemental Indentures Without Consent of Debentureholders	 	 	51	 
	Section 10.02.
	 	Supplemental Indenture With Consent Of Debentureholders	 	 	53	 
	Section 10.03.
	 	Effect Of Supplemental Indenture	 	 	54	 
	Section 10.04.
	 	Notation On Debentures	 	 	54	 
	Section 10.05.
	 	Evidence Of Compliance Of Supplemental Indenture To Be Furnished To Trustee	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE 11 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE	 	 	55	 
	Section 11.01.
	 	Company May Consolidate On Certain Terms	 	 	55	 
	Section 11.02.
	 	Successor To Be Substituted	 	 	55	 
	Section 11.03.
	 	Non-Substantive Changes to Debentures	 	 	56	 
	Section 11.04.
	 	Opinion Of Counsel To Be Given to Trustee	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE 12 SATISFACTION AND DISCHARGE OF INDENTURE	 	 	56	 
	Section 12.01.
	 	Discharge Of Indenture	 	 	56	 
	Section 12.02.
	 	Deposited Monies To Be Held In Trust By Trustee	 	 	57	 
	Section 12.03.
	 	Paying Agent To Repay Monies Held	 	 	57	 
	Section 12.04.
	 	Return Of Unclaimed Monies	 	 	57	 
	Section 12.05.
	 	Reinstatement	 	 	58	 






 


iii









 





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 13 IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS	 	 	58	 
	Section 13.01.
	 	Indenture And Debentures Solely Corporate Obligations	 	 	58	 
	 
	 	 	 	 	 	 
	ARTICLE 14 CONVERSION OF DEBENTURES	 	 	58	 
	Section 14.01.
	 	Debentureholder’s Right To Convert	 	 	58	 
	Section 14.02.
	 	Mandatory Conversion	 	 	61	 
	Section 14.03.
	 	Conversion After Exercise of Option to Elect to Repurchase Upon a
Designated Event; No Stockholder Rights	 	 	62	 
	Section 14.04.
	 	Conversion Procedure and Payment Upon Conversion	 	 	63	 
	Section 14.05.
	 	Cash Payments in Lieu of Fractional Shares	 	 	67	 
	Section 14.06.
	 	Conversion Rate	 	 	68	 
	Section 14.07.
	 	Adjustment Of Conversion Rate	 	 	68	 
	Section 14.08.
	 	Effect Of Reclassification, Consolidation, Merger or Sale	 	 	81	 
	Section 14.09.
	 	Taxes On Shares Issued	 	 	82	 
	Section 14.10.
	 	Reservation of Shares, Shares to Be Fully Paid; Compliance With
Governmental Requirements; Listing of Common Stock	 	 	83	 
	Section 14.11.
	 	Responsibility Of Trustee	 	 	83	 
	Section 14.12.
	 	Notice To Holders Prior To Certain Actions	 	 	84	 
	Section 14.13.
	 	Issuer Determination Final	 	 	85	 
	 
	 	 	 	 	 	 
	ARTICLE 15 MISCELLANEOUS PROVISIONS	 	 	85	 
	Section 15.01.
	 	Provisions Binding On Company’s Successors	 	 	85	 
	Section 15.02.
	 	Official Acts By Successor Corporation	 	 	85	 
	Section 15.03.
	 	Addresses For Notices, Etc.	 	 	85	 
	Section 15.04.
	 	Governing Law	 	 	86	 
	Section 15.05.
	 	Evidence Of Compliance With Conditions Precedent, Certificates To Trustee	 	 	86	 
	Section 15.06.
	 	Legal Holidays	 	 	87	 
	Section 15.07.
	 	Trust Indenture Act	 	 	87	 
	Section 15.08.
	 	No Security Interest Created	 	 	87	 
	Section 15.09.
	 	Benefits Of Indenture	 	 	87	 
	Section 15.10.
	 	Authenticating Agent	 	 	88	 
	Section 15.11.
	 	Execution In Counterparts	 	 	89	 
	Section 15.12.
	 	Severability	 	 	89	 
	Section 15.13.
	 	Table of Contents, Headings, Etc.	 	 	89	 
	 
	 	 	 	 	 	 
	EXHIBIT A FORM OF DEBENTURE	 	 	A-1	 
	EXHIBIT B ADDITIONAL SHARES TABLE	 	 	B-1	 







 


iv











 




INDENTURE




INDENTURE dated as of March 26, 2010, between Safeguard Scientifics, Inc., a Pennsylvania
corporation (hereinafter called the “Company”), having its principal office at 435 Devon Park
Drive, Building 800, Wayne, PA 19087, and U.S. Bank National Association, as trustee hereunder
(hereinafter called the “Trustee”).



WITNESSETH:




WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
10.125% Convertible Senior Debentures Due March 15, 2014 (hereinafter called the “Debentures”), in
an aggregate principal amount not to exceed $46,936,000 and, to provide the terms and conditions
upon which the Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and



WHEREAS, the Debentures, the certificate of authentication to be borne by the Debentures, a
form of assignment, a form of option to elect to repurchase upon a Designated Event and a form of
conversion notice to be borne by the Debentures are to be substantially in the forms hereinafter
provided for; and



WHEREAS, all acts and things necessary to make the Debentures, when executed by the Company
and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in
this Indenture provided, the valid, binding and legal obligations of the Company, and to constitute
this Indenture a valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Debentures have in all respects been
duly authorized,



NOW, THEREFORE, THIS INDENTURE WITNESSETH:



That in order to declare the terms and conditions upon which the Debentures are, and are to
be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Debentures by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from time to time of the
Debentures (except as otherwise provided below), as follows:


 


 









 





ARTICLE 1

Definitions




Section 1.01. Definitions. The terms defined in this ARTICLE 1 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this ARTICLE
1. All other terms used in this Indenture that are defined in the Trust Indenture Act or that are
by reference therein defined in the Securities Act (except as herein otherwise expressly provided
or unless the context otherwise requires) shall have the meanings assigned to such terms in the
Trust Indenture Act and in the Securities Act as in force at the date of the execution of this
Indenture. The words “herein”, “hereof”, “hereunder” and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other Subdivision. The terms
defined in this ARTICLE 1 include the plural as well as the singular.



“Additional Shares” has the meaning specified in Section 14.07(n).



“Adjustment Event” has the meaning specified in Section 14.07(n).



“Agent Members” has the meaning specified in Section 2.05(b)(v).



“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.



“Bid Solicitation Agent” means a Company-appointed agent that determines the Trading Price of
Debentures and performs calculations as set forth in Section 14.01(a) of this Indenture. The
Trustee shall initially be the Bid Solicitation Agent. The Company may, after receiving consent
from Debentureholders holding a majority of the Debentures then Outstanding, appoint a new Bid
Solicitation Agent; provided, however, that in no event shall the Bid Solicitation Agent be an
Affiliate of the Company.



“Board of Directors” means the Board of Directors of the Company or a committee of such Board
duly authorized to act for it hereunder.



“Business Day” means any day except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York or Charlotte, NC are authorized or obligated by law,
regulation or executive order to close.


 


2









 





“Cash Settlement” has the meaning specified in Section 14.04(b).



“Closing Sale Price” for any date means (a) with respect to shares of Common Stock, the
closing sale price per share (or if no closing sale price is reported, the average of the closing
bid and ask prices or, if more than one in either case, the average of the average closing bid and
the average closing ask prices) on such date as reported in composite transactions for the
principal United States securities exchange on which shares of Common Stock are traded or, if the
shares of Common Stock are not listed on a United States national or regional securities exchange,
as reported by the National Quotation Bureau Incorporated, and (b) with respect to any other
securities, the closing sale price per share, unit or other denomination of such securities (or if
no closing sale price is reported, the average of the closing bid and ask prices or, if more than
one in either case, the average of the average closing bid and the average closing ask prices) on
such date as reported in composite transactions for the principal United States securities exchange
on which such securities are traded or, if such securities are not listed on a United States
national or regional securities exchange, as reported by the National Quotation Bureau
Incorporated. In the absence of a quotation for (x) the shares of the Common Stock as described in
subsection (a), or (y) the shares, units or other denomination of any other securities as described
in subsection (b), as the case may be, the Company shall be entitled to determine the Closing Sale
Price for such Common Stock or other securities on the basis it considers appropriate.



“Combination Settlement” has the meaning specified in Section 14.04(b).



“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



“Common Stock” means any stock of any class of the Company that has no preference in respect
of dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and that is not subject to redemption by the Company.
Subject to the provisions of ARTICLE 14, however, shares issuable upon conversion of Debentures
shall include only shares of the class designated as common stock of the Company at the date of
this Indenture (namely, the Common Stock, par value $0.10) or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that are not subject to redemption by the
Company; provided that if at any time there shall be more than one such resulting class, the shares
of each such class then so issuable on conversion shall be substantially in the proportion that the
total number of shares of such class resulting from all such reclassifications bears to the total
number of shares of all such classes resulting from all such reclassifications.


 


3









 





“Company” means the corporation named as the “Company” in the first paragraph of this
Indenture, and, subject to the provisions of ARTICLE 11 and Section 14.08, shall include its
successors and assigns.



“Continuing Director” means a director who either was a member of the Board of Directors on
March 26, 2010 or who becomes a member of the Board of Directors subsequent to that date and whose
appointment, election or nomination for election by the shareholders of the Company is duly
approved by a majority of the Continuing Directors on the Board of Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement issued by the Company on
behalf of the Board of Directors in which such individual is named as nominee for director.



“Conversion Agent” means a Company-appointed agent that effects the conversion of Debentures
as set forth in this Indenture. The Trustee shall initially be the Conversion Agent. The Company
may, after receiving consent from Debentureholders holding a majority of the Debentures then
Outstanding, appoint a new Conversion Agent; provided, however, that in no event shall the Bid
Solicitation Agent be an Affiliate of the Company.



“Conversion Consideration” means the consideration that is due, in accordance with this
Indenture, upon a conversion of a Debenture.



“Conversion Date” means, with respect to a Debenture to be converted in accordance with this
Indenture, the date on which all of the requirements for such conversion set forth in ARTICLE 14
are satisfied.



“Conversion Price” as of any day will equal $1,000 divided by the Conversion Rate as of such
date and rounded to the nearest cent. The Conversion Price shall initially be $16.50 per share of
Common Stock.



“Conversion Rate” has the meaning specified in Section 14.06.



“Conversion Value” means an amount, per $1,000 principal amount of a Debenture to be
converted, equal to the sum of the Daily Conversion Values for each Trading Day in the Observation
Period for such conversion.



“Corporate Trust Office” or other similar term, means the designated office of the Trustee at
which at any particular time its corporate trust business as it relates to this Indenture shall be
administered, which office is, at the date as of which this Indenture is dated, located at
Corporate Trust Services, Two Liberty Place, 50 S. 16th Street, Suite 2000, Mail Station:
EX-PA-WBSP Philadelphia, PA 19102.


 


4









 





“Current Market Price” has the meaning specified in Section 14.07(j)(i).



“Custodian” means U.S. Bank National Association, as custodian with respect to the Debentures
in global form, or any successor entity thereto.



“Daily Conversion Value” means, as of any Trading Day, one-twentieth (1/20th) of the product
of (a) the Conversion Rate in effect on such Trading Day; and (b) the VWAP per share of Common
Stock on such Trading Day.



“Debenture” or “Debentures” means any Debenture or Debentures, as the case may be,
authenticated and delivered under this Indenture, including any Global Debenture.



“Debenture Register” has the meaning specified in Section 2.05.



“Debenture Registrar” has the meaning specified in Section 2.05.



“Debentureholder” or “Holder” as applied to any Debenture, or other similar terms (but
excluding the term “Beneficial Holder”), means any Person in whose name at the time a particular
Debenture is registered on the Debenture Registrar’s books.



“Defaulted Interest” has the meaning specified in Section 2.03.



“Depositary” means, the clearing agency registered under the Exchange Act that is designated
to act as the Depositary for the Global Debentures. The Depository Trust Company shall be the
initial Depositary, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such
successor.



“Designated Event” means a Fundamental Change or a Termination of Trading.



“Designated Event Expiration Time” has the meaning specified in Section 3.01(b).



“Designated Event Notice” has the meaning specified in Section 3.01(b).



“Designated Event Repurchase Date” has the meaning specified in Section 3.01(a).



“Determination Date” has the meaning specified in Section 14.07(n).



“Directed Share Subscription Program” means a program whereby all shareholders of the Company
are entitled to purchase a portion of the shares offered by a Partnership Company in that
Partnership Company’s initial public offering.


 


5









 





“Distributed Property” has the meaning specified in Section 14.07(d).



“Effective Date” has the meaning specified in Section 14.07(n).



“Escrow Account” means the escrow account established pursuant to the Escrow Agreement.



“Escrow Agent” means U.S. Bank National Association, in its capacity as escrow agent under the
Escrow Agreement, and any permitted successors thereto.



“Escrow Agreement” means the Escrow Agreement, dated as of March 26, 2010, by and among the
Company, the Trustee and the Escrow Agent.



“Event of Default” means any event specified in Section 6.01 as an Event of Default.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.



“Ex-Dividend Date” has the meaning specified in Section 14.07(d)(i).



“Expiration Time” has the meaning specified in Section 14.07(f).



“Fair Market Value” has the meaning specified in Section 14.07(j)(ii).



“Fixed Cash Amount” has the meaning specified in Section 14.04(b).



“Free Convertibility Period Settlement Method Election Notice” has the meaning specified in
Section 14.04(b)(ii).



“Fundamental Change” means the occurrence of any of:



(i) any transaction or event (whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combination, reclassification, recapitalization or otherwise) in
connection with which all or substantially all of the Common Stock is exchanged for, converted
into, acquired for or constitutes solely the right to receive consideration that is not at least
90% common stock that is (or, upon consummation of or immediately following such transaction or
event, which will be) (x) listed on a United States national securities exchange or (y) approved
for quotation on any United States system of automated dissemination of quotations of securities
prices;



(ii) the Company is a party to a consolidation, merger, binding share exchange, or transfer or
lease of all or substantially all of its assets, pursuant to which the Common Stock would be
converted into or exchanged for, or would constitute solely the right to receive, cash, securities
or other assets;


 


6









 





(ii) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than
the Company, a Subsidiary of the Company or the employee benefit plans of the Company or the
Subsidiaries of the Company, files a Schedule TO or any other schedule, form or report under the
Exchange Act disclosing that such person or group has become the “beneficial owner,” as defined in Rule
13d-3 under the Exchange Act, of more than 50% of the total voting power of all shares of the
Company’s capital stock that are entitled to vote generally in the election of directors; or




(iii) Continuing Directors cease to constitute at least a majority of the Board of Directors.



“Global Debenture” has the meaning specified in Section 2.02.



“Indebtedness” means, with respect to any Person, and without duplication, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of the Person in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar instruments) or evidenced by
bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to
the whole of the assets of such Person or to only a portion thereof), other than any account
payable or other accrued current liability or obligation incurred in the ordinary course of
business in connection with the obtaining of materials or services; (b) all reimbursement
obligations and other liabilities (contingent or otherwise) of such Person with respect to letters
of credit, bank guarantees or bankers’ acceptances; (c) any indebtedness or other obligations
described in clause (a) or (b) secured by any mortgage, pledge, lien or other encumbrance existing
on property that is owned or held by such Person, regardless of whether the indebtedness or other
obligation secured thereby shall have been assumed by such Person; and (d) any and all deferrals,
renewals, extensions and refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in clauses (a) through (c).



“Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.



“Interest” means, when used with reference to the Debentures, any interest payable under the
terms of the Debentures.



“IPO Rights” has the meaning specified in Section 14.07(g).



“IPO Rights Adjustment Date” has the meaning specified in Section 14.07(g).


 


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“Irrevocable Net Share Settlement Election” has the meaning specified in Section 14.04(b)(iv).



“Irrevocable Net Share Settlement Election Date” has the meaning specified in Section
14.04(b)(iv).



“Mandatory Conversion” has the meaning specified in Section 14.02(a).



“Mandatory Conversion Additional Payment” has the meaning specified in Section 14.02(f).



“Mandatory Conversion Date” has the meaning specified in Section 14.02(b).



“Measurement Period” has the meaning specified in Section 14.01(a)(ii).



“Observation Period” means, with respect to the conversion of a Debenture pursuant to ARTICLE
14, (A) if the Conversion Date of such conversion occurs on or prior to the Business Day
immediately preceding March 15, 2013, the twenty (20) consecutive Trading Days beginning on, and
including, the twentieth (20th) scheduled Trading Day immediately preceding the maturity date of
the Debentures; (B) in all other cases, the twenty (20) consecutive Trading Days beginning on, and
including, the third (3rd) Trading Day following the Conversion Date.



“Officers’ Certificate”, when used with respect to the Company, means a certificate signed by
the Chief Executive Officer, the President or any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title “Vice President”) and the
Treasurer or any Assistant Treasurer, or the Secretary or Assistant Secretary of the Company.



“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel reasonably acceptable to the Trustee.



“Option to Elect Repurchase Upon a Designated Event” has the meaning specified in Section
3.01(c).



“Outstanding”, when used with reference to Debentures and subject to the provisions of Section
8.04, means, as of any particular time, all Debentures authenticated and delivered by the Trustee
under this Indenture, except:



(a) Debentures theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;



(b) Debentures, or portions thereof, that shall have been defeased in accordance with ARTICLE
12;


 


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(c) Debentures in lieu of which, or in substitution for which, other Debentures shall have
been authenticated and delivered pursuant to the terms of Section 2.06; and



(d) Debentures converted into Common Stock pursuant to ARTICLE 14.



“Partnership Company” means an entity in which the Company either directly or indirectly
through its Subsidiaries has an equity interest.



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



“Physical Settlement” has the meaning specified in Section 14.04(b).



“Predecessor Debenture” of any particular Debenture means every previous Debenture evidencing
all or a portion of the same debt as that evidenced by such particular Debenture, and, for the
purposes of this definition, any Debenture authenticated and delivered under Section 2.06 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture that it replaces.



“Purchased Shares” has the meaning specified in Section 14.07(f).



“Record Date” has the meaning specified in Section 14.07(j)(iii).



“Reference Property” has the meaning specified in Section 14.08(a).



“Relevant Trading Day” has the meaning specified in Section 14.04(a)(iv).



“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such person’s knowledge of any familiarity with
the particular subject.



“Rights IPO” means an initial public offering of the common stock of a Partnership Company
solely through the issuance of rights, by such Partnership Company, to purchase such common stock
to the shareholders of the Company.



“Sale Event” has the meaning specified in Section 11.01.


 


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“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.



“Settlement Method” means Physical Settlement, Cash Settlement or Combination Settlement, as
the case may be.



“Settlement Method Election Notice” has the meaning specified in Section 14.04(b).



“Stock Price” has the meaning specified in Section 14.07(n).



“Subscription Rights Adjustment Date” has the meaning specified in Section 14.07(h).



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



“Termination of Trading” will be deemed to have occurred if the Common Stock (or other common
stock into which the Debentures are then convertible) is neither listed for trading on a United
States national or regional securities exchange nor approved for quotation on any United States
system of automated dissemination of quotations of securities prices.



“Trading Day” has the meaning specified in Section 14.07(j)(iv).



“Trading Price” of Debentures on any date of determination means the average of the secondary
market bid quotations obtained by the Bid Solicitation Agent for two million five hundred thousand
dollars ($2,500,000) principal amount of Debentures at approximately 3:30 p.m. (New York City
time), on such determination date from three (3) independent nationally recognized securities
dealers the Company selects; provided, however, that, if three (3) such bids cannot reasonably be
obtained by the Bid Solicitation Agent but two (2) such bids are obtained, then the average of the
two bids shall be used, and if only one (1) such bid can reasonably be obtained by the Bid
Solicitation Agent, that one (1) bid shall be used; provided further, however, that if the Bid
Solicitation Agent cannot reasonably obtain at least one (1) bid for two million five hundred
thousand dollars ($2,500,000) principal amount of the Debentures from an independent nationally
recognized securities dealer, then the Trading Price per $1,000 principal amount of Debentures will
be deemed to be less than one


 


10









 





hundred percent (100%) of the product of the Closing Sale Price per
share of the Common Stock and the applicable Conversion Rate on such date of determination;
provided further, however, that if the Company does not instruct the Bid Solicitation Agent to
obtain such bids when required pursuant to this Indenture, then the Trading Price per $1,000
principal amount of Debentures will be deemed to be less than one hundred percent (100%) of the
product of the Closing Sale Price per share of the Common Stock and the applicable Conversion Rate
on each day the Company fails to do so for purposes of Section 13.01(a)(ii).



“Trading Price Condition” has the meaning specified in Section 14.01(a)(ii)



“Trigger Event” has the meaning specified in Section 14.07(d).



“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of this Indenture, except as provided in Section 10.03 and Section 14.08; provided that if
the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act”
shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.



“Trustee” means U.S. Bank National Association, and its successors and any corporation
resulting from or surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee at the time serving as successor trustee hereunder.



“VWAP” per share of Common Stock means, with respect to any Trading Day, the per share
volume-weighted average price per share of Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page SFE US Equity AQR or any successor page in respect of the period from 9:30
a.m. to 4:00 p.m., New York City time, on such Trading Day; provided, however, that if such
volume-weighted average price is unavailable on such Trading Day, then VWAP means the Closing Sale
Price of the Common Stock on such Trading Day as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company; provided further that VWAP shall
in all cases be determined without reference to extended or after-hours trading.


 


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ARTICLE 2

Issue, Description, Execution, Registration And Exchange Of

Debentures




Section 2.01. Designation Amount And Issue Of Debentures. The Debentures shall be designated
as “10.125% Convertible Senior Debentures Due March 15, 2014”. Debentures not to exceed the
aggregate principal amount of $46,936,000 (except pursuant to Section 2.05, Section 2.06 and
Section 14.02(f) hereof) upon the execution of this Indenture, or from time to time thereafter, may
be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order of the Company,
signed by its Chief Executive Officer, President or any Vice President (whether or not designated
by a number or numbers or word or words added before or after the title “Vice President”), the
Treasurer or any Assistant Treasurer or the Secretary or Assistant Secretary, without any further
action by the Company hereunder.



Section 2.02. Form of Debentures. The Debentures and the Trustee’s certificate of
authentication to be borne by such Debentures shall be substantially in the form set forth in Exhibit A hereto. The terms and provisions contained in the form of
Debenture attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.



Any of the Debentures may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange
or automated quotation system on which the Debentures may be listed, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular Debentures are subject.



So long as the Debentures are eligible for book-entry settlement with the Depositary, or
unless otherwise required by law, or otherwise contemplated by Section 2.05(b), all of the
Debentures will be represented by one or more Debentures in global form registered in the name of
the Depositary or the nominee of the Depositary (a “Global Debenture”). The transfer and exchange
of beneficial interests in any such Global Debenture shall be effected through the Depositary in
accordance with this Indenture and the applicable procedures of the Depositary. Except as provided
in Section 2.05(b), beneficial owners of a Global Debenture shall not be entitled to have
certificates registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered holders of such Global
Debenture.


 


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Any Global Debenture shall represent such of the Outstanding Debentures as shall be specified
therein and shall provide that it shall represent the aggregate amount of Outstanding Debentures
from time to time endorsed thereon and that the aggregate amount of Outstanding Debentures
represented thereby may from time to time be increased or reduced to reflect repurchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Debenture to
reflect the amount of any increase or decrease in the amount of Outstanding Debentures represented
thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the Debentureholder of such Debentures in accordance with
this Indenture. Payment of principal of and Interest on any Global Debenture shall be made to the
Debentureholder of such Debenture.



Section 2.03. Date And Denomination Of Debentures; Payments Of Interest.



(a) The Debentures shall be issuable in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. Each Debenture shall be dated the date of
its authentication and shall
bear Interest from the date specified on the face of the form of Debenture attached as Exhibit
A hereto. Interest on the Debentures shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.



(b) The Person in whose name any Debenture (or its Predecessor Debenture) is registered on the
Debenture Register at the close of business on any record date with respect to any interest payment
date shall be entitled to receive the Interest payable on such interest payment date, except that
the Interest payable upon repurchase will be payable to the Person to whom principal is payable
pursuant to such repurchase (unless the Designated Event Repurchase Date falls after a record date
and on or prior to the corresponding interest payment date, in which case the full semi-annual
payment of Interest becoming due on such interest payment date shall be payable to the Holders of
such Debentures registered as such on the corresponding record date). Interest shall be payable at
an office maintained by the Company for such purposes in the Borough of Manhattan, City of New
York, which shall initially be an office or agency of the Trustee. The Company shall pay Interest
(i) on any Debentures in certificated form by check mailed to the address of the Person entitled
thereto as it appears in the Debenture Register (or upon written notice, by wire transfer in
immediately available funds, if such Person is entitled to Interest on aggregate principal in
excess of $2 million) or (ii) on any Global Debenture by wire transfer of immediately available
funds to the account of the Depositary or its nominee. The term “record date” with respect to any
interest payment date shall mean the March 1 or September 1 preceding the applicable March 15 or
September 15 interest payment date, respectively.


 


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(c) Any Interest on any Debenture that is payable, but is not paid or duly provided for, on
any March 15 or September 15, pursuant to the terms set forth herein (“Defaulted Interest”) shall
forthwith cease to be payable to the Debentureholder on the relevant record date by virtue of his
having been such Debentureholder, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in Section 2.03(c)(i) and Section 2.03(c)(ii) below:




(i) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Debentures (or their respective Predecessor Debentures) are registered at
the close of business on a special record date for the payment of such Defaulted Interest,
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 on each Debenture and the
date of the proposed payment (which shall be not less than twenty-five (25) days after the
receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier
date), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Section 2.03(c)(i) provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest that shall be not more than fifteen (15)
days and not less than ten (10) days prior to the date of the proposed payment, and not
less than ten (10) 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 mailed, first-class
postage prepaid, to each Debentureholder at his address as it appears in the Debenture
Register, not less than ten (10) days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered at the close of
business on such special record date and shall no longer be payable pursuant to the
following Section 2.03(c)(ii) of this Section 2.03.




(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Debentures may be listed or designated for issuance, and
upon such notice as may be required by such exchange or automated quotation system, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this
Section 2.03(c)(ii), such manner of payment shall be deemed practicable by the Trustee.


 


14









 





Section 2.04. Execution of Debentures. The Debentures shall be signed in the name and on
behalf of the Company by the manual or facsimile signature of its Chief Executive Officer,
President or any Vice President (whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”). Only such Debentures as shall bear thereon a
certificate of authentication substantially in the form set forth on the form of Debenture attached
as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the
Trustee as provided by Section 15.10), shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating
agent) upon any Debenture executed by the Company shall be conclusive evidence that the Debenture
so authenticated has been duly authenticated and delivered hereunder and that the Debentureholder
is entitled to the benefits of this Indenture.



In case any officer of the Company who shall have signed any of the Debentures shall cease to
be such officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debentures nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Debentures had not ceased to
be such officer of the Company, and any Debenture may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Debenture, shall be the proper
officers of the Company, although at the date of the execution of this Indenture any such person
was not such an officer.



Section 2.05. Exchange and Registration of Transfer of Debentures; Restrictions on Transfer.



(a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 4.02 being herein sometimes collectively referred to as the “Debenture Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Debenture Register shall be in
written form or in any form capable of being converted into written form within a reasonably prompt
period of time. The Trustee is hereby appointed “Debenture Registrar” for the purpose of
registering Debentures and transfers of Debentures as herein provided. The Company may appoint one
or more co-registrars in accordance with Section 4.02.



Upon surrender for registration of transfer of any Debenture to the Debenture Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any authorized denominations
and of a like aggregate principal amount and bearing such restrictive legends as may be required by
this Indenture.


 


15









 





Debentures may be exchanged for other Debentures of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Debentures to be exchanged at any such office or
agency maintained by the Company pursuant to Section 4.02. Whenever any Debentures are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debentures that the Debentureholder making the exchange is entitled to receive bearing
registration numbers not contemporaneously Outstanding.



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



All Debentures presented or surrendered for registration of transfer or for exchange,
repurchase or conversion shall (if so required by the Company or the Debenture Registrar) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Company, and the Debentures shall be duly executed by the Debentureholder thereof or his
attorney duly authorized in writing.



No service charge shall be made to any Debentureholder for any registration of, transfer or
exchange of Debentures, but the Company and the Debenture Registrar may require payment by the
Debentureholder of a sum sufficient to cover any tax, assessment or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of Debentures.



Neither the Company nor the Trustee nor any Debenture Registrar shall be required to exchange
or register a transfer of any Debentures or portions thereof (a) tendered for repurchase (and not
withdrawn) pursuant to ARTICLE 3, or (b) surrendered for conversion pursuant to ARTICLE 14.



(b) The following provisions shall apply only to Global Debentures:




(i) Each Global Debenture authenticated under this Indenture shall be registered in
the name of the Depositary or a nominee thereof and delivered to such Depositary or a
nominee thereof or Custodian therefor, and each such Global Debenture shall constitute a
single Debenture for all purposes of this Indenture.


 


16









 






(ii) Notwithstanding any other provision in this Indenture, no Global Debenture may
be exchanged in whole or in part for Debentures registered, and no transfer of a Global
Debenture in whole or in part may be registered, in the name of any Person other than the
Depositary or a nominee thereof unless (1) the Depositary (I) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global Debenture and a
successor depositary has not been appointed by the Company within ninety (90) days or (II)
has ceased to be a clearing agency registered under the Exchange Act and a successor
clearing agency has not been appointed by the Company within ninety (90) days, (2) an
Event of Default has occurred and is continuing or (3) the Company, in its sole
discretion, notifies the Trustee in writing that it no longer wishes to have all the
Debentures represented by Global Debentures. Any Global Debenture exchanged pursuant to
clause (A) or (B) above shall be so exchanged in whole and not in part and any Global
Debenture exchanged pursuant to clause (C) above may be exchanged in whole or from time to
time in part as directed by the Company. Any Debenture issued in exchange for a Global
Debenture or any portion thereof shall be a Global Debenture; provided that any such
Debenture so issued that is registered in the name of a Person other than the Depositary
or a nominee thereof shall not be a Global Debenture.




(iii) Securities issued in exchange for a Global Debenture or any portion thereof
pursuant to Section 2.05(b)(ii) above shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate principal amount equal to that of
such Global Debenture or portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder. Any Global Debenture to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Debenture Registrar. With regard to any
Global Debenture to be exchanged in part, either such Global Debenture 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 Debenture, 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 make available for delivery the Debenture
issuable on such exchange to or upon the written order of the Depositary or an authorized
representative thereof.




(iv) In the event of the occurrence of any of the events specified in Section
2.05(b)(ii) above, the Company will promptly make available to the Trustee a reasonable
supply of certificated Debentures in definitive, fully registered form, without interest
coupons.


 


17









 






(v) Neither any members of, or participants in, the Depositary (“Agent Members”) nor
any other Persons on whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Debenture registered in the name of the Depositary or
any nominee thereof, 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 Debenture for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or 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 Debentureholder of any Debenture.




(vi) At such time as all interests in a Global Debenture have been repurchased,
converted, canceled or exchanged for Debentures in certificated form, such Global
Debenture shall, upon receipt thereof, be canceled by the Trustee in accordance with
standing procedures and instructions existing between the Depositary and the Custodian.
At any time prior to such cancellation, if any interest in a Global Debenture is
repurchased, converted, canceled or exchanged for Debentures in certificated form, the
principal amount of such Global Debenture shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Custodian, be
appropriately reduced, and an endorsement shall be made on such Global Debenture, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction.



(c) The Company and the Trustee shall have no responsibility or obligation to any Agent
Members or any other Person with respect to the accuracy of the books or records, or the acts or
omissions, of the Depositary or its nominee or of any participant or member thereof, with respect
to any ownership interest in the Debentures, with respect to performance by the Depositary or any
Agent Members of their respective obligations under the rules and procedures governing their
operations or with respect to the delivery to any Agent Member or other Person (other than the
Depositary) of any notice or the payment of any amount, under or with respect to such Debentures.
All notices and communications to be given to the Debentureholder and all payments to be made to
Debentureholders under the Debentures shall be given or made only to or upon the order of the
registered Debentureholders (which shall be the Depositary or its nominee in the case of a Global
Debenture). The rights of beneficial owners in any Global Debenture shall be exercised only
through the Depositary subject to the customary procedures of the Depositary. The Company and the
Trustee may rely and shall be fully protected in relying upon information furnished by the
Depositary with respect to its Agent Members.


 


18









 





The Company and the Trustee shall have no obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer imposed under this Indenture or under applicable
law with respect to any transfer of any interest in any Debenture (including any transfers between
or among Agent Members in any Global Indenture) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.



Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures. In case any Debenture shall
become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its written request the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and make available for delivery, a new Debenture, bearing a number not
contemporaneously Outstanding, in exchange and substitution for the mutilated Debenture, or in lieu
of and in substitution for the Debenture so destroyed, lost or stolen. In every case, the
applicant for a substituted Debenture shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be required by them to
save each of them harmless for any loss, liability, cost or expense caused by or connected with
such substitution, and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to
their satisfaction of the destruction, loss or theft of such Debenture and of the ownership
thereof.



Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and evidence, as described in the preceding paragraph, the
Trustee or such authenticating agent may authenticate any such substituted Debenture and make available for delivery such Debenture. Upon the
issuance of any substituted Debenture, the Company may require the payment by the Holder of a sum
sufficient to cover any tax, assessment or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debenture that has
matured or is about to mature or has been surrendered for repurchase on a Designated Event
Repurchase Date (and not withdrawn) or is to be converted into Common Stock shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Debenture), as the case may be, if the applicant for such
payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or in connection with such
substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to
the Company, the Trustee and, if applicable, any paying agent or Conversion Agent evidence to their
satisfaction of the destruction, loss or theft of such Debenture and of the ownership thereof.


 


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Every substitute Debenture issued pursuant to the provisions of this Section 2.06 by virtue of
the fact that any Debenture is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debenture shall be found at
any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations
set forth in) this Indenture equally and proportionately with any and all other Debentures duly
issued hereunder. To the extent permitted by law, all Debentures shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement or
payment or conversion or repurchase of mutilated, destroyed, lost or stolen Debentures and shall
preclude any and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or conversion or
repurchase of negotiable instruments or other securities without their surrender.



Section 2.07. Temporary Debentures. Pending the preparation of Debentures in certificated
form, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon the written request of the Company, authenticate and deliver temporary Debentures
(printed or lithographed). Temporary Debentures shall be issuable in any authorized denomination,
and substantially in the form of the Debentures in certificated form, but with such omissions,
insertions and variations as may be appropriate for temporary Debentures, all as may be determined
by the Company. Every such temporary Debenture shall be executed by the Company and authenticated
by the Trustee or such authenticating agent upon the same conditions and in substantially the same
manner, and with the same effect, as the Debentures in certificated form. Without unreasonable
delay, the Company will execute and deliver to the Trustee or such authenticating agent Debentures
in certificated form and thereupon any or all temporary Debentures may be surrendered in exchange
therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such
authenticating agent shall authenticate and make available for delivery in exchange for such
temporary Debentures an equal aggregate principal amount of Debentures in certificated form. Such
exchange shall be made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Debentures shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as Debentures in certificated form
authenticated and delivered hereunder.



Section 2.08. Cancellation of Debentures. All Debentures surrendered for the purpose of
payment, repurchase, conversion, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent or any Debenture Registrar or the Conversion Agent, be surrendered to
the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly
canceled by it, and no Debentures shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee shall dispose of such canceled Debentures in
accordance with its customary procedures. If the Company shall acquire any of the Debentures, such
acquisition shall not operate as a repurchase or satisfaction of the indebtedness represented by
such Debentures unless and until the same are delivered to the Trustee for cancellation.


 


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Section 2.09. CUSIP Numbers. The Company in issuing the Debentures may use “CUSIP” numbers
(if then generally in use). The Company will promptly notify the Trustee of any change in the
“CUSIP” numbers.



ARTICLE 3

Repurchase Of Debentures




Section 3.01. Repurchase at Option of Holders Upon a Designated Event.



(a) If there shall occur a Designated Event at any time prior to maturity of the Debentures,
then each Debentureholder shall have the right, at such Debentureholder’s option, to require the
Company to repurchase all of such Debentureholder’s Debentures, or any portion thereof that is a
multiple of $1,000 principal amount, on a date designated by the Company (the “Designated Event
Repurchase Date”) that is not less than twenty (20) nor more than thirty-five (35) Business Days
after the date of the Designated Event Notice for such Designated Event (or, if such day is not a
Business Day, the next succeeding Business Day) at a repurchase price equal to one hundred percent
(100%) of the principal amount thereof, together with accrued and unpaid Interest to, but
excluding, the Designated Event Repurchase Date; provided that if such Designated Event Repurchase
Date falls after a record date and on or prior the corresponding interest payment date, then the
Interest payable on such interest payment date shall be paid to the holders of record of the
Debentures on the applicable record date instead of the holders surrendering the Debentures for
repurchase.



(b) On or before the 20th day after the occurrence of a Designated Event, the Company or at
its written request (which must be received by the Trustee at least five (5) Business Days prior to
the date the Trustee is requested to give notice as described below, unless the Trustee shall agree
in writing to a shorter period), the Trustee, in the name of and at the expense of the Company,
shall mail or cause to be mailed to all holders of record on the date of the Designated Event a
notice (the “Designated Event Notice”) of the occurrence of such Designated Event and of the
repurchase right at the option of the holders arising as a result thereof; provided that if the
Company shall give such Designated Event Notice, it shall also give written notice of the
Designated Event to the Trustee by first class mail. Such Designated Event Notice, if mailed in
the manner herein provided, shall be conclusively presumed to have been duly given, whether or not
the Debentureholder receives such Designated Event Notice. In any case, failure to give such
notice by mail or any defect in the notice to the Debentureholder shall not affect the validity of
the Designated Event Notice for the Debentureholder of any other Debenture. Concurrently with the
mailing of



 


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any such Designated Event Notice, the Company shall issue a press release announcing
such Designated Event, the form and content of which press release shall be determined by the
Company in its sole discretion. The failure to issue any such press release or any defect therein
shall not affect the validity of the Designated Event Notice or any of the proceedings for the
repurchase of any Debenture relating thereto. If the Company shall give such notice, the Company
shall also deliver a copy of the Designated Event Company Notice to the Trustee at such time as it
is mailed to Debentureholders. Concurrently with the mailing of any Designated Event Notice, the
Company shall issue a press release announcing such Designated Event referred to in the Designated
Event Notice, the form and content of which press release shall be determined by the Company in its
sole discretion. The failure to issue any such press release or any defect therein shall not
affect the validity of the Designated Event Notice or any proceedings for the repurchase of any
Debenture that any Debentureholder may elect to have the Company repurchase as provided in this
Section 3.01.



Each Designated Event Notice shall specify the circumstances constituting the Designated
Event, the Designated Event Repurchase Date, the price at which the Company shall be obligated to
repurchase Debentures, that the Debentureholder must exercise the repurchase right on or prior to
the close of business on the Designated Event Repurchase Date (the “Designated Event Expiration
Time”), that the Debentureholder shall have the right to withdraw any Debentures surrendered prior
to the Designated Event Expiration Time, if the Debentures are then convertible, that Debentures as
to which an Option to Elect Repurchase Upon a Designated Event has been given may be converted only
if the Option to Elect Repurchase Upon a Designated Event is withdrawn in accordance with the terms
of this Indenture, a description of the procedure that any Debentureholder must follow to exercise
such repurchase right and to withdraw any surrendered Debentures, the place or places where the
Debentureholder is to surrender such Debentureholder’s Debentures, the amount of Interest accrued
and unpaid on each Debenture to the Designated Event Repurchase Date and the CUSIP number or numbers of the Debentures (if then generally in use).



No failure of the Company to give the foregoing notices and no defect therein shall limit the
Debentureholders’ repurchase rights or affect the validity of the proceedings for the repurchase of
the Debentures pursuant to this Section 3.01.



(c) Repurchases of Debentures under this Section 3.01 shall be made, at the option of the
Debentureholder thereof, upon:




(i) delivery to the Trustee (or other paying agent appointed by the Company) by a
Debentureholder of a duly completed and executed notice (the “Option to Elect Repurchase
Upon a Designated Event”) in the form set forth on the reverse of the Debenture prior to
the Designated Event Expiration Time; and


 


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(ii) delivery or book-entry transfer of the Debentures to the Trustee (or other
paying agent appointed by the Company) at any time simultaneous with or after delivery of
the Option to Elect Repurchase Upon a Designated Event (together with all necessary
endorsements) at the Corporate Trust Office of the Trustee (or other paying agent
appointed by the Company) in the Borough of Manhattan as provided in Section 4.02, such
delivery being a condition to receipt by the Debentureholder of the repurchase price
therefor; provided that such repurchase price shall be so paid pursuant to this Section
3.01 only if the Debenture so delivered to the Trustee (or other paying agent appointed by
the Company) shall conform in all respects to the description thereof in the related
Option to Elect Repurchase Upon a Designated Event.



The Company shall purchase from the Debentureholder thereof, pursuant to this Section 3.01, a
portion of a Debenture, if the principal amount of such portion is $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to the purchase of all of a Debenture also apply
to the purchase of such portion of such Debenture.



Upon presentation of any Debenture repurchased in part only, the Company shall execute and,
upon the Company’s written direction to the Trustee, the Trustee shall authenticate and make
available for delivery to the Debentureholder thereof, at the expense of the Company, a new
Debenture or Debentures, of authorized denominations, in aggregate principal amount equal to the
unrepurchased portion of the Debentures presented.



Notwithstanding anything herein to the contrary, any Debentureholder delivering to the Trustee
(or other paying agent appointed by the Company) the Option to Elect Repurchase Upon a Designated
Event contemplated by this Section 3.01 shall have the right to withdraw such Option to Elect
Repurchase
Upon a Designated Event at any time prior to the Designated Event Expiration Time by delivery
of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company)
in accordance with Section 3.01(d) below.



The Trustee (or other paying agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Option to Elect Repurchase Upon a Designated Event or written notice of
withdrawal thereof.



For a Debenture, other than a Global Debenture to be so repurchased at the option of the
Debentureholder, the Company must receive at the office or agency of the Company maintained for
that purpose or, at the option of such Debentureholder, the Corporate Trust Office, such Debenture
with the form entitled “Option to Elect Repurchase Upon A Designated Event” on the reverse


 


23









 





thereof duly completed, together with such Debentures duly endorsed for transfer, on or before the
Designated Event Expiration Time. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Debenture for repurchase shall be determined by the Company, whose
determination shall be final and binding absent manifest error.



(d) An Option to Elect Repurchase Upon a Designated Event may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee (or other paying agent
appointed by the Company) in accordance with the Option to Elect Repurchase Upon a Designated Event
at any time prior to the Designated Event Expiration Time, specifying:




(i) the certificate number, if any, of the Debenture in respect of which such notice
of withdrawal is being submitted, or the appropriate Depositary information if the
Debenture in respect of which such notice of withdrawal is being submitted is represented
by a Global Debenture,




(ii) the principal amount of the Debenture with respect to which such notice of
withdrawal is being submitted, and




(iii) the principal amount, if any, of such Debenture that remains subject to the
original Option to Elect Repurchase Upon a Designated Event and that has been or will be
delivered for purchase by the Company.



(e) On or prior to the Designated Event Repurchase Date, the Company shall deposit with the
Trustee or with one or more paying agents (or, if the Company is acting as its own paying agent,
set aside, segregate and hold in trust as provided in Section 4.04) an amount of money sufficient
to repurchase on the Designated Event Repurchase Date all the Debentures to be repurchased on such
date at the appropriate repurchase price, together with accrued and unpaid Interest to, but
excluding, the Designated Event Repurchase Date; provided that if such payment is made on the
Designated Event Repurchase Date it must be received by the Trustee or paying agent, as the case
may be, by 10:00 a.m. New
York City time, on such date. Payment for Debentures surrendered for repurchase (and not
withdrawn) prior to the Designated Event Expiration Time will be made promptly (but in no event
more than five (5) Business Days) following the later of (x) Designated Event Repurchase Date, and
(y) the time of book-entry transfer or delivery of the Debenture surrendered for repurchase, by (i)
mailing checks for the amount payable to the holders of such Debentures entitled thereto as they
shall appear in the Debenture Register or (ii) on any Global Debenture by wire transfer of
immediately available funds to the account of the Depositary or its nominee.


 


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If on the Business Day following the Designated Event Repurchase Date the Trustee (or other
paying agent appointed by the Company) holds money sufficient to repurchase all the Debentures or
portions thereof that are to be purchased as of the Designated Event Repurchase Date, then as of
the Designated Event Repurchase Date (i) the Debentures will cease to be Outstanding, (ii) Interest
on the Debentures will cease to accrue, and (iii) all other rights of the holders of such
Debentures will terminate, whether or not book-entry transfer of the Debentures has been made or
the Debentures have been delivered to the Trustee or paying agent, other than the right to receive
the repurchase price upon delivery of the Debentures.



(f) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules
under the Exchange Act to the extent then applicable in connection with the repurchase rights of
the holders of Debentures in the event of a Designated Event.



Section 3.02. Repayment to the Company. The Trustee (or other paying agent appointed by the
Company) shall return to the Company any cash that remains unclaimed as provided in the Debentures,
together with Interest, if any, thereon, held by them for the payment of the repurchase price;
provided that to the extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.01 exceeds the aggregate purchase price of the Debentures or portions thereof that the
Company is obligated to purchase as of the Designated Event Repurchase Date, then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following the Designated Event
Repurchase Date, the Trustee shall return any such excess to the Company together with interest, if
any, thereon.



Section 3.03. Acceleration; Payments To Debentureholders. In the event of the acceleration of
the Debentures because of an Event of Default, no payment or distribution shall be made to the
Trustee or any Debentureholder in respect of the principal of or Interest on the Debentures
submitted for repurchase in accordance with Section 3.01 as provided in this Indenture, until such
acceleration is rescinded in accordance with the terms of this Indenture.



ARTICLE 4

Particular Covenants Of The Company




Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will duly and punctually pay or cause to be paid the principal of (including the repurchase price
upon repurchase pursuant to ARTICLE 3), and Interest on, each of the Debentures at the places, at
the respective times and in the manner provided herein and in the Debentures.



Section 4.02. Maintenance of Office or Agency. The Company will maintain an office or agency
in the Borough of Manhattan, the City of New York, where the Debentures may be surrendered for
registration of transfer or exchange or for presentation for payment or for conversion or
repurchase and where notices and demands to or upon the Company in respect of the Debentures and
this



 


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Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not designated or appointed by
the Trustee. If at any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office or the corporate trust
office of the Trustee in The Borough of Manhattan, which office is located at: U.S. Bank National
Association, Attention: Corporate Trust Administration, 100 Wall Street, Suite 1600, New York, NY
10005.



The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Debentures may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. The Company will give prompt written notice of any
such designation or rescission and of any change in the location of any such other office or
agency.



The Company hereby initially designates the Trustee as paying agent, Debenture Registrar,
Custodian and Conversion Agent and each of the Corporate Trust Office and the office of agency of
the Trustee in The Borough of Manhattan, shall be considered as one such office or agency of the
Company for each of the aforesaid purposes.



So long as the Trustee is the Debenture Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 7.10(a) and the third paragraph of Section 7.11. If
co-registrars have been appointed in accordance with this Section, the Trustee shall mail such
notices only to the Company and the holders of Debentures it can identify from its records.



Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.



Section 4.04. Provisions as to Paying Agent.



(a) If the Company shall appoint a paying agent other than the Trustee, or if the Trustee
shall appoint such a paying agent, the Company will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:




(1) that it will hold all sums held by it as such agent for the payment of the
principal of or Interest on the Debentures (whether such sums have been paid to it by the
Company or by any other obligor on the Debentures) in trust for the benefit of all of the
Debentureholders;


 


26









 






(2) that it will give the Trustee notice of any failure by the Company (or by any
other obligor on the Debentures) to make any payment of the principal of or Interest on
the Debentures when the same shall be due and payable; and




(3) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



The Company shall, on or before each due date of the principal of or Interest on the
Debentures, deposit with the paying agent a sum (in funds that are immediately available on the due
date for such payment) sufficient to pay such principal or Interest, and (unless such paying agent
is the Trustee) the Company will promptly notify the Trustee of any failure to take such action;
provided that if such deposit is made on the due date, such deposit shall be received by the paying
agent by 10:00 a.m. New York City time, on such date.



(b) If the Company shall act as its own paying agent, it will, on or before each due date of
the principal of or Interest on the Debentures, set aside, segregate and hold in trust for the
benefit of all Debentureholders a sum sufficient to pay such principal or Interest so becoming due
and will promptly notify the Trustee of any failure to take such action and of any failure by the
Company (or any other obligor under the Debentures) to make any payment of the principal of or
Interest on the Debentures when the same shall become due and payable.



(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any paying
agent hereunder as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent to the Trustee,
the Company or such paying agent shall be released from all further liability with respect to such
sums.



(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Section 12.03 and Section 12.04.



The Trustee shall not be responsible for the actions of any other paying agents (including the
Company if acting as its own paying agent) and shall have no control of any funds held by such
other paying agents.



Section 4.05. Existence. Subject to ARTICLE 11, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and rights (charter
and statutory); provided that the Company shall not be required to preserve any such right if the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any material respect to
the Debentureholders.


 


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Section 4.06. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of or Interest on
the Debentures as contemplated herein, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.



Section 4.07. Compliance Certificate. The Company shall deliver to the Trustee, within one
hundred twenty (120) days after the end of each fiscal year of the Company, a certificate signed by
either the principal executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signer 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 the status
thereof of which the signer may have knowledge.



The Company will deliver to the Trustee, forthwith upon becoming aware of (i) any default in
the performance or observance of any covenant, agreement or condition contained in this Indenture,
or (ii) any Event of Default, an Officers’ Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is taking or proposes to
take with respect thereto.



Any notice required to be given under this Section 4.07 shall be delivered to a Responsible
Officer of the Trustee at its Corporate Trust Office.



Section 4.08. Escrow Agreement. The Company shall maintain the Escrow Agreement in full force
and effect prior to its expiration in accordance with its terms, shall comply with the terms
thereof and shall not amend the Escrow Agreement in any manner adverse to the holders of the
Debentures without the consent of the holders of not less than fifty percent (50%) in aggregate
principal amount of the Debentures then Outstanding hereunder determined in accordance with Section
8.04. Simultaneously with the original issuance of the Debentures, the Company shall deliver to
the Escrow Agent for deposit in the Escrow Account cash in the amount of $19,009,080.


 


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Section 4.09. Limitation on Exchange Offers for Existing Debentures. Following the issuance
of the Debentures, the Company expects to have outstanding approximately $31,289,000 in original
principal amount of its 2.625% Convertible Senior Debentures due 2024. In the event that the
Company issues securities of the Company in exchange for any of the 2.625% Convertible Senior
Debentures due 2024, then the Company shall also offer such newly-issued securities to each of the
Debentureholders in exchange for each such Debentureholder’s Debentures on substantially the same
terms as the terms offered to the holders of such 2.625% Convertible Senior Debentures due 2024.



ARTICLE 5

Debentureholders’ Lists And Reports By The Company And The Trustee




Section 5.01. Debentureholders’ Lists. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee, semiannually, not more than fifteen (15) days after each
March 1 and September 1 in each year beginning with September 1, 2010, and at such other times as
the Trustee may request in writing, within thirty (30) days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of Debentures as of a date not more
than fifteen (15) days (or such other date as the Trustee may reasonably request in order to so
provide any such notices) prior to the time such information is furnished, except that no such list
need be furnished by the Company to the Trustee so long as the Trustee is acting as the sole
Debenture Registrar.



Section 5.02. Preservation And Disclosure Of Lists. The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders
of Debentures contained in the most recent list furnished to it as provided in Section 5.01 or
maintained by the Trustee in its capacity as Debenture Registrar or co-registrar in respect of the
Debentures, if so acting. The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.



(a) The rights of Debentureholders to communicate with other holders of Debentures with
respect to their rights under this Indenture or under the
Debentures, and the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.



(b) Every Debentureholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of holders of
Debentures made pursuant to the Trust Indenture Act.


 


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Section 5.03. Reports By Trustee.



(a) Within sixty (60) days after September 15 of each year commencing with the year 2010, the
Trustee shall transmit to holders of Debentures such reports dated as of September 15 of the year
in which such reports are made concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. In the event that no events have occurred under the applicable sections of the Trust
Indenture Act the Trustee shall be under no duty or obligation to provide such reports.



(b) A copy of such report shall, at the time of such transmission to holders of Debentures, be
filed by the Trustee with each stock exchange and automated quotation system upon which the
Debentures are listed and with the Company. The Company will promptly notify the Trustee in
writing when the Debentures are listed on any stock exchange or automated quotation system or
delisted therefrom.



Section 5.04. Reports by Company. The Company shall file with the Trustee (and the Commission
if at any time after the Indenture becomes qualified under the Trust Indenture Act), and transmit,
or cause the Trustee to transmit, to holders of Debentures, such information, documents and other
reports and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act, whether or not the Debentures are governed
by such Act; provided that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within fifteen (15) days after the same is so required to be filed with the Commission. Delivery
of such reports, information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an
Officers’ Certificates).




 


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ARTICLE 6

Remedies Of The Trustee And Debentureholders On An Event Of

Default




Section 6.01. Events Of Default. In case one or more of the following Events of Default
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be 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) shall have occurred and be
continuing:



(a) default in the payment of the principal of any of the Debentures as and when the same
shall become due and payable either at maturity or in connection with any repurchase, by
acceleration or otherwise; or



(b) default in the payment of any installment of Interest upon any of the Debentures as and
when the same shall become due and payable, and continuance of such default for a period of thirty
(30) days; or



(c) default in the Company’s obligation to deliver Common Stock, cash or other property
following the exercise by the Debentureholder or the Company, as the case may be, of the right to
convert such Debentures pursuant to and in accordance with ARTICLE 14 and the continuance of such
default for a period of ten (10) Business Days;



(d) default in the Company’s obligation to provide a Designated Event Notice as provided in
Section 3.01; or



(e) default in the payment of Indebtedness when due at stated maturity or upon acceleration by
the Company or any subsidiary of the Company, all or substantially all of the outstanding voting
securities of which are owned, directly or indirectly, by the Company, where the aggregate
principal amount with respect to which the default has occurred exceeds $25 million and such
Indebtedness has not been discharged or such acceleration has not been rescinded or annulled within
a period of thirty (30) days after written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by
the holders of at least twenty-five percent (25%) in aggregate principal amount of the Debentures
at the time Outstanding determined in accordance with Section 8.04; or



(f) default in the payment of any final judgments aggregating in excess of $25 million by the
Company or any subsidiary of the Company, all or substantially all of the outstanding voting
securities of which are owned, directly or indirectly, by the Company; or


 


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(g) failure on the part of the Company to observe or perform any other of the covenants or
agreements on the part of the Company in the Debentures or in this Indenture (other than a covenant
or agreement a default in whose
performance or whose breach is elsewhere in this Section 6.01 specifically dealt with)
continued for a period of sixty (60) days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or
the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent
(25%) in aggregate principal amount of the Debentures at the time Outstanding determined in
accordance with Section 8.04; or



(h) the Escrow Agreement ceases to be in full force and effect or enforceable prior to its
expiration in accordance with its terms or there is less than the Escrow Amount in the Escrow
Account; or



(i) the Company issues securities of the Company in exchange for any of the 2.625% Convertible
Senior Debentures due 2024 and does not in connection therewith comply with Section 4.09 hereof; or



(j) the Company shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any substantial part of
the property of the Company, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against the
Company, or shall make a general assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due; or



(k) an involuntary case or other proceeding shall be commenced against the Company seeking
liquidation, reorganization or other relief with respect to the Company or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) consecutive days;



then, and in each and every such case (other than an Event of Default specified in Section 6.01(j)
or Section 6.01(k)), unless the principal of all of the Debentures shall have already become due
and payable, either the Trustee or the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Debentures then Outstanding hereunder determined in accordance
with Section 8.04, by notice in writing to the Company (and to the Trustee if given by
Debentureholders), may declare the principal of all the Debentures and the Interest accrued and
unpaid thereon to be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture or in the Debentures
contained to the contrary notwithstanding. If an Event of Default specified in Section 6.01(i)
or 6.01(j)



 


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occurs, the principal of all the Debentures and the Interest accrued and unpaid
thereon shall be immediately and automatically due and payable without necessity of further action.
This provision, however, is subject to the conditions that if, at any time after the principal of
the Debentures shall have been so declared due and payable, and before any judgment or decree for
the payment of the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of Interest upon all Debentures and the principal of any and all Debentures that shall
have become due otherwise than by acceleration (with interest on overdue installments of Interest
(to the extent that payment of such interest is enforceable under applicable law) and on such
principal at the rate borne by the Debentures, to the date of such payment or deposit) and amounts
due to the Trustee pursuant to Section 7.06, and if any and all defaults under this Indenture,
other than the nonpayment of principal of and accrued and unpaid Interest on Debentures that shall
have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and
in every such case the holders of a majority in aggregate principal amount of the Debentures then
Outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events
of Default and rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default or Event of
Default, or shall impair any right consequent thereon. The Company shall notify in writing a
Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any Event of Default.



In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the holders of Debentures, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the Company, the holders of Debentures, and the Trustee shall continue as though no such
proceeding had been taken.



Section 6.02. Payments of Debentures on Default; Suit Therefor. The Company covenants that
(a) in case default shall be made in the payment of any installment of Interest upon any of the
Debentures as and when the same shall become due and payable, and such default shall have continued
for a period of thirty (30) days, or (b) in case default shall be made in the payment of the
principal of any of the Debentures as and when the same shall have become due and payable, whether
at maturity of the Debentures or in connection with any repurchase, by acceleration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of all
Debentureholders, the whole amount that then shall have become due and payable on all such
Debentures for principal and Interest, as the case may be, with interest upon the overdue principal
and (to the extent that payment of such interest is enforceable under applicable law) upon the
overdue installments of Interest at the rate borne



 


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by the Debentures, plus one percent (1%) and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection,
including reasonable compensation to the Trustee, its agents, attorneys and counsel, and all
other amounts due the Trustee under Section 7.06. Until such demand by the Trustee, the Company
may pay the principal of and Interest on the Debentures to the registered holders, whether or not
the Debentures are overdue.



In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Debentures and collect in
the manner provided by law out of the property of the Company or any other obligor on the
Debentures wherever situated the monies adjudged or decreed to be payable.



In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Debentures under Title 11 of the United States Code, or any
other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
case of any other judicial proceedings relative to the Company or such other obligor upon the
Debentures, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debentures shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and Interest owing and unpaid in respect of the Debentures, and, in case of any
judicial proceedings, to 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 of the Debentureholders
allowed in such judicial proceedings relative to the Company or any other obligor on the
Debentures, its or their creditors, or its or their property, and to collect and receive any monies
or other property payable or deliverable on any such claims, and to distribute the same after the
deduction of any amounts due the Trustee under Section 7.06, and to take any other action with
respect to such claims, including participating as a member of any official committee of creditors,
as it reasonably deems necessary or advisable, and, unless prohibited by law or applicable
regulations, and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Debentureholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Debentureholders, to pay to the Trustee any amount due it for reasonable



 


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compensation, expenses, advances and disbursements, including counsel fees and expenses incurred by
it up to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out
of the estate in any such proceedings shall be denied for any reason, payment of the same
shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends,
monies, securities and other property that the holders of the Debentures may be entitled to receive
in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.



All rights of action and of asserting claims under this Indenture, or under any of the
Debentures, may be enforced by the Trustee without the possession of any of the Debentures, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the holders of the Debentures.



In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Debentures, and it shall not be necessary to make any holders
of the Debentures parties to any such proceedings.



Section 6.03. Application of Monies Collected By Trustee. Any monies collected by the Trustee
pursuant to this ARTICLE 6 shall be applied in the order following, at the date or dates fixed by
the Trustee for the distribution of such monies, upon presentation of the several Debentures, and
stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:



FIRST: To the payment of all amounts due the Trustee under Section 7.06;



SECOND: In case the principal of the Outstanding Debentures shall not have become due and be
unpaid, to the payment of Interest on the Debentures in default in the order of the maturity of the
installments of such Interest, with interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of Interest at the rate borne by the Debentures, such
payments to be made ratably to the Persons entitled thereto;



THIRD: In case the principal of the Outstanding Debentures shall have become due, by
declaration or otherwise, and be unpaid to the payment of the whole amount then owing and unpaid
upon the Debentures for principal and Interest, with interest on the overdue principal and (to the
extent that such interest has been collected by the Trustee) upon overdue installments of Interest
at the rate borne by the Debentures, and in case such monies shall be insufficient to pay in full
the whole amounts so due and unpaid upon the Debentures, then to the



 


35









 






payment of such principal and
Interest without preference or priority of principal over Interest, or of Interest over principal,
or of any installment of Interest over any other installment of Interest, or of any Debenture over
any other Debenture, ratably to the aggregate of such principal and accrued and unpaid Interest;
and



FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.



Section 6.04. Proceedings by Debentureholder. No Debentureholder shall have any right by
virtue of or by reference to any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such Debentureholder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than twenty-five percent (25%) in aggregate principal amount of
the Debentures then Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee during such sixty (60) day period pursuant to Section
6.07; it being understood and intended, and being expressly covenanted by the taker and every
Debentureholder with every other taker and Debentureholder and the Trustee, that no one or more
holders of Debentures shall have any right in any manner whatever by virtue of or by reference to
any provision of this Indenture to affect, disturb or prejudice the rights of any other
Debentureholder, or to obtain or seek to obtain priority over or preference to any other such
Debentureholder, or to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Debentures (except as otherwise
provided herein). For the protection and enforcement of this Section 6.04, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.



Notwithstanding any other provision of this Indenture and any provision of any Debenture, the
right of any Debentureholder to receive payment of the principal of (including the repurchase price
upon repurchase pursuant to ARTICLE 3 and accrued and unpaid Interest on such Debenture, on or
after the respective due dates expressed in such Debenture or in the event of repurchase, or to
institute suit for the enforcement of any such payment on or after such respective dates against
the Company shall not be impaired or affected without the consent of such Debentureholder.


 


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Anything in this Indenture or the Debentures to the contrary notwithstanding, any
Debentureholder, without the consent of either the Trustee or the any other Debentureholder, in its
own behalf and for its own benefit, may enforce, and may institute and maintain any proceeding
suitable to enforce, its rights of conversion as provided herein.



Section 6.05. Proceedings By Trustee. In case of an Event of Default, the Trustee may, in its
discretion, proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



Section 6.06. Remedies Cumulative And Continuing. Except as provided in Section 2.06, all
powers and remedies given by this ARTICLE 6 to the Trustee or to the Debentureholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any Debentureholder to
exercise any right or power accruing upon any default or Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein, and, subject to the provisions of Section 6.04, every power
and remedy given by this ARTICLE 6 or by law to the Trustee or to the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Debentureholders.



Section 6.07. Direction of Proceedings and Waiver of Defaults By Majority of Debentureholders.
The holders of a majority in aggregate principal amount of the Debentures at the time Outstanding
determined in accordance with Section 8.04 shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee; provided that (a) such direction shall not be in conflict with
any rule of law or with this Indenture, (b) the Trustee may take any other action that is not
inconsistent with such direction, (c) the Trustee may decline to take any action that would benefit
some Debentureholder to the detriment of other holders of Debentures and (d) the Trustee may
decline to take any action that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Debentures at the time Outstanding determined in
accordance with Section 8.04 may, on behalf of the holders of all of the Debentures, waive any past
default or Event of Default hereunder and its consequences except (i) a default in the payment of
Interest on, or the principal of, the Debentures, (ii) a failure by the Company to convert any
Debentures into



 


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Common Stock, cash or a combination of Common Stock and cash pursuant to ARTICLE
14, (iii) a default in the payment of the repurchase price pursuant to ARTICLE 3, or (iv) in
respect of a covenant or provisions hereof that under ARTICLE 10 cannot be modified or amended
without the consent of the holders of each or all Debentures then Outstanding or affected thereby.
Upon any such waiver, the Company, the Trustee and the holders of the Debentures shall be restored
to their former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by
this Section 6.07, said default or Event of Default shall for all purposes of the Debentures and
this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent
thereon.



Section 6.08. Notice of Defaults. The Trustee shall, within ninety (90) days after a
Responsible Officer of the Trustee has knowledge of the occurrence of a default, mail to all
Debentureholders, as the names and addresses of such holders appear upon the Debenture Register,
notice of all defaults known to a Responsible Officer, unless such defaults shall have been cured
or waived before the giving of such notice; provided that except in the case of default in the
payment of the principal of or Interest on any of the Debentures, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such notice is in the
interests of the Debentureholders.



Section 6.09. Undertaking To Pay Costs. All parties to this Indenture agree, and each
Debentureholder by his acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, 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, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that
such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided that the provisions of this Section
6.09 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Debentureholder, or group of Debentureholders, holding in the aggregate more
than ten percent (10%) in principal amount of the Debentures at the time Outstanding determined in
accordance with Section 8.04, or to any suit instituted by any Debentureholder for the enforcement
of the payment of the principal of or Interest on any Debenture on or after the due date expressed
in such Debenture or to any suit for the enforcement of the right to convert any Debenture in
accordance with the provisions of ARTICLE 14.


 


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ARTICLE 7

The Trustee




Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of
an Event of Default and after the curing of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same
degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.



No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:



(a) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default that may have occurred:




(i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trust Indenture Act, and the Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture and the Trust Indenture Act against the Trustee; and




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



(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining
the pertinent facts;



(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the written direction of the holders of not less than a
majority in principal amount of the Debentures at the time Outstanding determined as provided in
Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture;


 


39









 





(d) whether or not therein provided, every provision of this Indenture relating to the conduct
or affecting the liability of, or affording protection to, the Trustee shall be subject to the
provisions of this Section 7.01;



(e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any paying agent or any records maintained by any co-registrar with respect to the
Debentures;



(f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred; and



(g) the Trustee shall not be deemed to have knowledge of any Event of Default hereunder unless
it shall have been notified in writing of such Event of Default by the Company or the holders of at
least 10% in aggregate principal amount of the Debentures.



None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.



Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section
7.01:



(a) the Trustee may conclusively rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon or other paper or document (whether in its original or facsimile form)
believed by it in good faith to be genuine and to have been signed or presented by the proper party
or parties;



(b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;



(c) the Trustee may consult with counsel of its own selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;


 


40









 





(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Debentureholders pursuant to
the provisions of this Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred therein or thereby;



(e) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee may make such further
inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;



(f) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder;



(g) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;



(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;



(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; and



(j) any permissive right or authority granted to the Trustee shall not be construed as a
mandatory duty.


 


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Section 7.03. No Responsibility For Recitals, Etc. The recitals contained herein and in the
Debentures (except in the Trustee’s certificate of authentication) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture, of the
Debentures or of the Escrow Agreement. The Trustee shall not be accountable for the use or
application by the Company of any Debentures or the proceeds of any Debentures authenticated and
delivered by the Trustee in conformity with the provisions of this Indenture.



Section 7.04. Trustee, Paying Agents, Conversion Agents or Debenture Registrar May Own
Debentures. The Trustee, any paying agent, the Conversion Agent or Debenture Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debentures with the same
rights it would have if it were not Trustee, paying agent, Conversion Agent or Debenture Registrar.



Section 7.05. Monies to Be Held in Trust. Subject to the provisions of Section 12.04, all
monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received. Money held
by the Trustee in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any money received by it
hereunder except as may be agreed in writing from time to time by the Company and the Trustee.



Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all
services rendered by it hereunder in any capacity (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) as mutually agreed to from time
to time in writing between the Company and the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence, willful misconduct, recklessness or bad faith. The Company also covenants to
indemnify the Trustee and any predecessor Trustee (or any officer, director or employee of the
Trustee), in any capacity under this Indenture and its agents and any authenticating agent for, and
to hold them harmless against, any and all loss, liability, damage, claim or reasonable expense
including taxes (other than franchise taxes and taxes based on the income of the Trustee) incurred
without negligence, willful misconduct, recklessness or bad faith on the part of the Trustee or
such officers, directors, employees and agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the reasonable costs and expenses of defending themselves against any
claim (whether asserted by the Company, any Debentureholder or any other Person) of liability in
connection with the exercise or performance of any of its or their powers or duties hereunder. If
the Company



 


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fails to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances under this Section 7.06, the Trustee’s claim shall
be secured by a lien prior to that of the Debentures upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the holders of particular
Debentures. The obligation of the Company under this Section 7.06 shall survive the satisfaction
and discharge of this Indenture.



When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 6.01(j) or Section 6.01(k) with respect to the
Company occurs, the expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar laws.



Section 7.07. Officers’ Certificate As Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of bad faith or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee.



Section 7.08. Conflicting Interests of Trustee. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.



Section 7.09. Eligibility of Trustee. There shall at all times be a Trustee hereunder that
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital and surplus of at
least $50,000,000). If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority, then for the purposes of this
Section 7.09 the combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09,
it shall resign immediately in the manner and with the effect hereinafter specified in this ARTICLE
7.


 


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Section 7.10. Resignation or Removal of Trustee.



(a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and to the holders of Debentures. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment sixty (60) days after the mailing of such notice of resignation to the
Debentureholders, the resigning Trustee may, upon ten (10) Business Days’ notice to the Company and
the Debentureholders, appoint a successor identified in such notice or may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a successor trustee, or,
if any Debentureholder who has been a bona fide Holder of a Debenture or Debentures for at least
six (6) months may, subject to the provisions of Section 6.09, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.



(b) In case at any time any of the following shall occur:




(i) the Trustee shall fail to comply with Section 7.08 after written request therefor
by the Company or by any Debentureholder who has been a bona fide Holder of a Debenture or
Debentures for at least six (6) months; or




(ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 7.09 and shall fail to resign after written request therefor by the Company or by
any such Debentureholder; or




(iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;



then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.09, any Debentureholder who has been a bona fide Holder of a
Debenture or Debentures for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee; provided that if no successor Trustee shall have been
appointed and have accepted appointment sixty (60) days after either the Company or the
Debentureholders has removed the Trustee, or the Trustee resigns, the Trustee so removed may
petition, at the expense of the Company, any court of competent jurisdiction for an appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.


 


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(c) The holders of a majority in aggregate principal amount of the Debentures at the time
Outstanding may at any time remove the Trustee and nominate a successor trustee that shall be
deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of
such nomination, the Company objects thereto, in which case the Trustee so removed or any
Debentureholder, or if such Trustee so removed or any Debentureholder fails to act, the Company,
upon the terms and conditions and otherwise as in Section 7.10(a) provided, may petition any court
of competent jurisdiction for an appointment of a successor trustee.



(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.11.



(e) Notwithstanding the replacement of the Trustee pursuant to this Section 7.10, the
Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section
7.06, execute and deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by such trustee as such,
except for funds held in trust for the benefit of holders of particular Debentures, to secure any
amounts then due it pursuant to the provisions of Section 7.06.



No successor trustee shall accept appointment as provided in this Section 7.11 unless, at the
time of such acceptance, such successor trustee shall be qualified under the provisions of Section
7.08 and be eligible under the provisions of Section 7.09.


 


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Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the
Company (or the former trustee, at the written direction of the Company) shall mail or cause to be
mailed notice of the succession of such trustee hereunder to the holders of Debentures at their
addresses as they shall appear on the Debenture Register. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



Section 7.12. Succession By Merger. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee (including any trust
created by this Indenture), shall be the successor to the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09.



In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Debentures shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have been authenticated,
any successor to the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Debentures in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Debentures or in this Indenture;
provided that the right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Debentures in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.



Section 7.13. Preferential Collection of Claims. If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Debentures), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of the claims against the
Company (or any such other obligor).


 


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ARTICLE 8

The Debentureholders




Section 8.01. Action By Debentureholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Debentures may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be evidenced (a) by any instrument or
any number of instruments of similar tenor executed by Debentureholders in person or by agent or
proxy appointed in writing, or (b) by the record of the holders of Debentures voting in favor
thereof at any meeting of Debentureholders duly called and held in accordance with the provisions
of ARTICLE 9, or (c) by a combination of such instrument or instruments and any such record of such
a meeting of Debentureholders. Whenever the Company or the Trustee solicits the taking of any
action by the holders of the Debentures, the Company or the Trustee may fix in advance of such
solicitation, a date as the record date for determining holders entitled to take such action. The
record date shall be not more than fifteen (15) days prior to the date of commencement of
solicitation of such action.



Section 8.02. Proof of Execution by Debentureholders. Subject to the provisions of Section
7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Debentureholder
or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
The holding of Debentures shall be proved by the registry of such Debentures or by a
certificate of the Debenture Registrar.



The record of any Debentureholders’ meeting shall be proved in the manner provided in Section
9.06.



Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any paying agent, the
Conversion Agent and any Debenture Registrar may deem the Person in whose name such Debenture shall
be registered upon the Debenture Register to be, and may treat it as, the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Debenture
Registrar) for the purpose of receiving payment of or on account of the principal of and Interest
on such Debenture, for conversion of such Debenture and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor the Conversion Agent nor any Debenture Registrar
shall be affected by any notice to the contrary. All such payments so made to any Debentureholder
for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for monies payable upon any such Debenture.




 


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Section 8.04. Company-owned Debentures Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Debentures have concurred in any direction, consent, waiver
or other action under this Indenture, Debentures that are owned by the Company or any other obligor
on the Debentures or any Affiliate of the Company or any other obligor on the
Debentures shall be
disregarded and deemed not to be Outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Debentures that a Responsible Officer knows are so
owned shall be so disregarded. Debentures so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Debentures and that the pledgee is not
the Company, any other obligor on the Debentures or any Affiliate of the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all
Debentures, if any, known by the Company to be owned or held by or for the account of any of the
above described Persons, and, subject to Section 7.01, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Debentures not listed therein are Outstanding for the purpose of any such determination.



Section 8.05. Revocation Of Consents, Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the percentage in aggregate principal
amount of the Debentures specified in this Indenture in connection with such action, any
Debentureholder that is shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee at its Corporate Trust
Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns
such Debenture. Except as aforesaid, any such action taken by any Debentureholder shall be
conclusive and binding upon such Debentureholder and upon all future holders and owners of such
Debenture and of any Debentures issued in exchange or substitution therefor, irrespective of
whether any notation in regard thereto is made upon such Debenture or any Debenture issued in
exchange or substitution therefor.



ARTICLE 9

Meetings Of Debentureholders




Section 9.01. Purpose Of Meetings. A meeting of Debentureholders may be called at any time
and from time to time pursuant to the provisions of this ARTICLE 9 for any of the following
purposes:




(1) to give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any default or
Event of Default hereunder and its consequences, or to take any other action authorized to
be taken by Debentureholders pursuant to any of the provisions of ARTICLE 6;


 


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(2) to remove the Trustee and nominate a successor trustee pursuant to the provisions
of ARTICLE 7;




(3) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 10.02; or




(4) to take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of the Debentures under any other provision of
this Indenture or under applicable law.



Section 9.02. Call Of Meetings By Trustee. The Trustee may at any time call a meeting of
Debentureholders to take any action specified in Section 9.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Debentureholders, setting
forth the time and the place of such meeting and in general terms the action proposed to be taken
at such meeting and the establishment of any record date pursuant to Section 8.01, shall be mailed
to holders of Debentures at their addresses as they shall appear on the Debenture Register. Such
notice shall also be mailed to the Company. Such notices shall be mailed not less than twenty (20)
nor more than ninety (90) days prior to the date fixed for the meeting.



Any meeting of Debentureholders shall be valid without notice if the holders of all Debentures
then Outstanding are present in person or by proxy or if notice is waived before or after the
meeting by the holders of all Debentures Outstanding, and if the Company and the Trustee are either
present by duly authorized representatives or have, before or after the meeting, waived notice.



Section 9.03. Call Of Meetings By Company Or Debentureholders. In case at any time the
Company, pursuant to a resolution of its Board of Directors, or the holders of at least ten percent
(10%) in aggregate principal amount of the Debentures then Outstanding, shall have requested the
Trustee to call a meeting of Debentureholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request, then the Company or
such Debentureholders may determine the time and the place for such meeting and may call such
meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in
Section 9.02.



Section 9.04. Qualifications For Voting. To be entitled to vote at any meeting of
Debentureholders a person shall (a) be a Holder of one or more Debentures on the record date
pertaining to such meeting or (b) be a person appointed by an instrument in writing as proxy by a
Holder of one or more Debentures on the record date pertaining to such meeting. The only persons
who shall be entitled to be present or to speak at any meeting of Debentureholders shall be the
persons entitled to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.


 


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Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Debentureholders, in regard to proof of the holding of Debentures and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.



The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Debentureholders as provided in
Section 9.03, in which case the Company or the Debentureholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority in principal amount
of the Debentures represented at the meeting and entitled to vote at the meeting.



Subject to the provisions of Section 8.04, at any meeting each Debentureholder or proxyholder
shall be entitled to one vote for each $1,000 principal amount of Debentures held or represented by
him; provided that no vote
shall be cast or counted at any meeting in respect of any Debenture challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Debentures held by him or instruments
in writing as aforesaid duly designating him as the proxy to vote on behalf of other
Debentureholders. Any meeting of Debentureholders duly called pursuant to the provisions of
Section 9.02 or 9.03 may be adjourned from time to time by the holders of a majority of the
aggregate principal amount of Debentures represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.



Section 9.06. Voting. The vote upon any resolution submitted to any meeting of
Debentureholders shall be by written ballot on which shall be subscribed the signatures of the
holders of Debentures or of their representatives by proxy and the Outstanding principal amount of
the Debentures held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Debentureholders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts setting forth



 


50









 






a copy of
the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The
record shall show the principal amount of the Debentures voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.



Any record so signed and verified shall be conclusive evidence of the matters therein stated.



Section 9.07. No Delay Of Rights By Meeting. Nothing contained in this ARTICLE 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Debentureholders
or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay
in the exercise of any right or rights conferred upon or reserved to the Trustee or to the
Debentureholders under any of the provisions of this Indenture or of the Debentures.



ARTICLE 10

Supplemental Indentures




Section 10.01. Supplemental Indentures Without Consent of Debentureholders. The Company, when
authorized by the resolutions of the
Board of Directors, and the Trustee may, from time to time, and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following purposes:



(a) make provision with respect to the conversion rights of the holders of Debentures pursuant
to the requirements of Section 14.08;



(b) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Debentures, any property, assets or securities;



(c) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company pursuant to ARTICLE 11;



(d) to add to the covenants of the Company such further covenants, restrictions or conditions
as the Board of Directors and the Trustee shall consider to be for the benefit of all of the
Debentureholders, and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided that in respect of any such additional covenant, restriction or
condition, such supplemental indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies available to the
Trustee upon such default;


 


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(e) to provide for the issuance under this Indenture of Debentures in coupon form (including
Debentures registrable as to principal only) and to provide for exchangeability of such Debentures
with the Debentures issued hereunder in fully registered form and to make all appropriate changes
for such purpose;



(f) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture that may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture that shall not materially adversely affect the interests of
the holders of the Debentures;



(g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Debentures;



(h) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be
necessary to effect the qualifications of this Indenture under the Trust Indenture Act, or under
any similar federal statute hereafter enacted; or



(i) make other changes to the Indenture or forms or terms of the Debentures, provided no such
change individually or in the aggregate with all other such changes has or will have a material
adverse effect on the interests of the Debentureholders.



Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture, the Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Debentures at the
time Outstanding, notwithstanding any of the provisions of Section 10.02.


 


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Section 10.02. Supplemental Indenture With Consent Of Debentureholders. With the consent
(evidenced as provided in ARTICLE 8) of the holders of at least a majority in aggregate principal
amount of the Debentures at the time Outstanding, the Company, when authorized by the resolutions
of the Board of Directors, and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture
or of modifying in any manner the rights of the holders of the Debentures; provided that no such
supplemental indenture shall (i) extend the fixed maturity of any Debenture, reduce the rate or
extend the time of payment of Interest thereon, reduce the principal amount thereof, reduce any
amount payable upon repurchase thereof, impair the right of any Debentureholder to institute suit
for the payment thereof, make the principal thereof or Interest thereon payable in any coin or
currency other than that provided in the Debentures, impair the right to convert the Debentures
into Common Stock subject to the terms set forth in this Indenture, including Section 14.08, change
the obligation of the Company to repurchase any Debenture upon the happening of a Designated Event
in a manner adverse to the holders of the Debentures, change the obligation of the Company to
repurchase any Debenture on a Designated Event Repurchase Date in a manner adverse to the holders
of the Debentures, reduce the number of shares of Common Stock or amount of other property
receivable upon conversion of the Debentures, modify any of the provisions of Section 10.02 or
Section 6.07, except to increase any such percentage or to provide that certain other provisions of
the Indenture cannot be modified or waived without the consent of the Holder of each Debenture so
affected, grant to the Company a redemption right with respect to the Debentures, change any
obligation of the Company to maintain an office or agency in the
places and for the purposes set forth therein, or reduce the quorum or voting requirements set
forth in ARTICLE 9 or (ii) reduce the aforesaid percentage of Debentures, the holders of which are
required to consent to any such supplemental indenture, without the consent of the holders of all
Debentures then Outstanding.



Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Debentureholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.



It shall not be necessary for the consent of the Debentureholders under this Section 10.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.


 


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Section 10.03. Effect Of Supplemental Indenture. Any supplemental indenture executed pursuant
to the provisions of this ARTICLE 10 shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 10.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act or the Indenture has been qualified under the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any party to such
supplemental indenture that any such qualification is required prior to the time such qualification
is in fact required under the terms of the Trust Indenture Act or the Indenture has been qualified
under the Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the
provisions of this ARTICLE 10, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the holders of Debentures shall
thereafter be determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.



Section 10.04. Notation On Debentures. Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this ARTICLE 10 may bear a
notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Debentures so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may, at the
Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 15.10) and delivered in
exchange for the Debentures then Outstanding, upon surrender of such Debentures then Outstanding.



Section 10.05. Evidence Of Compliance Of Supplemental Indenture To Be Furnished To Trustee.
Prior to entering into any supplemental indenture, the Trustee shall be provided with an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this ARTICLE 10 and is otherwise
authorized or permitted by this Indenture.



ARTICLE 11

Consolidation, Merger, Sale, Conveyance And Lease




Section 11.01. Company May Consolidate On Certain Terms. The Company shall not consolidate or
merge with or into any other Person or Persons (whether or not affiliated with the Company), nor
shall the Company or its successor or successors be a party or parties to successive consolidations
or



 


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mergers, nor shall the Company sell, convey, transfer or lease all or substantially all the
property and assets of the Company, to any other Person (whether or not affiliated with the
Company) (such sale, conveyance, transfer or lease, a “Sale Event”), unless: (i) the Company is the
surviving Person, or the resulting, surviving or transferee Person is a corporation organized and
existing under the laws of the United States of America, any state thereof or the District of
Columbia; (ii) upon any such consolidation, merger, sale, conveyance, transfer or lease, the
payment of the principal of and Interest on all of the Debentures pursuant to their terms, and the
performance and observance of all of the covenants and conditions of this Indenture to be performed
by the Company pursuant to the terms set forth herein, shall be expressly assumed, by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the Person
(if other than the Company) formed by such consolidation, or into which the Company shall have been
merged, or by the Person that shall have acquired or leased such property, and such supplemental
indenture shall provide for the applicable conversion rights set forth in ARTICLE 14; and (iii)
immediately after giving effect to the transaction described above, no Event of Default, and no
event that, after notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing.



Section 11.02. Successor To Be Substituted. In case of any such consolidation, merger, sale,
conveyance, transfer or lease and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the
payment of the principal of and Interest on all of the Debentures pursuant to their terms and the
performance of all of the covenants and conditions of this Indenture to be performed by the Company
pursuant to the terms set forth herein, such successor
Person shall succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of this first part. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Safeguard Scientifics, Inc. any or
all of the Debentures, issuable hereunder that theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor Person instead of the
Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any
Debentures that previously shall have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Debentures that such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Debentures so issued
shall in all respects have the same legal rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Debentures had been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale, conveyance, transfer or lease, the Person named as the “Company” in
the first paragraph of this Indenture or any successor that shall thereafter have become such in
the manner prescribed in this ARTICLE 11 may be dissolved, wound up and liquidated at any time
thereafter and such Person shall be released from its liabilities as obligor and maker of the
Debentures and from its obligations under this Indenture.


 


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Section 11.03. Non-Substantive Changes to Debentures. In case of any such consolidation,
merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Debentures thereafter to be issued as may be appropriate.



Section 11.04. Opinion Of Counsel To Be Given to Trustee. The Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of
this ARTICLE 11.



ARTICLE 12

Satisfaction And Discharge Of Indenture




Section 12.01. Discharge Of Indenture. When (a)(i) the Company shall deliver to the Trustee
for cancellation all Debentures theretofore authenticated (other than any Debentures that have been
destroyed, lost or stolen and in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered) and not theretofore canceled, or (ii) all the Debentures not
theretofore canceled or delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year, (b) the Company shall
deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption of all
of the Debentures (other than any Debentures that shall have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Debentures shall have been authenticated
and
delivered) not theretofore canceled or delivered to the Trustee for cancellation, including
principal and Interest due or to become due to such date of maturity accompanied by a verification
report, as to the sufficiency of the deposited amount, from an independent certified accountant or
other financial professional satisfactory to the Trustee, and (c) if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease
to be of further effect (except as to (1) remaining rights of registration of transfer,
substitution and exchange and conversion of Debentures, (2) rights hereunder of Debentureholders to
receive payments of principal and Interest on, the Debentures and the other rights, duties and
obligations of Debentureholders, as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee and (3) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on written demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel as required by Section 7.02 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and discharging this
Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in connection with this
Indenture or the Debentures.


 


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Section 12.02. Deposited Monies To Be Held In Trust By Trustee. Subject to Section 12.04, all
monies deposited with the Trustee pursuant to Section 12.01, shall be held in trust for the sole
benefit of the Debentureholders, and such monies shall be applied by the Trustee to the payment,
either directly or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Debentures for the payment of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for principal and Interest.



Section 12.03. Paying Agent To Repay Monies Held. Upon the satisfaction and discharge of this
Indenture, all monies then held by any paying agent of the Debentures (other than the Trustee)
shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon
such paying agent shall be released from all further liability with respect to such monies.



Section 12.04. Return Of Unclaimed Monies. Subject to the requirements of applicable law, any
monies deposited with or paid to the Trustee for payment of the principal or Interest on Debentures
and not applied but remaining unclaimed by the holders of Debentures for two years after the date
upon which the principal of or Interest on such Debentures, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on demand and all liability of the
Trustee shall thereupon cease with respect to such monies; and any Debentureholder shall thereafter
look only to the Company for any payment that such Debentureholder may be entitled to collect
unless an applicable abandoned property law designates another Person.



Section 12.05. Reinstatement. If the Trustee or the paying agent is unable to apply any money
in accordance with Section 12.02 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Debentures shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.01 until such time as the Trustee or the paying agent
is permitted to apply all such money in accordance with Section 12.02; provided that if the Company
makes any payment of Interest on or principal of any Debenture following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of such Debentures to
receive such payment from the money held by the Trustee or paying agent.


 


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ARTICLE 13

Immunity Of Incorporators, Shareholders, Officers And Directors




Section 13.01. Indenture And Debentures Solely Corporate Obligations. No recourse for the
payment of the principal of or Interest on any Debenture, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any supplemental indenture or in any Debenture, or because
of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of
the Company or of any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Debentures.



ARTICLE 14

Conversion Of Debentures




Section 14.01. Debentureholder’s Right To Convert.



(a) Subject to the provisions of this Indenture, any Debentureholder shall have the right, at
such Debentureholder’s option, to convert the principal amount of its Debenture, or any portion of
such principal amount that is a multiple of $1,000, into fully paid and non-assessable shares of
Common Stock (as such shares shall then be constituted) at the Conversion Rate in effect at such
time, by surrender of the Debenture so to be converted in whole or in part (it being understood
that, in the case of any Debentureholder that is registered as an investment company under the
Investment Company Act of 1940, as amended, for purposes of this Section 14.01 the term “surrender”
means the delivery by such Debentureholder to the Conversion Agent of a duly completed and executed
conversion notice substantially in the form set forth on the reverse of the Debenture, with
delivery or book-entry transfer of the Debentures to be converted to the Trustee (or other paying
agent appointed by the Company) thereafter
against payment of such Conversion Consideration by the Company pursuant to Section 14.04(a)),
if any of the following conditions are satisfied:




(i) Prior to the close of business on the Business Day immediately preceding March
15, 2013, any Debentureholder may surrender a Debenture for conversion during any fiscal
quarter (and only during such fiscal quarter) commencing after June 30, 2010 if the
Closing Sales Price per share of the Common Stock for at least twenty (20) Trading Days
(whether or not consecutive) during the period of the thirty (30) consecutive Trading Days
ending on the last Trading Day of the preceding fiscal quarter is greater than or equal to
one hundred and twenty percent (120%) of the Conversion Price on each such Trading Day.


 


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(ii) Prior to the close of business on the Business Day immediately preceding March
15, 2013, any Debentureholder may surrender a Debenture for conversion during the five (5)
Business Day period commencing on the Business Day immediately following any ten (10)
consecutive Trading Day period (such ten (10) consecutive Trading Day period, the
“Measurement Period”) in which the Trading Price per $1,000 principal amount of Debentures
for each Trading Day of such Measurement Period was less than one hundred percent (100%)
of the product of the Closing Sale Price per share of the Common Stock multiplied by the
Conversion Rate on each such Trading Day (such condition, the “Trading Price Condition”).




The Bid Solicitation Agent shall have no obligation to determine the Trading Price of
Debentures unless the Company has requested such determination, and the Company shall have
no obligation to make such request, unless, in addition to the requirements of Section
14.04, a Debentureholder provides the Company with written notice of its reasonable
determination that the Trading Price per $1,000 principal amount of Debentures could be
less than one hundred percent (100%) of the product of the Closing Sale Price per share of
the Common Stock multiplied by the applicable Conversion Rate.




At such time, the Company shall instruct the Bid Solicitation Agent to determine the
Trading Price of Debentures beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 principal amount of Debentures is greater
than or equal to one hundred percent (100%) of the product of the Closing Sale Price per
share of the Common Stock multiplied by the applicable Conversion Rate. If, at any time
after the Trading Price Condition has been satisfied then the Company shall so notify all
holders of Debentures promptly, but in any event not more than one Business Day following
any such occurrence of the Trading Price Condition.




(iii) If a Fundamental Change occurs, then (A) the Company shall notify all holders
of Debentures and the Trustee as promptly as practicable following (I) the date the
Company publicly announces such transaction, but in no event fewer than thirty (30)
Business Days prior to the anticipated effective date of such transaction, and (II) the
effective date of such transaction, but in any event, within five (5) Business Days after
the effective date of such transaction; and (B) the Debentures may be surrendered for
conversion at any time from, and including, the thirtieth (30th) Business Day prior to the
anticipated effective date of such transaction to, and including, the thirty-fifth (35th)
Trading Day following such effective date; provided, however, that if the Company
announces a transaction that causes the Debentures to become convertible pursuant to this
Section 14.01(a)(iii), but the transaction is not consummated, then from and after the
date the Company publicly announces that the transaction will not occur, the Debentures
will cease to be convertible pursuant to this Section 14.01(a)(iii) on account of such
transaction.


 


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(iv) If, prior to the close of business on the Business Day immediately preceding
March 15, 2013, the Company exercises its Mandatory Conversion right pursuant to Section
14.02.



(b) Notwithstanding the provisions of Section 14.01(a), at any time beginning on March 15,
2013 and until the close of business on the second Business Day immediately preceding the maturity
date of the Debentures, any Debentureholder shall have the right, at such Debentureholder’s option,
to convert the principal amount of its Debenture in integral multiples of $1,000 principal amount
at the Conversion Rate in effect at such time, by surrender of the Debenture so to be converted in
whole or in part.



(c) If (i) the Company distributes to all holders of its Common Stock rights, warrants or
options entitling them (for a period expiring within forty-five (45) days of the record date for
the determination of the shareholders entitled to receive such distribution) to subscribe for or
purchase shares of Common Stock, at a price per share less than the average of the Closing Sale
Prices of the Common Stock for the ten (10) Trading Days immediately preceding, but not including,
the declaration date for such distribution, or (ii) the Company distributes to all holders of its
Common Stock, assets, debt securities or rights to purchase its securities, where the Fair Market
Value of such distribution per share of Common Stock exceeds five percent (5%) of the Closing Sale
Price of the Common Stock on the Trading Day immediately preceding the declaration date for such
distribution, then, in either case, the Debentures may be surrendered for conversion at any time on
and after the date that the Company gives notice to the holders of such distribution, which shall
be not less than twenty (20) days prior to the Ex-Dividend Date for such distribution, until the
earlier of the close of business on the Business Day immediately preceding, but not including, the
Ex-Dividend Date or the date the Company publicly announces that such distribution will not take
place; provided that no adjustment to the Conversion Rate will be
made nor will a holder of a Debenture be able to convert pursuant to this Section 14.01(c) if
such holder will otherwise participate in such distribution without conversion.



Section 14.02. Mandatory Conversion.



(a) The Company may at any time on or after March 16, 2012 and until the maturity date of the
Debentures, by providing not less than fifteen (15) nor more than thirty (30) days’ notice to any
Debentureholder, cause such Debenture to be mandatorily converted at the Conversion Rate then in
effect (a “Mandatory Conversion”); provided that the Company may exercise this right only if the
Closing Sale Price per share of the Common Stock exceeds one hundred and thirty percent (130%) of
the Conversion Price for at least twenty (20) Trading Days (whether or not consecutive) in a period
of thirty (30) consecutive Trading Days, ending on the Trading Day prior to the date the Company
gives such notice of its election to cause a Mandatory Conversion (by press release as described in
Section 14.02(b); provided, further, however that any such Mandatory Conversion of less than all of
the then outstanding Debentures shall be on a pro-rata basis with respect to the Debentures held by
each Debentureholder.


 


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(b) To exercise its right to call a Mandatory Conversion, the Company shall issue a press
release prior to the close of business on the first (1st) Trading Day following any date on which
the conditions described in Section 14.02(a) are met, announcing such election by the Company to
call a Mandatory Conversion. The Company shall also give prompt written notice to all of the
Debentureholders (not more than five (5) Business Days after the date of the press release) of the
election to call a Mandatory Conversion. The Conversion Date of such Mandatory Conversion will be
a date selected by the Company (the “Mandatory Conversion Date”) and will be no more than thirty
(30) days nor less than fifteen (15) days after the date on which the Company issues the press
release described in this Section 14.02(b).



(c) In addition to any information required by applicable law or regulation, the press release
and notice of Mandatory Conversion described in this Section 14.02 shall state, as appropriate:




(i) the Mandatory Conversion Date;




(ii) the Conversion Rate then in effect;




(iii) the aggregate principal amount of the Debentures to be converted; and




(iv) that Interest on the Debentures to be converted will cease to accrue on the
Mandatory Conversion Date.



(d) Notwithstanding the foregoing, the Company may only exercise its right to Mandatory
Conversion if (i) it has sufficient shares of Common Stock
available for issuance upon conversion of the Debentures called for in any Mandatory
Conversion contemplating payment of the Conversion Consideration in Common Stock and it is able to
make any cash payment that it would be required to make upon conversion of the Debentures called
for Mandatory Conversion in lieu of fractional shares, Defaulted Interest or otherwise, and (ii)
the shares of Common Stock issuable upon conversion of the Debentures (including any Mandatory
Conversion Additional Payment issuable pursuant to Section 14.02(e), if applicable) contemplating
payment of the Conversion Consideration in Common Stock are registered by the Company for resale by
the Holder thereof on a shelf registration statement filed by the Company with the Commission and
such registration statement has been declared effective by the Commission or is automatically
effective and is available for use, and the Company expects such shelf registration statement to
remain effective and available for use from the date of the notice of Mandatory Conversion until
thirty (30) days following the date of the Mandatory Conversion.


 


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(e) On and after the Mandatory Conversion Date, Interest shall cease to accumulate on the
Debentures to be converted, all rights of holders of such Debentures shall terminate and all such
Debentures shall automatically convert at the applicable Conversion Rate into the right to receive
the Conversion Consideration.



(f) If the Company elects to cause a Mandatory Conversion, the Company will be required to
make an additional payment (“Mandatory Conversion Additional Payment”) on the Debentures on the
Mandatory Conversion Date. Such Mandatory Conversion Additional Payment with respect to the
Debentures subject to Mandatory Conversion will, notwithstanding Section 14.04, be payable in cash
on the Mandatory Conversion Date and shall be equal to the total value of the aggregate amount of
Interest that would have accrued and become payable on such Debentures from March 26, 2010 through
and including March 15, 2014, less any Interest already paid on the Debentures. The notice of the
Mandatory Conversion shall also state the amount of the Mandatory Conversion Additional Payment.



Section 14.03. Conversion After Exercise of Option to Elect to Repurchase Upon a Designated
Event; No Stockholder Rights. Notwithstanding any other provision of this ARTICLE 14, a Debenture
in respect of which a Debentureholder is electing to exercise its Option to Elect to Repurchase
Upon a Designated Event pursuant to Section 3.01 may be converted only if such Debentureholder
withdraws its election in accordance with Section 3.01(b). A Debentureholder is not entitled to
any rights of a holder of Common Stock until (i) such Debentureholder has converted its Debentures
to Common Stock, (ii) on and after the Mandatory Conversion Date, or (iii) otherwise to the extent
such Debentures are deemed to have been converted to Common Stock under this ARTICLE 14.



Section 14.04. Conversion Procedure and Payment Upon Conversion.



(a) If a Debenture is surrendered for conversion pursuant to Section 14.01 or Section 14.02,
then:




(i) the Company shall deliver, through the Conversion Agent, the following Conversion
Consideration to such Debentureholder:




(1) if Physical Settlement applies to such conversion, a number of fully paid and
non-assessable shares of Common Stock equal to the product of the principal amount of such
Debenture to be converted (expressed in thousands) multiplied by the Conversion Rate in
effect on the Conversion Date of such conversion; provided, however, that if such product
is not a whole number, then the Company will pay a cash amount in lieu of issuing any
fractional share, which cash amount shall paid in accordance with Section 14.05;


 


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(2) if Cash Settlement applies to such conversion, a cash amount equal to the product
of the principal amount of such Debenture (expressed in thousands) multiplied by the
Conversion Value applicable to such conversion; and




(3) if Combination Settlement applies to such conversion,




a. a cash amount equal to the lower of (i) the Fixed Cash Amount applicable to such
conversion and (ii) the Conversion Value applicable to such conversion; and




b. a number of shares of Common Stock, if any, equal to the sum, for each Trading Day
in the Observation Period applicable to such conversion, of one-twentieth (1/20th) of a
fraction (i) whose numerator is the excess, if any, of (1) the product of the Conversion
Rate in effect on such Trading Day and the VWAP per share of Common Stock on such Trading
Day over (2) the Fixed Cash Amount applicable to such conversion and (ii) whose
denominator is such VWAP per share of
Common Stock; provided, however, that if such sum is not a whole number, then the
Company will pay a cash amount in lieu of issuing any fractional share, which cash amount
shall paid in accordance with Section 14.05;




(ii) except as provided in Section 14.07(i), the Conversion Consideration due upon
such conversion shall be delivered by the Company as follows: (1) if Physical Settlement
applies to such conversion, on the third (3rd) Trading Day following the Conversion Date
of such conversion (or, if earlier, the maturity date of the Debentures); and (2) in all
other cases, on the third (3rd) Trading Day following the final Trading Day of the
Observation Period applicable to such conversion;




(iii) if Physical Settlement applies to such conversion, then the person in whose
name the certificate representing the shares of Common Stock constituting the Conversion
Consideration due upon such conversion shall be treated as a stockholder of record of such
 shares as of the close of business on the Conversion Date of such conversion;




(iv) if Combination Settlement applies to such conversion, then the person in whose
name the certificate representing the shares of Common Stock, if any, constituting the
Conversion Consideration due upon such conversion shall be treated as a stockholder of
record of such



 


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shares of Common Stock, without duplication, as follows: as of the close of
business on each Trading Day (the “Relevant Trading Day”) during the Observation Period
applicable to such conversion, such person shall be treated as a stockholder of record of
a number of shares of Common Stock equal to the sum, for each Trading Day in such
Observation Period occurring on or before such Relevant Trading Day, of one-twentieth
(1/20th) of a fraction (A) whose numerator is the excess, if any, of (1) the product of
the Conversion Rate in effect on such Trading Day and the VWAP per share of Common Stock
on such Trading Day over (2) the Fixed Cash Amount applicable to such conversion and (B)
whose denominator is such VWAP per share of Common Stock (except that if such sum is not a
whole number, then the fractional portion of such sum shall be ignored); and




(v) on and after the Conversion Date for such conversion, all rights of the
Debentureholder with respect to such Debenture shall terminate, other than the right to
receive the Conversion Consideration due upon such conversion in accordance with this
Indenture.




The Settlement Method applicable to each conversion of a Debenture pursuant to Section
14.01 or Section 14.02, as the case may be, shall be determined in accordance with Section
14.04(b).



(b) If a Debenture is surrendered for conversion in accordance with Section 14.01 or Section
14.02, as the case may be, then, unless the Conversion Date of such conversion is on or after the
Irrevocable Net Share Settlement Election Date, if any, the Company shall, no later than the second
(2nd) scheduled Trading Day immediately after such Conversion Date, provide written notice (the
“Settlement Method Election Notice”) to the Debentureholder surrendering such Debenture for
conversion and the Conversion Agent, through the Trustee, of whether the Conversion Consideration
due upon such conversion shall be determined pursuant to Section 14.04(a)(i)(1) (a “Physical
Settlement”), Section 14.04(a)(i)(2) (a “Cash Settlement”) or Section 14.04(a)(i)(3) (a
“Combination Settlement”), which Settlement Method Election Notice shall also state, in the case of
Combination Settlement, the maximum amount of cash (excluding cash, if any, payable in lieu of any
fractional share) due upon such conversion per $1,000 principal amount of such Debenture (such
maximum cash amount per $1,000 principal amount, the “Fixed Cash Amount”); provided, however, that
the decision regarding the type of Settlement Method to be used shall be in the Company’s sole
discretion; provided further, however, that:




(i) if the Company is required to provide a Settlement Method Election Notice for
such conversion pursuant to this Section 14.04(b) and fails to do so in accordance with
this Section 14.04(b), then Combination Settlement, with an Fixed Cash Amount equal to one
thousand dollars ($1,000), shall apply to such conversion; or


 


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(ii) unless the Company shall have theretofore made an Irrevocable Net Share
Settlement Election, the Company may, prior to the close of business on the Business Day
immediately preceding March 15, 2013, deliver a one-time notice (the “Free Convertibility
Period Settlement Method Election Notice”) to holders of Debentures, the Trustee and the
Conversion Agent, irrevocably designating the Settlement Method that shall apply to each
and every conversion of a Debenture whose Conversion Date occurs on or after the close of
business on the Business Day immediately preceding March 15, 2013; if the Company so
provides a Free Convertibility Period Settlement Method Election Notice, then (I) the
Company cannot thereafter rescind such notice; and (II) the Company need not, and may not,
provide a Settlement Method Election Notice with respect to any conversion of a Debenture
whose Conversion Date occurs on or after the close of business on the Business Day
immediately preceding March 15, 2013;




(iii) if, on the close of business on the Business Day immediately preceding March
15, 2014, the Company has not theretofore made an Irrevocable Net Share Settlement
Election and has not theretofore provided a Free Convertibility Period Settlement Method
Election Notice in accordance with Section 14.04(b)(ii), then (A) Combination Settlement,
with a Fixed Cash Amount equal to one thousand dollars ($1,000), shall apply to each and
every conversion of any Debenture whose Conversion
Date is on or after the close of business on the Business Day immediately preceding
March 15, 2013; and (B) the Company need not, and may not, provide a Settlement Method
Election Notice with respect to any conversion of a Debenture whose Conversion Date occurs
on or after the close of business on the Business Day immediately preceding March 15,
2013; and




(iv) the Company shall have the right, in its sole discretion and without the consent
of any Debentureholder, to irrevocably elect (an “Irrevocable Net Share Settlement
Election”), by notice to all Debentureholders, the Trustee and the Conversion Agent,
promptly at any time prior to the close of business on the Business Day immediately
preceding March 15, 2013, that Combination Settlement, with an Fixed Cash Amount equal to
one thousand dollars ($1,000), apply to each and every conversion of any Debenture whose
Conversion Date is on or after the date (the “Irrevocable Net Share Settlement Election
Date”) the Company provides such notice, which election, once given, shall be irrevocable;
provided, however, that the Company shall have the right to irrevocably renounce its right
to make an Irrevocable Net Share Settlement Election by notifying holders of Debentures,
the Trustee and the Conversion Agent at any time prior to the earlier of the (A) the close
of business on the Business Day immediately preceding March 15, 2013 and (B) the Company’s
exercise of the Irrevocable Net Share Settlement



 


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Election, in which case no Irrevocable
Net Share Settlement Election is permitted to be made after such notice; if the Company
has duly made an Irrevocable Net Share Settlement Election, then the Company need not, and
may not, thereafter provide a Settlement Method Election Notice in respect of any
conversion of a Debenture or a Free Convertibility Period Settlement Method Election
Notice.




Notwithstanding anything in this Indenture or the Debentures to the contrary, if the
Conversion Dates of two (2) or more conversions of any Debentures occur on the same
Trading Day, then the same Settlement Method shall apply to each of such conversions.



(c) Upon conversion of a Debenture in accordance with Section 14.01 or Section 14.02, as the
case may be, the Debentureholder of such Debenture shall not be entitled to receive, on account of
such conversion, any separate cash payment for accrued and unpaid Interest thereon, except as
provided in the immediately following sentence. If a Debentureholder surrenders a Debenture for
conversion after the close of business on a Record Date and prior to the immediately following date
of Interest payment, then, notwithstanding such conversion, the Interest payable with respect to
such Debenture on such date of Interest payment shall be paid on such date of Interest payment to
such Debentureholder at the close of business on such Record Date; provided, however, that such
Debenture, when surrendered for conversion, must be accompanied by payment to the Conversion Agent
on behalf of the Company of
an amount equal to the Interest payable on such date of Interest payment on the portion of
such Debenture to be so converted, except that no such payment is required if either (i) the
Company shall have specified a Designated Event Repurchase Date that is after such Record Date and
on or prior to such Interest payment date, or (ii) the Conversion Date for such conversion is after
the Record Date that immediately precedes the date of the maturity of the Debentures; provided
further, however, that, if the Company shall have, prior to the Conversion Date with respect to a
Debenture, defaulted in a payment of Defaulted Interest on such Debenture, then in no event shall
such Debentureholder who surrenders such Debenture for conversion be required to pay such Defaulted
Interest or the Interest that shall have accrued on such Defaulted Interest (it being understood
that nothing in this Section 14.04(c) shall affect the Company’s obligations under ARTICLE 6).



(d) If a Debentureholder converts more than one Debenture at the same time, the number of full
shares of Common Stock issuable, if any, upon such conversion shall be based on the aggregate
principal amount of all Debentures converted.



(e) Upon surrender of a Debenture that is converted in part, The Company shall execute, and
the Trustee shall authenticate for such Debentureholder, a new Debenture equal in principal amount
to the unconverted portion of the Debenture surrendered.


 


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(f) If the last day on which a Debenture may be converted is not a Business Day, then the
Debenture may be surrendered to the Conversion Agent on the next succeeding day that is a Business
Day.



(g) The Company’s delivery of the Conversion Consideration due upon any conversion of a
Debenture will be deemed to satisfy in full the Company’s obligation to pay (i) the principal
amount of such Debenture; and (ii) accrued and unpaid Interest to, but excluding, the Conversion
Date of such conversion. As a result, accrued and unpaid Interest to, but excluding, such
Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.



Section 14.05. Cash Payments in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip certificates representing fractional shares shall be issued upon conversion of
Debentures. If more than one Debenture shall be surrendered for conversion at one time by the same
Debentureholder, the number of full shares that shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Debentures (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock would be issuable
upon the conversion of any Debenture or Debentures, the Company shall make an adjustment and
payment therefor in cash at the current market price thereof to the Debentureholder. The current
market price of a share of Common Stock shall be the Closing Sale Price of the Common Stock on the
last Trading Day immediately preceding the day on which the Debentures (or specified portions
thereof) are deemed to have been converted.



Section 14.06. Conversion Rate. Each $1,000 principal amount of the Debentures shall be
convertible into 60.6061 fully paid and non-assessable shares of Common Stock attached as Exhibit A
hereto, subject to adjustment as provided in this ARTICLE 14 (the “Conversion Rate”).



Section 14.07. Adjustment Of Conversion Rate. The Conversion Rate shall be adjusted from time
to time (without duplication) by the Company as follows:



(a) In case the Company shall hereafter pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased
so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at
the opening of business on the date following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution by a fraction,




 


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(i) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution plus the total number
of shares of Common Stock constituting such dividend or other distribution; and




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



such increase to become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purpose of this paragraph (a), the number of shares
of Common Stock at any time outstanding shall not include shares held in the treasury of the
Company. The Company will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company. If any dividend or distribution of the type described in this
Section 14.07(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.



(b) In case the Company shall issue rights, options or warrants to all holders of its
outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45)
days after the date fixed for determination of shareholders entitled to receive such rights,
options or warrants) to subscribe for or purchase shares of Common Stock at a price per share less
than the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days
immediately preceding the declaration date for such distribution, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the date fixed for determination of shareholders entitled to receive
such rights, options or warrants by a fraction,




(i) the numerator of which shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for determination of shareholders entitled to
receive such rights, options or warrants plus the total number of additional shares of
Common Stock offered for subscription or purchase; and




(ii) the denominator of which shall be the sum of the number of shares of Common
Stock outstanding at the close of business on the date fixed for determination of
shareholders entitled to receive such rights, options or warrants plus the number of
 shares that the aggregate offering price of the total number of shares so offered would
purchase at a price equal to the average of the Closing Sale Prices of the Common Stock
for the ten (10) Trading Days immediately preceding the declaration date for such
distribution.


 


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Such adjustment shall be successively made whenever any such rights, options or warrants are
issued, and shall become effective immediately after the opening of business on the day following
the date fixed for determination of shareholders entitled to receive such rights, options or
warrants. 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 adjustments made upon the issuance of such rights, options or
warrants been made on the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the
determination of shareholders entitled to receive such rights, options or warrants had not been
fixed. In determining whether any rights, options or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at a price less than the average of the Closing Sale Prices of
the Common Stock for the ten (10) Trading Days immediately preceding the declaration date for such
distribution, and in determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such rights, options or
warrants and any amount payable on exercise or conversion thereof, the value of such consideration,
if other than cash, to be determined by the Board of Directors.



(c) In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be proportionately reduced,
such increase or reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or combination becomes
effective.



(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of capital stock of the Company or evidences of its indebtedness,
property or assets (including rights, options, warrants and other securities, but excluding any
rights, options or warrants referred to in Section 14.07(b), and excluding any dividend or
distribution (x) paid exclusively in cash or (y) referred to in Section 14.07(a)) (any of the
foregoing hereinafter in this Section 14.07(d) called the “Distributed Property”), then, in each
such case (unless the Company elects to reserve such Distributed Property for distribution to the
Debentureholders upon the conversion of the Debentures so that any such Debentureholder converting
Debentures will receive upon such conversion, in addition to the shares of Common Stock to which
such Debentureholder is entitled, the amount and kind of such Distributed



 


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Property that such
Debentureholder would have received if such Debentureholder
had converted its Debentures into Common Stock immediately prior to the Record Date for such
distribution of the Distributed Property) the Conversion Rate shall be increased so that the same
shall be equal to the rate determined by multiplying the Conversion Rate in effect immediately
prior to the close of business on the Record Date with respect to such distribution by a fraction,




(i) the numerator of which shall be the Current Market Price on such Record Date; and




(ii) the denominator of which shall be the Current Market Price on such Record Date
less the Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of Directors) on the
Record Date of the portion of the Distributed Property so distributed applicable to one
share of Common Stock,



such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided that if the then Fair Market Value (as so determined) of the
portion of the Distributed Property so distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Debentureholder shall have the right to
receive on the date of such dividend or distribution the amount of Distributed Property such
Debentureholder would have received had such Debentureholder converted each Debenture on the Record
Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 14.07(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price on the applicable Record Date.



Notwithstanding the foregoing, if the Distributed Property distributed by the Company to all
holders of its Common Stock consists of capital stock of, or similar equity interests in, a
Subsidiary or other business unit of the Company (unless such capital stock or similar equity
interests are distributed to the Debentureholders in such distribution as if such holders had
converted their Debentures into shares of Common Stock), the Conversion Rate shall be increased so
that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Record Date with respect to such distribution by
a fraction,


 


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(i) the numerator of which shall be the sum of (A) the average of the Closing Sale
Prices of the Common Stock for the ten (10) consecutive Trading Days commencing on and
including the fifth Trading Day after the date on which “ex-dividend trading” commences
for such
dividend or distribution on the New York Stock Exchange, the Nasdaq Global Market or
such other national or regional exchange or market on which such securities are then
listed or quoted (the “Ex-Dividend Date”) plus (B) the average Closing Sales Prices of the
securities distributed in respect of each share of Common Stock for the ten (10)
consecutive Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date; and




(ii) the denominator of which shall be the average of the Closing Sale Prices of the
Common Stock for the ten (10) consecutive Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date,



such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided that the Company may in lieu of the foregoing adjustment make
adequate provision so that each Debentureholder shall have the right to receive on the date of such
distribution the amount of Distributed Property such Debentureholder would have received had such
Debentureholder converted each Debenture on the Record Date with respect to such distribution; and
provided further that if (x) the average of the Closing Sale Prices of the Common Stock for the ten
(10) consecutive Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date minus (y) the average of the Closing Sale Prices of the securities distributed in
respect of each share Common Stock for the ten (10) consecutive Trading Days commencing on and
including the fifth Trading Day after the Ex-Dividend Date is less than $1.00, then the adjustment
provided by for by this paragraph shall not be made and in lieu thereof the provisions of the first
paragraph of this Section 14.07(d) shall apply to such distribution. In any case in which this
paragraph is applicable, Section 14.07(a), Section 14.07(b) and the first paragraph of this Section
14.07(d) shall not be applicable.



Rights or warrants distributed by the Company to all holders of Common Stock entitling the
holders thereof to subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances
of Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.07
(and no adjustment to the Conversion Rate under this Section 14.07 will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights, options and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 14.07(d). If any such right or warrant, including
any such existing rights, options or warrants distributed prior to the date



 


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of this Indenture, are
subject to events, upon the occurrence of which such rights, options or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each
such event shall be deemed to be the date of distribution and record date with respect to new
rights, options or warrants with such rights (and a termination or expiration of the existing
rights, options or warrants without exercise by any of the holders thereof). In addition, in the
event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 14.07 was made, (1) in the case of any such rights, options or
warrants that shall all have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash distribution,
equal to the per share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights, options or warrants (assuming such holder had retained such
rights, options or warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights, options or warrants that shall have expired or
been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as
if such rights, options and warrants had not been issued.



No adjustment of the Conversion Rate shall be made pursuant to this Section 14.07(d) in
respect of rights, options or warrants distributed or deemed distributed on any Trigger Event to
the extent that such rights, options or warrants are actually distributed, or reserved by the
Company for distribution, to holders of Debentures upon conversion by such holders of Debentures
into Common Stock.



For purposes of this Section 14.07(d) and Section 14.07(a) and Section 14.07(b), any dividend
or distribution to which this Section 14.07(d) is applicable that also includes shares of Common
Stock, or rights, options or warrants to subscribe for or purchase shares of Common Stock (or
both), shall be deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights,
options or warrants (and any Conversion Rate adjustment required by this Section 14.07(d) with
respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend
or distribution of such shares of Common Stock or such rights, options or warrants (and any further
Conversion Rate adjustment required by Section 14.07(a) and Section 14.07(b) with respect to such
dividend or distribution shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as “the date fixed for the determination of shareholders entitled
to receive such dividend or other distribution”, “the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants” and “the date fixed for such
determination” within the meaning of Section 14.07(a) and Section 14.07(b) and (B) any shares of
Common Stock included in such dividend or distribution shall not be deemed “outstanding at the
close of business on the date fixed for the determination of shareholders entitled to receive such
dividend or other distribution” or “outstanding at the close of business on the date fixed for such
determination” within the meaning of Section 14.07(a).





 


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The reclassification of the Common Stock into securities including securities other than
Common Stock (other than any reclassification upon an event to which Section 14.08 applies) shall
be deemed to involve (a) a distribution of such securities other than the Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall be deemed to be the
“Record Date” within the meaning of this Section 14.07(d)), and (b) a subdivision or combination,
as the case may be, of the number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to be “the day upon which such
subdivision becomes effective” or “the day upon which such combination becomes effective”, as the
case may be, and “the day upon which such subdivision or combination becomes effective” within the
meaning of Section 14.07(c)).



(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash (excluding any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary), then, in such case,
the Conversion Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the close of business on such Record
Date by a fraction,




(i) the numerator of which shall be the Current Market Price on such Record Date; and




(ii) the denominator of which shall be the Current Market Price on such Record Date
less the amount of cash so distributed (and not excluded as provided above) applicable to
one share of Common Stock,



such adjustment to be effective immediately prior to the opening of business on the day following
the Record Date; provided that if the portion of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each Debentureholder shall have
the right to receive on the date of such dividend or distribution the amount of cash such
Debentureholder would have received had such Debentureholder converted each Debenture on the record
date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.


 


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(f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to shareholders of consideration per share of Common
Stock having
a Fair Market Value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) that as of the last time (the
“Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (as
it may be amended) exceeds the Closing Sale Price per share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that the same shall equal
the rate determined by multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction,




(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to shareholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the
 shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Closing Sale Price per share of Common
Stock on the Trading Day next succeeding the Expiration Time, and




(ii) the denominator of which shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied
by the Closing Sale Price per share of Common Stock on the Trading Day next succeeding the
Expiration Time,



such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such
tender or exchange offer, but the Company is permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or exchange offer had not
been made.



(g) In the event a Partnership Company shall issue rights (“IPO Rights”) in a Rights IPO, the
Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the IPO Rights Adjustment Date by a fraction:




(i) the numerator of which will be the sum of (x) the average of the Closing Sale
Prices of the Common Stock for the last ten (10) Trading Days that the IPO Rights were
publicly traded, plus (y) the quotient of (A) the average closing price of the IPO Rights
on the last ten (10) Trading Days that the IPO Rights were publicly traded, divided by (B)
the number of shares of Common Stock that are required, under the terms of the IPO Rights,
to allow a holder of Common Stock to receive one IPO Right; and


 


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(ii) the denominator of which will be the average of the Closing Sale Prices of the
Common Stock for the last ten (10) Trading Days that the IPO Rights were publicly traded,



such adjustment to become effective immediately after the close of business on the date the Rights
IPO closed (the “IPO Rights Adjustment Date”). Such adjustment shall be successively made upon
each Rights IPO, if any.



(h) In the event a Partnership Company shall undertake, as part of the initial public offering
of its common stock pursuant to a registration statement filed under the Securities Act, a Directed
Share Subscription Program, the Conversion Rate shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior to the Subscription
Rights Adjustment Date by a fraction:




(i) the numerator of which will be the sum of (x) the average of the Closing Sale
Prices of the Common Stock for the first four (4) Trading Days on which the common stock
of the Partnership Company that is undertaking the Directed Share Subscription Program was
publicly traded, plus (y) (A) the difference (if any, and in each case only where (I) is a
higher number than (II)) between (I) the average closing price of the common stock of that
Partnership Company on the first four (4) Trading Days its common stock is publicly
traded, and (II) the initial public offering price of its common stock, divided by (B) the
number of shares of Common Stock required to subscribe for one share of common stock of
that Partnership Company, and




(ii) the denominator of which will be the average of the Closing Sale Prices of the
Common Stock for the first four (4) Trading Days on which the common stock of the
Partnership Company that is undertaking the Directed Share Subscription Program was
publicly traded,



such adjustment to become effective immediately after the close of business on the last Trading Day
of the four Trading Day period described above (the “Subscription Rights Adjustment Date”). Such
adjustment shall be successively made upon each initial public offering that includes a Directed
Share Subscription Program, if any. If such directed share subscription rights described in this
Section 14.07(h) has been declared but not so issued, the Conversion Rate will again be adjusted to
be the Conversion Rate that would be in effect if such issuance of directed share subscription
rights had not been declared.


 


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(i) The Conversion Rate will be adjusted in connection with a Fundamental Change as follows:




(i) If a Fundamental Change occurs and a Debentureholder elects to convert its
Debentures in connection with such Fundamental Change, the Conversion Rate shall, under
certain circumstances, be
increased with respect to the Debentures so surrendered for conversion by a number of
additional shares of Common Stock (the “Additional Shares”) as described below. A
conversion of Debentures shall be deemed for these purposes to be “in connection with”
such Fundamental Change if the notice of conversion of the Debentures is received by the
Conversion Agent from, and including, the Business Day immediately prior to the related
Designated Event Repurchase Date, or, in the case of a Fundamental Change that does not
also constitute a Designated Event, the date that is thirty-five (35) Business Days
following the Effective Date of such Fundamental Change. The Company shall notify the
holders of the Debentures and the Trustee of the Effective Date of such Fundamental Change
and issue a press release announcing the Effective Date no later than five Business Days
after such Effective Date.




(ii) The number of Additional Shares by which the Conversion Rate will be increased
shall be determined by reference to the table attached as Exhibit B hereto, based on the
date on which the Fundamental Change occurs or becomes effective (the “Effective Date”)
and the price (the “Stock Price”) paid (or deemed paid) per share of Common Stock in the
Fundamental Change. If the holders of Common Stock receive only cash in a Fundamental
Change described in clause (i) of the definition of Fundamental Change, the Stock Price
shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average
of the Closing Sale Prices of the Common Stock over the five successive Trading Days
ending on, and including, the Trading Day immediately preceding the Effective Date of the
Fundamental Change.




(iii) The Stock Prices set forth in the column headings of the table in Exhibit B
hereto shall be adjusted as of any date on which the Conversion Rate of the Debentures is
otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices immediately
prior to such adjustment, multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to such adjustment giving rise to the stock price
adjustment and the denominator of which is the Conversion Rate as so adjusted.




(iv) If the exact Stock Prices and Effective Dates are not set forth in the table in
Exhibit B, then:


 


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(1) If the Stock Price is between two adjacent Stock Price amounts in the table or
the Effective Date is between two adjacent Effective Dates in the table, then the number
of Additional Shares by which the Conversion Rate will be increased will be determined by
a straight-line interpolation between the number of Additional Shares set forth for the
higher and lower stock price amounts and the two dates, as applicable, based on a 365-day
year.




(2) If the Stock Price is greater than $60.00 per share (subject to adjustment in the
same manner as the Stock Prices as set forth in the column headings of the table in
Exhibit B hereto), then no Additional Shares will be added to the Conversion Rate.




(3) If the Stock Price is less than $12.00 per share (subject to adjustment in the
same manner as the Stock Prices as set forth in the column headings of the table in
Exhibit B hereto), then no Additional Shares will be added to the Conversion Rate.




Notwithstanding the foregoing, in no event shall the Conversion Rate exceed $12.00
per $1,000 principal amount of Debentures, subject to adjustments in the same manner, and
at the same time, as the Conversion Rate as set forth in Section 4.04.




(v) If a Debentureholder elects to convert its Debentures prior to the Effective Date
of any Fundamental Change, such Debentureholder shall not be entitled to an increased
Conversion Rate in connection with such conversion.




(j) For purposes of this Section 14.07, the following terms shall have the meaning indicated:




(i) “Current Market Price” shall mean the average of the daily Closing Sale Prices
per share of Common Stock for the ten (10) consecutive Trading Days ending on the earlier
of the day in question and the day before the “ex” date with respect to the issuance,
distribution, subdivision or combination requiring such computation. For purpose of this
paragraph, the term “ex” date, (1) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Closing Sale Price of the Common Stock
was obtained without the right to receive such issuance or distribution, and (2) when used
with respect to any subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades, regular way, on such exchange or in such market
after the time at which such subdivision or combination becomes effective.


 


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If another issuance, distribution, subdivision or combination to which Section 14.07
applies occurs during the period applicable for calculating “Current Market Price”
pursuant to the definition in the preceding paragraph, “Current Market Price” shall be
calculated for such period in a manner determined by the Board of Directors to reflect the
impact of such issuance, distribution, subdivision or combination on the Closing Sale
Price of the Common Stock during such period.




(ii) “Fair Market Value” shall mean the amount that a willing buyer would pay a
willing seller in an arm’s-length transaction.




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




(iv) “Trading Day” shall mean a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on the New
York Stock Exchange, on the principal other national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not listed on a national
or regional securities exchange on the principal other market on which the Common Stock is
then traded.



(k) The Company may make such increases in the Conversion Rate, in addition to those required
by Section 14.07(a), (b), (c), (d), (e), (f), (g), (h) or (h) as the Board of Directors considers
to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.



To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least twenty (20) days,
the increase is irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall mail, or cause the Trustee to mail, to holders of record of the Debentures a
notice of the increase at least fifteen (15) days prior to the date the increased Conversion Rate
takes effect, and such notice shall state the increased Conversion Rate and the period during which
it will be in effect.


 


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(l) All calculations under this ARTICLE 14 shall be made by the Company and shall be made to
the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be.
No adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for any issuance of Common Stock or convertible or
exchangeable securities or rights to purchase Common Stock or convertible or exchangeable
securities. To the extent the Debentures become convertible into cash, assets, property or
securities (other than capital stock of the Company or any other Person), no adjustment need be
made thereafter as to the
cash, assets, property or such securities. Interest will not accrue on any cash into which
the Debentures are convertible.



(m) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and the Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail, or cause the Trustee
to mail, such notice of such adjustment of the Conversion Rate to the each Debentureholder at his
last address appearing on the Debenture Register provided for in Section 2.05, within twenty (20)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.



(n) In any case in which this Section 14.07 provides that an adjustment shall become effective
immediately after (1) a record date or Record Date for an event, (2) the date fixed for the
determination of shareholders entitled to receive a dividend or distribution pursuant to Section
14.07(a), (3) a date fixed for the determination of shareholders entitled to receive rights,
options or warrants pursuant to Section 14.07(b), (4) the Expiration Time for any tender or
exchange offer pursuant to Section 14.07(f), (5) in the case of Section 14.07(h), the close of
business on the last Trading Day of the four Trading Day period described in Section 14.07(h) or
(6) in the case of Section 14.07(h), the close of business on the last Trading Day of the five
Trading Day period described in Section 14.07(h) (each a “Determination Date”), the Company may
elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x)
issuing to any Debentureholder converted after such Determination Date and before the occurrence of
such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such
conversion by reason of the adjustment required by such Adjustment Event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such
Debentureholder any amount in cash in lieu of any fraction pursuant to Section 14.02. For purposes
of this Section 14.07(n), the term “Adjustment Event” shall mean:


 


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(i) in any case referred to in clause (1) hereof, the occurrence of such event,




(ii) in any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,




(iii) in any case referred to in clause (3) hereof, the date of expiration of such
rights, options or warrants,




(iv) in any case referred to in clause (4) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable,




(v) in any case referred to in clause (5) hereof, the date on which the directed
share subscription rights described in Section 14.07(h) are issued, and




(vi) in any case referred to in clause (6) hereof, the Effective Date of the
applicable Fundamental Change.



(o) For purposes of this Section 14.07, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.




Section 14.08. Effect Of Reclassification, Consolidation, Merger or Sale.



(a) If any of the following events occur, namely (a) any reclassification or change of the
outstanding shares of Common Stock (other than a subdivision or combination to which Section
14.07(c) applies), (b) any consolidation, merger or binding share exchange of the Company with
another Person as a result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to or in exchange for
such Common Stock, or (c) any sale or conveyance of all or substantially all of the properties and
assets of the Company to any other Person as a result of which holders of Common Stock shall be
entitled to receive stock, other securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then 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) providing that each Debenture shall be changed into a right to convert each $1,000
principal amount



 


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of Debentures into the kind and amount of shares of stock, other securities or
other property or assets (including cash) (the “Reference Property”) that a holder of a number of
shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would
have received on account of such transaction, assuming such holder is entitled to participate in
such transaction on the basis of holding such shares; provided, however, that, at and after the
effective time of such transaction, upon any conversion of a Debenture, (A) any portion of the
Conversion Consideration due upon such conversion that would have been payable in cash pursuant to
Section 14.04 had such transaction not occurred shall
continue to be payable in cash, (B) any portion of the Conversion Consideration due upon such
conversion that would have been payable in shares of Common Stock pursuant to Section 14.04 had
such transaction not occurred shall instead be payable in such Reference Property and (C) the VWAP
per share of Common Stock shall, for these purposes, be calculated based on the value of a unit of
Reference Property that a holder of one (1) share of Common Stock would have been entitled to
receive in such transaction.



(b) If the Reference Property in respect of such transaction consists solely of cash and the
effective time of the such transaction occurs on or before the third Business Day after the last
Trading Day in any Observation Period applicable to the conversion of any Security (in the event
Physical Settlement does not apply to such conversion) or on or before the third Business Day after
the Conversion Date of such conversion (in the event Physical Settlement applies to such
conversion), then (x) the Conversion Consideration due upon such conversion shall consist of cash
in an amount, per $1,000 principal amount of such Security, equal to the product of (i) the amount
of cash paid per share of Common Stock pursuant to such transaction and (ii) the Conversion Rate on
the Conversion Date for such conversion; and (y) such consideration shall be paid no later than the
third (3rd) Business Day after the later of such Conversion Date and such effective date.



(c) If such transaction causes the Common Stock to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form of stockholder
election), then the Reference Property into which the Debentures shall be convertible shall be
deemed to be the weighted average of the types and amounts of consideration actually received by
the holders of Common Stock, subject to the Company’s (or its successor’s) right, pursuant to
Section 14.04, to deliver, in lieu of Reference Property, cash or a combination of cash and
Reference Property.



(d) Such supplemental indenture shall provide for adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this ARTICLE 14.


 


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(e) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Debentureholder, at its address appearing on the Debenture Register provided for in
Section 2.05, within twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.



(f) The provisions of this Section 14.08 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and conveyances.



(g) If this Section 14.08 applies to any event or occurrence, then Section 14.07 shall not
apply.



Section 14.09. Taxes On Shares Issued. The issue of stock certificates on conversions of
Debentures shall be made without charge to the converting Debentureholder for any documentary,
stamp or similar issue or transfer tax in respect of the issue thereof. The Company shall not,
however, be required to pay any such tax that may be payable in respect of any transfer involved in
the issue and delivery of stock in any name other than that of any Debentureholder converted, and
the Company shall not be required to issue or deliver any such stock certificate unless and until
the Person or Persons requesting the issue thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such tax has been paid.



Section 14.10. Reservation of Shares, Shares to Be Fully Paid; Compliance With Governmental
Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Debentures from time to time as such Debentures are presented
for conversion.



Before taking any action that would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par value, if any, of the
shares of Common Stock issuable upon conversion of the Debentures, the Company will take all
corporate action that may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.



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



The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Debentures hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will in good faith and as expeditiously as possible, to the extent then permitted by
the rules and interpretations of the Commission (or any successor thereto), endeavor to secure such
registration or approval, as the case may be.


 


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The Company further covenants that, if at any time the Common Stock shall be listed on the New
York Stock Exchange or any other national securities exchange or automated quotation system, the
Company will, if permitted by the rules of such exchange or automated quotation system, list and
keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation
system, all Common Stock issuable upon conversion of the Debenture; provided that if the rules of
such exchange or automated quotation system permit the Company to defer the listing of such Common
Stock until the first conversion
of the Debentures into Common Stock in accordance with the provisions of this Indenture, the
Company covenants to list such Common Stock issuable upon conversion of the Debentures in
accordance with the requirements of such exchange or automated quotation system at such time.



Section 14.11. Responsibility Of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Debentureholder to determine the
Conversion Rate or whether any facts exist that may require any adjustment of the Conversion Rate,
or with respect to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture provided to be employed,
in making the same. The Trustee and any other Conversion Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered upon the conversion of any
Debenture; and the Trustee and any other Conversion Agent make no representations with respect
thereto. Neither the Trustee nor the Conversion Agent shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Debenture for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company contained in this
ARTICLE 14. Without limiting the generality of the foregoing, neither the Trustee nor the
Conversion Agent shall be under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 14.08 relating either to
the kind or amount of shares of stock or securities or property (including cash) receivable by
Debentureholders upon the conversion of their Debentures after any event referred to in such
Section 14.08 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated
to file with the Trustee prior to the execution of any such supplemental indenture) with respect
thereto.


 


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Section 14.12. Notice To Holders Prior To Certain Actions. In case:



(a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Conversion Rate pursuant to Section 14.07; or



(b) the Company shall authorize the granting to the holders of all or substantially all of its
Common Stock of rights, options or warrants to subscribe for or purchase any share of any class of
capital stock or any other rights, options or warrants; or



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



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



(e) a Partnership Company issues IPO Rights in a Rights IPO; or



(f) a Partnership Company undertakes, as part of the initial public offering of its common
stock pursuant to a registration statement filed under the Securities Act, a Directed Share
Subscription Program;



the Company shall cause to be filed with the Trustee and to be mailed to each Debentureholder at
his address appearing on the Debenture Register provided for in Section 2.05, as promptly as
possible but in any event at least ten (10) days prior to the applicable date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend, distribution or rights
are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the
date as of which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.


 


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Section 14.13. Issuer Determination Final. Any determination that the Company or Board of
Directors of the Company must make pursuant to this ARTICLE 14 shall, absent manifest error, be
conclusive.



ARTICLE 15

Miscellaneous Provisions




Section 15.01. Provisions Binding On Company’s Successors. All the covenants, stipulations,
promises and agreements by the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



Section 15.02. Official Acts By Successor Corporation. Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the like board,
committee or
officer of any Person that shall at the time be the lawful sole successor of the Company.



Section 15.03. Addresses For Notices, Etc. Any notice or demand that by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by the holders of
Debentures on the Company shall be deemed to have been sufficiently given or made, for all
purposes, if given or served by being deposited postage prepaid by registered or certified mail in
a post office letter box or sent by telecopier transmission addressed as follows: to Safeguard
Scientifics, Inc., 800 The Safeguard Building, 435 Devon Park Drive, Wayne, PA 19087, Attention:
General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office letter box or sent by
telecopier transmission addressed as follows: U.S. Bank National Association, Corporate Trust
Services, Two Liberty Place, 50 S. 16th Street, Suite 2000, Mail Station: EX-PA-WBSP, Philadelphia,
PA 19102, Telephone: (215) 761-9317, Facsimile: (215) 761-9412.



Any notice or demand that by any provision of this Indenture is required or permitted to be
given or served by the Company may, at the Company’s written request received by the Trustee not
fewer than five (5) Business Days prior (or such shorter period of time as may be acceptable to the
Trustee) to the date on which such notice must be given or served, be given or served by the
Trustee in the name of and at the expense of the Company.



The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.



Any notice or communication mailed to a Debentureholder shall be mailed to him by first class
mail, postage prepaid, at his address as it appears on the Debenture Register and shall be
sufficiently given to him if so mailed within the time prescribed.


 


85









 





Failure to mail a notice or communication to a Debentureholder or any defect in it shall not
affect its sufficiency with respect to other Debentureholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it.



Section 15.04. Governing Law. This Indenture and each Debenture shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of the State of New York, without regard to conflicts of laws principles
thereof.



Section 15.05. Evidence Of Compliance With Conditions Precedent, Certificates To Trustee.
Upon any application or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with; provided, that with respect to matters of fact, an
Opinion of Counsel may rely on an Officer’s Certificate or a certificate of public officials.



Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.



Section 15.06. Legal Holidays. In any case in which the date of maturity of Interest on or
principal of the Debentures or repurchase date of any Debenture will not be a Business Day, then
payment of such Interest on or principal of the Debentures need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if made on the date
of maturity or repurchase date, and no Interest shall accrue for the period from and after such
date.


 


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Section 15.07. Trust Indenture Act. This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act; provided that unless otherwise required by law,
notwithstanding the foregoing, this Indenture and the Debentures issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust
Indenture Act as now in effect or as hereafter amended or modified; provided further that this
Section 15.07 shall not require this Indenture or the Trustee to be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any party to the
Indenture that any such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.



Section 15.08. No Security Interest Created. Nothing in this Indenture or in the Debentures,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction in which property of the Company or its
subsidiaries is located.



Section 15.09. Benefits Of Indenture. Nothing in this Indenture or in the Debentures, express
or implied, shall give to any Person, other than the parties hereto, any paying agent, any
authenticating agent, any Debenture Registrar and their successors hereunder and the holders of
Debentures any benefit or any legal or equitable right, remedy or claim under this Indenture.



Section 15.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf, and subject to its direction, in the authentication and
delivery of Debentures in connection with the original issuance thereof and transfers and exchanges
of Debentures hereunder, including under Section 2.04, Section 2.05, Section 2.06 and Section 2.07,
as fully to all intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver Debentures. For all
purposes of this Indenture, the authentication and delivery of Debentures by the authenticating
agent shall be deemed to be authentication and delivery of such Debentures “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Debentures for the Trustee’s certificate of
authentication. Such authenticating agent shall at all times be a Person eligible to serve as
trustee hereunder pursuant to Section 7.09.



Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section 15.10, without
the execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.


 


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Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section 15.10, the Trustee shall either
promptly appoint a successor authenticating agent or itself assume the duties and obligations of
the former authenticating agent under this Indenture and, upon such appointment of a successor
authenticating agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of a successor
authenticating agent to all holders of Debentures as the names and addresses of such holders appear
on the Debenture Register.



The Company agrees to pay to the authenticating agent from time to time such reasonable
compensation for its services as shall be agreed upon in writing between the Company and the
authenticating agent.



The provisions of Section 7.02, Section 7.03, Section 7.04 and Section 8.03 and this Section
15.10 shall be applicable to any authenticating agent.



Section 15.11. Execution In Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



Section 15.12. Severability. In case any provision in this Indenture or in the Debentures
shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.



U.S. Bank National Association, hereby accepts the duties in this Indenture declared and
provided, upon the terms and conditions herein above set forth.



Section 15.13. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


88









 





IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.



	 	 	 	 	 
	 	SAFEGUARD SCIENTIFICS, INC.

 	 
	 	By:  	/s/ Brian J. Sisko
 	 
	 	 	Name:  	Brian J. Sisko 	 
	 	 	Title:  	Senior Vice President and General Counsel 	 
	 
	 	U.S. Bank National Association, as Trustee

 	 
	 	By:  	/s/ George J. Rayzis
 	 
	 	 	Name:  	George J. Rayzis 	 
	 	 	Title:  	Vice President 	 
	 



[INDENTURE SIGNATURE PAGE]




 


 









 







EXHIBIT A




FORM OF DEBENTURE






[Include only for Global Debentures]



[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE “DEPOSITARY”, WHICH TERM INCLUDES ANY SUCCESSOR
DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


A-2









 





SAFEGUARD SCIENTIFICS, INC.




10.125% CONVERTIBLE SENIOR DEBENTURE DUE MARCH 15, 2014




CUSIP: 786449AH1




			
	 	 	 
	No. [___]
	 	$[____________]






Safeguard Scientifics, Inc., a corporation duly organized and validly existing under the laws
of the Commonwealth of Pennsylvania (the “Company”, which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received hereby promises to pay
to CEDE & CO. or its registered assigns, [the principal sum of                      DOLLARS] [the
principal sum set forth on Schedule I hereto]1 on March 15, 2014 at the office or agency
of the Company maintained for that purpose in accordance with the terms of the Indenture, in such
coin or currency of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay Interest, semiannually on March 15 and
September 15 of each year (each, an “Interest Payment Date”), commencing September 15, 2010, on
said principal sum at said office or agency, in like coin or currency, at the rate per annum of
10.125%, from the March 15 or September 15, as the case may be, next preceding the date of this
Debenture to which Interest has been paid or duly provided for, unless the date hereof is a date to
which Interest has been paid or duly provided for, in which case from the date of this Debenture,
or unless no Interest has been paid or duly provided for on the Debentures, in which case from
March 26, 2010 until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after any March 1 or September 1, as the case
may be, and before the following March 15 or September 15, this Debenture shall bear Interest from
such March 15 or September 15; provided that if the Company shall default in the payment of
Interest due on such March 15 or September 15, then this Debenture shall bear Interest from the
next preceding March 15 or September 15 to which Interest has been paid or duly provided for or, if
no Interest has been paid or duly provided for on such Debenture, from March 26, 2010. Except as
otherwise provided in the Indenture, the Interest payable on the Debenture pursuant to the
Indenture on any March 15 or September 15 will be paid to the Person entitled thereto as it appears
in the Debenture Register at the close of business on the record date, which shall be the March 1
or September 1 (whether or not a Business Day) (each a “Record Date”) next preceding such March 15
or September 15, as provided in the Indenture; provided that any such Interest not punctually paid
or duly provided for shall be payable as provided in the Indenture. The Company shall pay
Interest (i) on any Debentures in certificated form by check mailed to the address of the Person
entitled thereto as it appears in the Debenture Register (provided that the Debentureholder with an
aggregate principal amount in excess of $2,000,000 shall, at the written election of such
Debentureholder, be paid by wire transfer of immediately available funds) or (ii) on any Global
Debenture by wire transfer of immediately available funds to the account of the Depositary or its
nominee.





 




	 	 	 
	1	 	For Global Notes only.




 


A-3









 









The Company promises to pay interest on overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) Interest at the rate of 1% per annum.



Reference is made to the further provisions of this Debenture set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Debenture the right to convert
this Debenture into Common Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth at this place.



This Debenture shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by the laws of the State of
New York, without regard to conflicts of laws principles thereof.



This Debenture shall not be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.


 


A-4









 






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



	 	 	 	 	 
	 	SAFEGUARD SCIENTIFICS, INC.
 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	By:  	 	 



 


A-5









 





	 	 	 	 	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION




This is one of the Debentures described in the within-named Indenture.




U.S. Bank National Association, as Trustee




	 	 	 	 	 
	By:

	 	  

Authorized
Signatory
	 	 
	 
	 	 	 	 
	, or
	 	 	 	 
	 
	 	 	 	 
	By:

	 	  

As
Authenticating Agent
	 	 
	 

	 	(if different from Trustee)	 	 
	 
	 	 	 	 
	By:

	 	  

Authorized
Signatory
	 	 






 


A-6









 





FORM OF REVERSE OF DEBENTURE




SAFEGUARD SCIENTIFICS, INC.




10.125% CONVERTIBLE SENIOR DEBENTURE DUE MARCH 15, 2014




This Debenture is one of a duly authorized issue of Debentures of the Company, designated as
its 10.125% Convertible Senior Debentures Due March 15, 2014 (the “Debentures”), limited in
aggregate principal amount to $46,936,000, issued and to be issued under and pursuant to an
Indenture dated as of March 26, 2010 (the “Indenture”), between the Company and U.S. Bank National
Association, as trustee (the “Trustee”), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of the Debentures.



In case an Event of Default shall have occurred and be continuing, the principal of and
accrued and unpaid Interest on all Debentures may be declared by either the Trustee or the holders
of not less than 25% in aggregate principal amount of the Debentures then Outstanding, and upon
said declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.



The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of at least a majority in aggregate principal amount of the Debentures at the time
Outstanding, to execute supplemental indentures adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Debentures; provided that no such supplemental
indenture shall (i) extend the fixed maturity of any Debenture, reduce the rate or extend the time
of payment of Interest thereon, reduce the principal amount thereof, reduce any amount payable upon
repurchase thereof, impair the right of any Debentureholder to institute suit for the payment
thereof, make the principal thereof or Interest thereon payable in any coin or currency other than
that provided in the Debentures, change the obligation of the Company to repurchase any Debenture
upon the happening of a Designated Event in a manner adverse to the holders of the Debentures,
impair the right to convert the Debentures into Common Stock subject to the terms set forth in the
Indenture, including Article 13 thereof, reduce the number of shares of Common Stock or amount of
other property receivable upon conversion of the Debentures, modify any of the provisions of
Section 5.07 or Section 9.02 thereof, except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without the consent of the
Holder of each Debenture so affected, change any obligation of the Company to maintain an office or
agency in the places and for the purposes set forth in Section 3.02 thereof, or reduce the quorum
or voting requirements set forth in Article 8 or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of all Debentures then Outstanding.


 


A-7









 





Subject to the provisions of the Indenture, the holders of a majority in aggregate principal
amount of the Debentures at the time Outstanding may on behalf of the holders of all of the
Debentures waive any past default or Event of Default under the Indenture and its consequences
except (A) a default in the payment of Interest, or the principal of, any of the Debentures,
(B) a failure by the Company to convert any Debentures into Common Stock of the Company, (C) a
default in respect of a covenant or provisions of the Indenture that under the terms of the
Indenture cannot be modified or amended without the consent of the holders of each or all
Debentures then Outstanding or affected thereby, or (D) a default in the payment of the repurchase
price paid pursuant to ARTICLE 3 of the Indenture. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future holders and owners of this Debenture and any Debentures that may be
issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debentures.



No provision of this Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and Interest on this
Debenture at the place, at the respective times, at the rate and in the coin or currency herein
prescribed.



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



The Debentures are issuable in fully registered form, without coupons, in denominations of
$1,000 principal amount and any multiple of $1,000. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, without payment of any service charge but with payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection with any
registration or exchange of Debentures, Debentures may be exchanged for a like aggregate principal
amount of Debentures of any other authorized denominations.



If a Designated Event occurs at any time prior to maturity of the Debentures, the Debentures
may be repurchased at the option of the holders of the Debentures on a Designated Event Repurchase
Date, not less than 20 nor more than 35 Business Days after notice thereof, at the option of the
holder of this Debenture at a repurchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid Interest to (but excluding) the repurchase date; provided that if
such Designated Event Repurchase Date falls after a Record Date and on or prior the corresponding
Interest Payment Date, the Interest payable on such Interest Payment Date shall be paid to the
holder of record of this Debenture on the corresponding Record Date. The Debentures will be
repurchased in multiples of $1,000 principal amount. The Company shall mail, or cause the Trustee
to mail, to all holders of record of the Debentures a notice of the occurrence of a Designated
Event and of the repurchase right arising as a result thereof on or before the 20th day after the
occurrence of such Designated Event. For a Debenture to be so repurchased at the option of the
holder, the Company must receive at the office or agency of the Company maintained for that purpose
in accordance with the terms of the Indenture, such Debenture with the form entitled “Option to
Elect Repurchase Upon a Designated Event” on the reverse thereof duly completed, together with such
Debenture, duly endorsed for transfer, on or before the Designated Event Expiration Time.


 


A-8









 





Holders of Debentures have the right to withdraw any Option to Elect Repurchase Upon a
Designated Event or by delivering to the Trustee (or other paying agent appointed by the
Company) a written notice of withdrawal up to the close of business, on the Designated Event
Repurchase Date all as provided in the Indenture.



If cash, sufficient to pay the purchase price of all Debentures or portions thereof to be
purchased as of the Designated Event Repurchase Date is deposited with the Trustee (or other paying
agent appointed by the Company), on the Business Day following the Designated Event Repurchase
Date, Interest will cease to accrue on such Debentures (or portions thereof) immediately after such
Designated Event Repurchase Date and the holder thereof shall have no other rights as such other
than the right to receive the repurchase price upon surrender of such Debenture.



In compliance with the provisions of the Indenture, prior to the final maturity date of the
Debentures, the Holder hereof has the right, at its option, to convert each $1,000 principal amount
of the Debentures into 60.6061 shares of the Company’s Common Stock (a conversion price of $16.50
per share), as such shares shall be constituted at the date of conversion and subject to adjustment
from time to time as provided in the Indenture, upon surrender of this Debenture with the form
entitled “Conversion Notice” on the reverse thereof duly completed, to the Company at the office or
agency of the Company maintained for that purpose in accordance with the terms of the Indenture, or
at the option of such Holder, the Corporate Trust Office, and, unless the shares issuable on
conversion are to be issued in the same name as this Debenture, duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the Company duly executed by, the Holder or by his
duly authorized attorney. The Company will notify the Holder thereof of any event triggering the
right to convert the Debentures as specified above in accordance with the Indenture.



No adjustment in respect of Interest on any Debenture converted or dividends on any shares
issued upon conversion of such Debenture will be made upon any conversion except as set forth in
the next sentence. If this Debenture (or portion hereof) is surrendered for conversion during the
period from the close of business on any Record Date for the payment of Interest to the close of
business on the Business Day preceding the following Interest Payment Date, this Debenture (or
portion hereof being converted) must be accompanied by payment, in immediately available funds or
other funds acceptable to the Company, of an amount equal to the Interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided that no such payment shall
be required (1) if the Company has specified a repurchase date that is after a Record Date and
prior to the next Interest Payment Date, (2) if the Company has specified a Designated Event
Repurchase Date that is during such period or (3) to the extent of any overdue Interest, if any
overdue Interest exists at the time of conversion with respect to such Debenture.



No fractional shares will be issued upon any conversion, but an adjustment and payment in cash
will be made, as provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Debenture or Debentures for conversion.


 


A-9









 





A Debenture in respect of which a holder is exercising its right to require repurchase upon a
Designated Event may be converted only if such holder withdraws its election to exercise either
such right in accordance with the terms of the Indenture.



Upon due presentment for registration of transfer of this Debenture at the office or agency of
the Company maintained for that purpose in accordance with the terms of the Indenture, a new
Debenture or Debentures of authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture,
without charge except for any tax, assessment or other governmental charge imposed in connection
therewith.



The Company, the Trustee, any authenticating agent, any paying agent, the Conversion Agent and
any Debenture Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Debenture (whether or not this Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Company or any Debenture Registrar)
for the purpose of receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other authenticating agent
nor any paying agent nor other Conversion Agent nor any Debenture Registrar shall be affected by
any notice to the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability for monies payable on
this Debenture.



No recourse for the payment of the principal of or Interest on this Debenture, or for any
claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any supplemental indenture or in any
Debenture, or because of the creation of any indebtedness represented thereby, shall be had against
any incorporator, shareholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of law
or by the enforcement of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.



Terms used in this Debenture and defined in the Indenture are used herein as therein defined.


 


A-10









 





ABBREVIATIONS




The following abbreviations, when used in the inscription of the face of this Debenture, shall
be construed as though they were written out in full according to applicable laws or regulations.



	 	 	 	 	 	 	 
	TEN COM -

	 	as tenants in common
	 	UNIF GIFT MIN ACT - _____ Custodian _____
	 	 
	TEN ENT -

	 	as tenant by the entireties
	 	(Cust) (Minor)	 	 
	JT TEN -

	 	as joint tenants with
right of survivorship and
not as tenants in common
	 	under Uniform Gifts to Minors Act

 
 

(State)
	 	 






Additional abbreviations may also be used though not in the above list.


 


A-11









 





CONVERSION NOTICE





			
	TO:	 	SAFEGUARD SCIENTIFICS, INC.

U.S. Bank National Association





The undersigned registered owner of this Debenture hereby irrevocably exercises the option to
convert this Debenture, or the portion thereof (which is $1,000 or a multiple thereof) below
designated, into shares of Common Stock of Safeguard Scientifics, Inc. in accordance with the terms
of the Indenture referred to in this Debenture, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for fractional shares and any
Debentures representing any unconverted principal amount hereof, be issued and delivered to the
registered Holder hereof unless a different name has been indicated below. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares
or any portion of this Debenture not converted are to be issued in the name of a person other than
the undersigned, the undersigned will provide the appropriate information below and pay all
transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Debenture.



Dated:                                         




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	 	 
	 	
 	 
	 	Signature(s) 	 
	 	 	 
	 
	 	Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Debenture Registrar, which requirements include
membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by
the Debenture Registrar in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.

 
	 	
 	 
	 	Signature Guarantee 	 
	 	 	 



 


A-12









 







Fill in the registration of shares of Common Stock if to be issued, and Debentures if to be
delivered, other than to and in the name of the registered Holder:



	 	 	 
	 
 

(Name)

	 	 
	 
	 	 
	  

(Street
Address)

	 	 
	 
	 	 
	  

(City,
State and Zip Code)

	 	 
	 
	 	 
	  

Please
print name and address

	 	 
	 
	 	 
	Principal amount to be converted

(if less than all):
	 	 
	 
	 	 
	$__________________________________


	 	 
	 
	 	 
	Social Security or Other Taxpayer
	 	 
	Identification Number:
	 	 
	 
	 	 
	 
 


	 	 






 


A-13









 





OPTION TO ELECT REPURCHASE

UPON A DESIGNATED EVENT





			
	TO:	 	SAFEGUARD SCIENTIFICS, INC.

U.S. Bank National Association





Pursuant to the terms of the Indenture and the Debentures, the undersigned registered owner of
this Debenture hereby irrevocably acknowledges receipt of a notice from Safeguard Scientifics, Inc.
(the “Company”) as to the occurrence of a Designated Event with respect to the Company and requests
and instructs the Company to repurchase the entire principal amount of this Debenture, or the
portion thereof (which is $1,000 or a multiple thereof) below designated, in accordance with the
terms of the Indenture referred to in this Debenture at the price of 100% of such entire principal
amount or portion thereof, together with accrued and unpaid interest to, but excluding, the
Designated Event Repurchase Date, to the registered holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.



Dated:                                         




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



Debenture Certificate Number, if
applicable: __________________




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

 	 
	 	
 	 
	 	 	 
	 	
 	 
	 	Social Security or Other Taxpayer Identification Number 	 
	 	 	 



 


A-14









 





	 	 	 	 	 



Schedule I




[Include Schedule I only for a Global Note]




SAFEGUARD SCIENTIFICS, INC.

10.125% Convertible Senior Debenture Due March 15, 2014




No. [____]




	 	 	 	 	 	 	 
	 	 	 	 	Notation Explaining	 	Authorized Signature
	 	 	 	 	Principal Amount	 	of Trustee or
	Date	 	Principal Amount	 	Recorded	 	Custodian
	 
	 	 	 	 	 	 






 


A-15









 





EXHIBIT B




The following table sets forth the number of Additional Shares to be received per $1,000 principal
amount of Notes for each Stock Price and Effective Date set forth below:



Stock Price




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date	 	$12.00	 	 	$12.50	 	 	$15.00	 	 	$16.50	 	 	$17.50	 	 	$20.00	 	 	$25.00	 	 	$30.00	 	 	$40.00	 	 	$50.00	 	 	$60.00	 
	March 15, 2010
	 	 	22.727	 	 	 	21.385	 	 	 	16.508	 	 	 	14.468	 	 	 	13.350	 	 	 	11.143	 	 	 	8.247	 	 	 	6.418	 	 	 	4.213	 	 	 	2.925	 	 	 	2.090	 
	March 15, 2011
	 	 	22.727	 	 	 	19.187	 	 	 	14.313	 	 	 	12.374	 	 	 	11.338	 	 	 	9.358	 	 	 	6.875	 	 	 	5.355	 	 	 	3.542	 	 	 	2.481	 	 	 	1.787	 
	March 15, 2012
	 	 	22.727	 	 	 	16.890	 	 	 	11.692	 	 	 	9.787	 	 	 	8.820	 	 	 	7.081	 	 	 	5.105	 	 	 	3.975	 	 	 	2.657	 	 	 	1.885	 	 	 	1.373	 
	March 15, 2013
	 	 	22.727	 	 	 	15.545	 	 	 	8.850	 	 	 	6.695	 	 	 	5.713	 	 	 	4.189	 	 	 	2.866	 	 	 	2.235	 	 	 	1.518	 	 	 	1.094	 	 	 	0.812	 
	March 15, 2014
	 	 	22.727	 	 	 	19.394	 	 	 	6.061	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 	 	 	0.000	 







 


B-1