EX-4.1






Exhibit 4.1




Execution Version



 





COVANTA HOLDING CORPORATION




3.25% Cash Convertible Senior Notes due 2014




 






INDENTURE




Dated as of May 22, 2009




 






WELLS FARGO BANK, NATIONAL ASSOCIATION


Trustee




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 Definitions and Incorporation by Reference
	 	 	1	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Incorporation by Reference of Trust Indenture Act
	 	 	11	 
	SECTION 1.03. Rules of Construction
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 2 The Notes
	 	 	12	 
	SECTION 2.01. Designation, Amount and Issuance of Notes
	 	 	12	 
	SECTION 2.02. Form of the Notes
	 	 	12	 
	SECTION 2.03. Date and Denomination of Notes; Payment at Maturity; Payment of
Interest
	 	 	13	 
	SECTION 2.04. Execution and Authentication
	 	 	14	 
	SECTION 2.05. Registrar and Paying Agent
	 	 	15	 
	SECTION 2.06. Paying Agent to Hold Money in Trust
	 	 	15	 
	SECTION 2.07. Noteholder Lists
	 	 	16	 
	SECTION 2.08. Exchange and Registration of Transfer of Notes; Restrictions on
Transfer
	 	 	16	 
	SECTION 2.09. Replacement Notes
	 	 	20	 
	SECTION 2.10. Outstanding Notes
	 	 	21	 
	SECTION 2.11. Temporary Notes
	 	 	21	 
	SECTION 2.12. Cancellation
	 	 	21	 
	SECTION 2.13. Defaulted Interest
	 	 	22	 
	SECTION 2.14. CUSIP and ISIN Numbers
	 	 	22	 
	SECTION 2.15. Automatic Exchange from Restricted Global Note to Unrestricted Global
Note
	 	 	23	 
	SECTION 2.16. Additional Notes
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3 Repurchase of Notes
	 	 	24	 
	SECTION 3.01. Repurchase at Option of Holders Upon a Fundamental Change
	 	 	24	 
	SECTION 3.02. Fundamental Change Company Notice
	 	 	26	 
	SECTION 3.03. Effect of Fundamental Change Repurchase Notice; Withdrawal
	 	 	27	 






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	 	 	Page
	SECTION 3.04. Deposit of Fundamental Change Repurchase Price
	 	 	28	 
	SECTION 3.05. Payment of Notes Tendered for Repurchase
	 	 	28	 
	SECTION 3.06. Notes Repurchased in Part
	 	 	28	 
	SECTION 3.07. Covenant to Comply with Securities Laws Upon Repurchase of Notes
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 4 Covenants
	 	 	29	 
	SECTION 4.01. Payment of Notes
	 	 	29	 
	SECTION 4.02. Maintenance of Office or Agency
	 	 	29	 
	SECTION 4.03. Reports; 144A Information
	 	 	30	 
	SECTION 4.04. Existence
	 	 	30	 
	SECTION 4.05. Payment of Taxes and Other Claims
	 	 	31	 
	SECTION 4.06. Compliance Certificate
	 	 	31	 
	SECTION 4.07. Further Instruments and Acts
	 	 	31	 
	SECTION 4.08. Additional Interest Notification
	 	 	31	 
	SECTION 4.09. Statement by Officer as to Default
	 	 	31	 
	SECTION 4.10. Waiver of Stay, Extension or Usury Laws
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 5 Successor Company
	 	 	32	 
	SECTION 5.01. When Company May Merge or Transfer Assets
	 	 	32	 
	SECTION 5.02. Successor to Be Substituted
	 	 	33	 
	SECTION 5.03. Opinion of Counsel to Be Given Trustee
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 6 Defaults and Remedies
	 	 	33	 
	SECTION 6.01. Events of Default
	 	 	33	 
	SECTION 6.02. Acceleration
	 	 	35	 
	SECTION 6.03. Additional Interest
	 	 	36	 
	SECTION 6.04. Other Remedies
	 	 	37	 
	SECTION 6.05. Waiver of Past Defaults
	 	 	37	 
	SECTION 6.06. Control by Majority
	 	 	38	 
	SECTION 6.07. Limitation on Suits
	 	 	38	 
	SECTION 6.08. Rights of Noteholders to Receive Payment
	 	 	39	 
	SECTION 6.09. Collection Suit by Trustee
	 	 	39	 






- ii - 









 






	 	 	 	 	 
	 	 	Page
	SECTION 6.10. Trustee May File Proofs of Claim
	 	 	39	 
	SECTION 6.11. Priorities
	 	 	39	 
	SECTION 6.12. Undertaking for Costs
	 	 	40	 
	SECTION 6.13. Failure to Comply with Reporting Covenant
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 7 Trustee
	 	 	41	 
	SECTION 7.01. Duties of Trustee
	 	 	41	 
	SECTION 7.02. Rights of Trustee
	 	 	42	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	43	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	43	 
	SECTION 7.05. Notice of Defaults
	 	 	43	 
	SECTION 7.06. Reports by Trustee to Noteholders
	 	 	44	 
	SECTION 7.07. Compensation and Indemnity
	 	 	44	 
	SECTION 7.08. Replacement of Trustee
	 	 	45	 
	SECTION 7.09. Successor Trustee by Merger
	 	 	45	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	46	 
	SECTION 7.11. Preferential Collection of Claims Against Company
	 	 	46	 
	 
	 	 	 	 
	ARTICLE 8 Discharge of Indenture
	 	 	46	 
	SECTION 8.01. Discharge of Liability on Notes
	 	 	46	 
	SECTION 8.02. Application of Trust Money
	 	 	46	 
	SECTION 8.03. Repayment to Company
	 	 	47	 
	SECTION 8.04. Reinstatement
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 9 Amendments
	 	 	47	 
	SECTION 9.01. Without Consent of Noteholders
	 	 	47	 
	SECTION 9.02. With Consent of Noteholders
	 	 	48	 
	SECTION 9.03. Compliance with Trust Indenture Act
	 	 	49	 
	SECTION 9.04. Revocation and Effect of Consents and Waivers
	 	 	49	 
	SECTION 9.05. Notation on or Exchange of Notes
	 	 	50	 
	SECTION 9.06. Trustee to Sign Amendments
	 	 	50	 






- iii - 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE 10 Cash Conversion of Notes
	 	 	50	 
	SECTION 10.01. Right to Cash Convert
	 	 	50	 
	SECTION 10.02. Cash Conversion Procedures; Settlement Upon Conversion; No Adjustment
for Interest or Dividends
	 	 	52	 
	SECTION 10.03. Adjustment to Conversion Rate Upon a Non-Stock Change of Control

	 	 	54	 
	SECTION 10.04. Adjustment of Conversion Rate
	 	 	55	 
	SECTION 10.05. Effect of Reclassification, Consolidation, Merger or Sale
	 	 	64	 
	SECTION 10.06. Notice to Holders Prior to Certain Actions
	 	 	65	 
	SECTION 10.07. Shareholder Rights Plans
	 	 	65	 
	SECTION 10.08. Reserved
	 	 	66	 
	SECTION 10.09. Responsibility of Trustee
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 11 Miscellaneous
	 	 	66	 
	SECTION 11.01. Trust Indenture Act Controls
	 	 	66	 
	SECTION 11.02. Notices
	 	 	66	 
	SECTION 11.03. Communication by Noteholders with Other Noteholders
	 	 	67	 
	SECTION 11.04. Certificate and Opinion as to Conditions Precedent
	 	 	67	 
	SECTION 11.05. Statements Required in Certificate or Opinion
	 	 	67	 
	SECTION 11.06. When Notes Disregarded
	 	 	68	 
	SECTION 11.07. Rules by Trustee, Paying Agent and Registrar
	 	 	68	 
	SECTION 11.08. Business Day
	 	 	68	 
	SECTION 11.09. GOVERNING LAW, WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND
SERVICE
	 	 	68	 
	SECTION 11.10. No Recourse Against Others
	 	 	69	 
	SECTION 11.11. Successors
	 	 	69	 
	SECTION 11.12. Multiple Originals
	 	 	69	 
	SECTION 11.13. Table of Contents; Headings
	 	 	69	 
	SECTION 11.14. Severability Clause
	 	 	69	 
	SECTION 11.15. Calculations
	 	 	70	 
	SECTION 11.16. U.S.A. Patriot Act
	 	 	70	 






	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Note






- iv - 









 





          INDENTURE dated as of May 22, 2009 between COVANTA HOLDING CORPORATION, a Delaware
corporation, as issuer (the “Company”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States, as trustee (the “Trustee”).



          WHEREAS, the Company has duly authorized the creation of an issue of its 3.25% Cash
Convertible Senior Notes due 2014 (the “Notes”), having the terms, tenor, amount and other
provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture; and



          WHEREAS, all things necessary to make the Notes, when the Notes are duly executed by the
Company and authenticated and delivered hereunder and duly issued by the Company, the valid
obligations of the Company, and to make this Indenture a valid and binding agreement of the
Company, in accordance with their and its terms, have been done and performed, and the execution of
this Indenture and the issue hereunder of the Notes have in all respects been duly authorized,



          NOW, THEREFORE, THIS INDENTURE WITNESSETH:



          For and in consideration of the premises and the purchase of the Notes by the holders thereof,
it is mutually covenanted and agreed, for the equal and proportionate benefit of all holders of the
Notes, as follows:



ARTICLE 1




Definitions and Incorporation by Reference




          SECTION 1.01.   Definitions. The terms defined in this Section 1.01 (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 Section 1.01. All other terms used in this Indenture that are defined in the Trust Indenture
Act or which are by reference therein defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires) shall have the respective 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 include the plural as well as the singular.



          “Additional Interest” means all amounts, if any, payable pursuant to Section 6.03.



          “Additional Notes” has the meaning specified in Section 2.16.



          “Additional Notes Board Resolutions” means resolutions duly adopted by the Board of Directors
and delivered to the Trustee in an Officers’ Certificate providing for the issuance of Additional
Notes.



 









 





          “Additional Shares” has the meaning specified in Section 10.03(a).



          “Adjustment Event” has the meaning specified in Section 10.04(k).



          “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 Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.



          “Agent Members” has the meaning specified in Section 2.08(b)(vi).



          “Automatic Exchange” has the meaning specified in Section 2.15.



          “Automatic Exchange Notice” has the meaning specified in Section 2.15.



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



          “Bid Solicitation Agent” means the financial institution appointed by the Company to solicit
bids for the Trading Price of the Notes in accordance with Section 10.01(6). The Bid Solicitation
Agent appointed by the Company shall initially be the Trustee.



          “Board of Directors” means the Board of Directors of the Company or, other than in the case of
the definition of “Continuing Directors,” any committee thereof duly authorized to act on behalf of
such Board.



          “Business Day” has the meaning specified in Section 11.08.



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



          “Cash Conversion Notice” has the meaning specified in Section 10.02(a).



          “Cash Conversion Obligation” has the meaning specified in Section 10.01.



          “Cash Conversion Settlement Amount” has the meaning specified in Section 10.02(b).



          “Closing Sale Price” of Common Stock on any date means:




     (i) the closing sale price per share (or if no closing sale price is reported, the
average of the closing bid and closing 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



- 2 -









 







reported in composite transactions for the principal U.S. securities exchange on which
Common Stock is traded; or




     (ii) if Common Stock is not listed on a U.S. national or regional securities exchange,
the last quoted bid price for Common Stock on that date in the over-the-counter market as
reported by Pink OTC Markets Inc. or a similar organization; or




     (iii) if Common Stock is not so quoted by Pink OTC Markets Inc. or a similar
organization, as determined by a nationally recognized securities dealer retained by the
Company for that purpose.



          “Code” means the Internal Revenue Code of 1986, as amended.



          “Common Equity” of any Person means Capital Stock of such Person that is generally entitled to
(i) vote in the election of directors of such Person or (ii) if such Person is not a corporation,
vote or otherwise participate in the selection of the governing body, partners, managers or others
that will control the management or policies of such Person.



          “Common Stock” means the Common Stock, par value $0.10 per share, of the Company, or such
other capital stock into which the Company’s Common Stock is reclassified or changed.



          “Company” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained herein and required by
the Trust Indenture Act, each other obligor on the indenture securities.



          “Continuing Director” means, as of any date of determination, any member of the Board of
Directors who (i) was a member of the Board of Directors on the date of this Indenture; or (ii) was
nominated for election or elected to the Board of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of Directors at the time of such new director’s
nomination or election.



          “Conversion Agent” means the agency appointed by the Company to which Notes may be presented
for conversion. The Conversion Agent appointed by the Company shall initially be the Trustee.



          “Conversion Date” has the meaning specified in Section 10.02(a).



          “Conversion Period” means the period of fifty (50) consecutive Settlement Period Trading Days:




     (1) with respect to Cash Conversion Notices received during the period beginning 55
Scheduled Trading Days preceding the Maturity Date, beginning on and including the
53rd Scheduled Trading Day immediately preceding the Maturity Date;




     (2) with respect to cash conversions in connection with a Fundamental Change, beginning
on and including the 53rd Scheduled Trading Day immediately



- 3 -









 







preceding the Fundamental Change Repurchase Date relating to such Fundamental Change;
and




     (3) in all other cases, beginning on and including the third Settlement Period Trading
Day following the Company’s receipt of a Holder’s Cash Conversion Notice.



          “Conversion Price” on any date of determination means $1,000 divided by the Conversion Rate as
of such date.



          “Conversion Rate” has the meaning specified in Section 10.01.



          “Corporate Trust Office” means the office of the Trustee at which any particular time its
corporate trust business shall be principally administered.



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



          “Daily Conversion Value” for each $1,000 principal amount of Notes for any Settlement Period
Trading Day equals 1/50th of the product of:




     (1) the Conversion Rate in effect on that Settlement Period Trading Day, multiplied by




     (2) the VWAP of Common Stock (or the consideration into which Common Stock has been
converted in connection with certain corporate transactions) on that day.



          “declaration date” and “date of declaration” shall mean, with respect to a distribution by the
Company to all or substantially all of its holders of Common Stock, the date on which the
distribution has been authorized by the Board of Directors under applicable law.



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



          “Defaulted Interest” has the meaning specified in Section 2.13.



          “Depositary” means the clearing agency registered under the Exchange Act that is designated to
act as the Depositary for the Global Notes. DTC 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.



          “Determination Date” has the meaning specified in Section 10.04(k).



          “DTC” means The Depository Trust Company.



          “Effective Date” has the meaning specified in Section 10.03(a).



          “Event of Default” has the meaning specified in Section 6.01.



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



- 4 -









 





          “Ex-Dividend Date” means, in respect of a dividend or distribution to holders of Common Stock,
the first date upon which a sale of Common Stock does not automatically transfer the right to
receive the relevant dividend or distribution from the seller of Common Stock to its buyer.



          “Expiration Date” has the meaning specified in Section 10.04(e).



          “Expiration Time” has the meaning specified in Section 10.04(e).



          “Fair Market Value” means the amount that a willing buyer would pay to a willing seller in an
arms’ length transaction, as determined by the Board of Directors.



          “Full Interest Period” means a period of days during which interest accrues from, and
including, an Interest Payment Date to, but excluding, the next Interest Payment Date.



          “Fundamental Change” shall be deemed to have occurred at such time after the original issuance
of the Notes that any of the following occurs:




     (1) upon filing with the SEC of any Schedule TO, or any other schedule or form or
report under the Exchange Act disclosing the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any “person” or
“group” becomes or has become the “beneficial owner” (as these terms are defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of
the Company’s Capital Stock that is at the time entitled to vote by the holder thereof in
the election of the Board of Directors (or comparable body); provided, however, that such a
filing will not constitute a Fundamental Change if the filing occurs in connection with a
transaction (i) in which Common Stock is exchanged for common stock, depositary receipts of
other certificates representing Common Equity interests in such beneficial owner and (ii)
pursuant to which the holders of 50% or more of the total voting power of all shares of the
Company’s Capital Stock entitled to vote generally in elections of directors immediately
prior to such transaction have the right to exercise, directly or indirectly, 50% or more of
the total voting power of all shares of such beneficial owner’s capital stock entitled to
vote generally in elections of directors of such beneficial owner immediately after giving
effect to such transaction;




     (2) the first day on which a majority of the members of the Board of Directors are not
Continuing Directors;




     (3) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (4) the consolidation or merger of the Company with or into any other “person” (as this
term is used in Section 13(d)(3) of the Exchange Act), or the sale, lease, transfer,
conveyance or other disposition, in one or a series of related transactions, of all or
substantially all of the Company’s assets and those of its subsidiaries taken as a whole to
any “person” (as this term is used in Section 13(d)(3) of the Exchange Act), other than:



- 5 -









 






     (a) any transaction:




     (i) that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of the Company’s Capital Stock; and




     (ii) pursuant to which the holders of 50% or more of the total voting
power of all shares of the Company’s Capital Stock entitled to vote
generally in elections of directors of the Company immediately prior to such
transaction have the right to exercise, directly or indirectly, 50% or more
of the total voting power of all shares of the Company’s Capital Stock
entitled to vote generally in elections of directors of the continuing or
surviving Person (or any parent thereof) immediately after giving effect to
such transaction; or




     (b) any merger primarily for the purpose of changing the Company’s jurisdiction
of incorporation and resulting in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of Common Stock of the
surviving entity; or




     (5) the termination of trading of Common Stock, which will be deemed to have occurred
if Common Stock or other common stock upon which the Cash Conversion Settlement Amount upon
cash conversion will be based is neither listed for trading on a U.S. national securities
exchange nor approved for quotation on any U.S. system of automated dissemination of
quotations of securities prices, and no American Depositary Shares or similar instruments
for such Common Stock are so listed or approved for listing or quotation in the United
States.




     However, a Fundamental Change will be deemed not to have occurred if more than 90% of
the consideration in the transaction or transactions (other than cash payments for
fractional shares and cash payments made in respect of dissenters’ appraisal rights) which
otherwise would constitute a Fundamental Change under clauses (1) or (4) above consists of
 shares of common stock, depositary receipts or other certificates representing Common Equity
interests traded or to be traded immediately following such transaction on a U.S. national
securities exchange and, as a result of the transaction or transactions, the Cash Conversion
Settlement Amount upon cash conversion of the Notes becomes based on such common stock,
depositary receipts or other certificates representing Common Equity interests (and any
rights attached thereto) and other applicable consideration.



          For purposes of this definition, whether a “person” is a “beneficial owner” shall be
determined in accordance with Rule 13d-3 under the Exchange Act and “person” includes any syndicate
or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.



          “Fundamental Change Company Notice” has the meaning specified in Section 3.02.



- 6 -









 





          “Fundamental Change Repurchase Date” has the meaning specified in Section 3.01(a).



          “Fundamental Change Repurchase Notice” has the meaning specified in Section 3.01(c).



          “Fundamental Change Repurchase Price” has the meaning specified in Section 3.01(a).



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



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



          “Initial Purchasers” means each of Barclays Capital Inc., Citigroup Global Markets Inc., J.P.
Morgan Securities Inc., Calyon Securities (USA) Inc., Avondale Partners LLC and Deutsche Bank
Securities Inc. (each, an “Initial Purchaser”).



          “interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes, including Defaulted Interest, if any, Additional Interest, if any, and Reporting
Additional Interest, if any.



          “Interest Payment Date” has the meaning specified in Section 2.03(c).



          “Issue Date” means the date of initial issuance of Notes pursuant to this Indenture.



          “Market Disruption Event” means, if Common Stock is listed on the NYSE or another U.S.
national securities exchange, the occurrence or existence during the one-half hour period ending on
the scheduled close of trading on any Trading Day of any material suspension or limitation imposed
on trading (by reason of movements in price exceeding limits permitted by the stock exchange or
otherwise) in Common Stock on such exchange or in any options, contracts or future contracts
relating to Common Stock on the primary market for the trading of such options, contracts or future
contracts.



          “Maturity Date” means June 1, 2014.



          “Non-Stock Change of Control” means a transaction described under clause (1) or clause (4) of
the definition of Fundamental Change (without regard to the proviso in clause (1) or clause
(4)(a)(ii) of the definition of “Fundamental Change”) pursuant to which 10% or more of the
consideration for Common Stock (other than cash payments for fractional shares, if applicable, and
cash payments made in respect of dissenters’ appraisal rights) in such transaction consists of cash
or securities (or other property) that are not shares of Common Stock, depositary receipts or other
certificates representing Common Equity interests traded or scheduled to be traded immediately
following such transaction on a U.S. national securities exchange.



          “Noteholder” or “Holder” means the Person in whose name a Note is registered on the
Registrar’s books.



- 7 -









 





          “Notes” means any Notes issued, authenticated and delivered under this Indenture, including
any Global Notes.



          “NYSE” means the New York Stock Exchange.



          “Offering Memorandum” means the Offering Memorandum prepared by the Company and dated May 18,
2009 in relation to the sale of the Notes by the Initial Purchasers.



          “Officer” means the Chief Executive Officer, Chairman of the Board, the President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.



          “Officers’ Certificate” means a certificate signed by two Officers. One of the officers
executing an Officers’ Certificate in accordance with Section 4.06 shall be the chief executive
officer, chief financial officer or chief operating officer of the Company.



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



          “Paying Agent” has the meaning specified in Section 2.05.



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



          “Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.



          “protected purchaser” has the meaning specified in Section 2.09.



          “Purchase Agreement” means the Purchase Agreement, dated May 18, 2009 among the Company and
the Initial Purchasers relating to the offering and sale of the Notes.



          “Reference Property” has the meaning specified in Section 10.05.



          “Register” has the meaning specified in Section 2.05.



          “Registrar” has the meaning specified in Section 2.05.



          “Regular Record Date” means, with respect to any Interest Payment Date of the Notes, the May
15 and November 15 preceding the applicable June 1 and December 1 Interest Payment Date,
respectively.



          “Reorganization Event” has the meaning specified in Section 10.05.



          “Reporting Additional Interest” has the meaning specified in Section 6.13.



- 8 -









 





          “Resale Restriction Termination Date” has the meaning specified in Section 2.08(d).



          “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 or familiarity with
the particular subject.



          “Restricted Global Note” has the meaning specified in Section 2.15.



          “Restricted Securities” has the meaning specified in Section 2.08(c).



          “Rule 144A” means Rule 144A as promulgated under the Securities Act as it may be amended from
time to time hereafter.



          “Schedule TO” means a Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the
Exchange Act.



          “Scheduled Trading Day” means any day on which the principal U.S. national securities exchange
or market on which Common Stock is listed or admitted for trading is scheduled to be open for
trading.



          “SEC” means the Securities and Exchange Commission.



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



          “Settlement Period Market Disruption Event” means:




     (i) a failure by the securities exchange or market referenced in the definition of
Settlement Period Trading Day to open for trading during its regular trading session; or




     (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any
Scheduled Trading Day for Common Stock of an aggregate one-half hour of suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by
the NYSE or otherwise) in Common Stock or in any options, contracts or futures contracts
relating to Common Stock.



          “Settlement Period Trading Day” means a day during which:




     (i) trading in Common Stock generally occurs on the principal U.S. national securities
exchange or market on which Common Stock is listed or admitted for trading; and




     (ii) there is no Settlement Period Market Disruption Event;


provided, however, that if Common Stock is not traded on any U.S. national securities exchange or
market, then Settlement Period Trading Day shall mean a day that the VWAP of Common Stock can be
obtained.




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



          “Special Interest Payment Date” has the meaning specified in Section 2.13(a).



          “Special Record Date” has the meaning specified in Section 2.13(a).



          “Spin-Off” has the meaning specified in Section 10.04(c).



          “Stock Price” has the meaning specified in Section 10.03(b).



          “Stock Price Measurement Period” has the meaning specified in Section 10.01(1).



          “Subsidiary” of any specified person means any corporation at which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the election of directors
of such corporation (irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by such person , or by one or more other
Subsidiaries, or by such person and one or more other Subsidiaries.



          “Successor Company” has the meaning specified in Section 5.01(a).



          “Trading Day” means a day during which:




     (i) the NYSE is open for trading, or if Common Stock is not listed on the NYSE, the
principal U.S. national securities exchange on which Common Stock is listed is open for
trading, and has a scheduled closing time of 4:00 p.m., New York City time (or the then
standard closing time for regular trading on the relevant exchange or market) or if Common
Stock is not so listed, any Business Day; and




     (ii) there is no Market Disruption Event.



          “Trading Price” per $1,000 principal amount of Notes on any date of determination shall be the
average of the secondary market bid quotations obtained by the Bid Solicitation Agent for
$5,000,000 aggregate principal amount of Notes at approximately 3:30 p.m., New York City time, on
such determination date from two independent nationally recognized securities dealers selected by
the Company; provided that, if only one such bid can reasonably be obtained, then that one bid will
be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000
aggregate principal amount of Notes from an independent nationally recognized securities dealer,
then the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 95% of
the product of the Closing Sale Price of Common Stock for such day and the applicable Conversion
Rate.



          “Trading Price Measurement Period” has the meaning specified in Section 10.01(6).




- 10 -











 





          “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbbb), as amended, as in effect on the date of this Indenture.




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




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




          “Unrestricted Global Note” has the meaning specified in Section 2.15.




          “Valuation Period” has the meaning specified in Section 10.04(c).




          “VWAP” of Common Stock on any Settlement Period Trading Day means such per share
volume-weighted average price as is displayed on Bloomberg (or any successor service) page
CVA<EQUITY>AQR in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on
such Settlement Period Trading Day; or, if such price is not available, the VWAP means the market
value per share of Common Stock on such Settlement Period Trading Day as determined by a nationally
recognized independent investment banking firm retained for this purpose by the Company.




          “Wholly Owned Subsidiary” means a Subsidiary of the Company, all the Capital Stock of which
(other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.




          SECTION 1.02.   Incorporation by Reference of Trust Indenture Act. This Indenture is
subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference
in and made a part of this Indenture. The following Trust Indenture Act terms have the following
meanings:




          “Commission” means the SEC.




          “indenture securities” means the Notes.




          “indenture security holder” means a Noteholder.




          “indenture to be qualified” means this Indenture.




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




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




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




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          SECTION 1.03.   Rules of Construction. Unless the context otherwise requires:




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




          (2) “or” is not exclusive;




          (3) “including” means including without limitation; and




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




ARTICLE 2




The Notes




          SECTION 2.01.   Designation, Amount and Issuance of Notes. The Notes shall be
designated as “3.25% Cash Convertible Senior Notes due 2014.” The Notes initially will be issued
in an aggregate principal amount not to exceed (i) $400,000,000 (up to $460,000,000 if the Initial
Purchasers exercise their over-allotment option in full in accordance with the Purchase Agreement)
plus (ii) such additional aggregate principal amount of Notes as may be issued from time to time as
Additional Notes in accordance with Section 2.16 (except pursuant to Sections 2.04, 2.11 and 3.03
hereof). Upon the execution of this Indenture, or from time to time thereafter, Notes may be
executed by the Company and delivered to the Trustee for authentication.




          SECTION 2.02.   Form of the Notes. The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A
hereto. The terms and provisions contained in the form of Notes 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 Notes 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 by the custodian for the Global Notes or the
Depositary 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 Notes may be listed, or to conform to usage, or to indicate any
special limitations or restrictions to which any particular Notes are subject.




          So long as the Notes are eligible for book-entry settlement with the Depositary, or unless
otherwise required by law, or otherwise contemplated by Section 2.08(b), all of the Notes will be
represented by one or more Notes in global form registered in the name of the Depositary or the
nominee of the Depositary (the “Global Notes”). The transfer and exchange of beneficial interests
in any such Global Notes shall be effected through the Depositary in accordance with this Indenture
and the applicable procedures of the Depositary. Except as provided in Section




 - 12 -









 







2.08(b), beneficial owners of a Global Note 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 Note.




          Any Global Notes shall represent such of the outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of outstanding Notes from time to
time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may
from time to time be increased or reduced to reflect repurchases, cash conversions, transfers or
exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or
the custodian for the Global Note, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with this Indenture. Payment of
principal of, interest on and premium, if any, on any Global Notes shall be made to the Depositary
in immediately available funds.




          SECTION 2.03.   Date and Denomination of Notes; Payment at Maturity; Payment of
Interest.




          (a) Date and Denomination. The Notes shall be issuable in registered form without
coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note
shall be dated the date of its authentication and shall bear interest from the date specified on
the face of the form of Notes attached as Exhibit A hereto.




          (b) Payment at Maturity. The Notes shall mature on June 1, 2014, unless earlier cash
converted or repurchased in accordance with the provisions hereof. On the Maturity Date, each
Holder shall be entitled to receive on such date $1,000 in cash for each $1,000 principal amount of
Notes, together with accrued and unpaid interest to, but not including, the Maturity Date. With
respect to Global Notes, principal and interest will be paid to the Depositary in immediately
available funds. With respect to any certificated Notes, principal and interest will be payable at
the Company’s office or agency, which initially will be the office or agency of the Trustee. If
the Maturity Date is not a Business Day, payment shall be made on the next succeeding Business Day,
and no additional interest shall be accrue thereon.




          (c) Payment of Interest. Interest on the Notes will accrue at the rate of 3.25% per
annum, from May 22, 2009 until the principal thereof is paid or made available for payment.
Interest shall be payable on June 1 and December 1 of each year (each, an “Interest Payment Date”),
commencing December 1, 2009, to the Person in whose name any Note is registered on the Register at
5:00 p.m., New York City time, on any Regular Record Date with respect to the applicable Interest
Payment Date, except that the interest payable on the Maturity Date will be paid to the Person to
whom the principal amount is paid. Notwithstanding the foregoing, any Notes or portion thereof
surrendered for cash conversion after 5:00 p.m., New York City time on the Regular Record Date for
an Interest Payment Date but prior to the applicable Interest Payment Date shall be accompanied by
payment from the Holder, whether or not such Holder was the Holder of record on the relevant date,
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 need be made:




 - 13 -









 









     (i) with respect to conversions after 5:00 p.m., New York City time, on May 15, 2014;




     (ii) with respect to conversions during such period commencing on the date the Company
has given notice of a Fundamental Change pursuant to Section 10.01(5) to, and including, the
Business Day immediately preceding the corresponding Fundamental Change Repurchase Date; or




     (iii) with respect to any overdue interest, if overdue interest exists at the time of
conversion with respect to such Notes.



              Interest on the Notes for a Full Interest Period will be computed on the basis of a 360 day
year comprised of twelve 30 day months. Interest on the Notes for a period other than a Full
Interest Period will be calculated on the basis of the actual number of days elapsed during the
period and a 365 day year.




              The Company shall pay interest on:





     (i) any Global Notes by wire transfer of immediately available funds to the account of
the Depositary or its nominee;




     (ii) any Notes in certificated form having a principal amount of less than $5,000,000,
by check mailed to the address of the Person entitled thereto as it appears in the Register,
provided, however, that, at maturity, interest will be payable as described
in Section 2.03(b); and




     (iii) any Notes in certificated form having a principal amount of $5,000,000 or more,
by wire transfer in immediately available funds at the election of the holder of such Notes
duly delivered to the trustee at least five Business Days prior to the relevant Interest
Payment Date, provided, however, that, at maturity, interest will be payable
as described in Section 2.03(b).



              If an Interest Payment Date is not a Business Day, payment shall instead be made on the next
succeeding Business Day, and no additional interest shall accrue thereon.




              SECTION 2.04.   Execution and Authentication. One Officer shall sign the Notes for
the Company by manual or facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.




              A Note shall not be valid until an authorized signatory of the Trustee manually authenticates
the Note. Upon the written order of the Company signed by an Officer, the Trustee shall
authenticate a Note executed by the Company. The signature of the Trustee on the Note shall be
conclusive evidence that the Note has been duly and validly authenticated under this Indenture. A
Note shall be dated the date of its authentication.




 - 14 -









 








          The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a
Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.




          SECTION 2.05.   Registrar and Paying Agent. The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Notes may be presented for payment (the “Paying Agent”). The
Corporate Trust Office shall be considered as one such office or agency of the Company for each of
the aforesaid purposes. The Registrar shall keep a register of the Notes (the “Register”) and of
their transfer and exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term “Paying Agent” includes any additional paying agent, and the
term “Registrar” includes any co-registrars. The Company initially appoints the Trustee as
(i) Registrar and Paying Agent in connection with the Notes, (ii) the custodian with respect to the
Global Notes, (iii) Conversion Agent and (iv) Bid Solicitation Agent.




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




          The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or
Paying Agent and to the Trustee; provided, however, that no such removal shall
become effective until (1) acceptance of an appointment by a successor as evidenced by an
appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as
the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with
clause (1) above. The Registrar or Paying Agent may resign at any time upon written notice;
provided, however, that the Trustee may resign as Paying Agent or Registrar only if
the Trustee also resigns as Trustee in accordance with Section 7.08.




          SECTION 2.06.   Paying Agent to Hold Money in Trust. Prior to each due date of the
principal and interest on any Note, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary of the Company is acting as Paying Agent, segregate and hold in trust for
the benefit of the Persons entitled thereto) a sum sufficient to pay such principal and interest
when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of Noteholders or the
Trustee all money held by the Paying Agent for the payment of principal of or interest on the Notes
and shall notify the Trustee of any default by the Company in making any




 - 15 -









 




such payment. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company
at any time may require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent
shall have no further liability for the money delivered to the Trustee.




          SECTION 2.07.   Noteholder Lists. The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of
Noteholders and shall otherwise comply with Section 312(a) of the Trust Indenture Act. If the
Trustee is not the Registrar, or to the extent otherwise required under the Trust Indenture Act,
the Company shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at least
five Business Days before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Noteholders and the Company shall otherwise comply with Section
312(a) of the Trust Indenture Act.




          SECTION 2.08.   Exchange and Registration of Transfer of Notes; Restrictions on
Transfer.




          (a) The Company shall cause to be kept at the Corporate Trust Office the Register in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Register shall be in written form or in any
form capable of being converted into written form within a reasonably prompt period of time.




          Upon surrender for registration of transfer of any Notes to the Registrar or any co-registrar,
and satisfaction of the requirements for such transfer set forth in this Section 2.08, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.




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




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




          All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
cash conversion shall (if so required by the Company or the Registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form



 - 16 -









 






satisfactory to the Company, and the Notes shall be duly executed by the holder thereof or his
attorney duly authorized in writing.




          No service charge shall be made to any holder for any registration of, transfer or exchange of
Notes, but the Company or the Trustee may require payment by the holder 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 Notes.




          Neither the Company nor the Trustee nor any Registrar shall be required to exchange, issue or
register a transfer of (a) any Note or portions thereof surrendered for cash conversion pursuant to
Article 10 or (b) any Note or portions thereof tendered for repurchase (and not withdrawn) pursuant
to Article 3.




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





     (i) Each Global Note 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 for the Global Notes therefor, and each such Global
Note shall constitute a single Note for all purposes of this Indenture.




     (ii) Notwithstanding any other provision in this Indenture, no Global Note may
be exchanged in whole or in part for Notes registered, and no transfer of a Global
Note in whole or in part may be registered, in the name of any Person other than the
Depositary or a nominee thereof unless (A) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or (y) has ceased to be a clearing agency registered under the Exchange Act,
and a successor Depositary has not been appointed by the Company within 90 calendar
days, or (B) the Company, at its option, notifies the Trustee in writing that it no
longer wishes to have all the Notes represented by Global Notes. Any Global Note
exchanged pursuant to this Section 2.08(b)(ii) shall be so exchanged in whole and
not in part.




     (iii) In addition, certificated Notes will be issued in exchange for beneficial
interests in a Global Note upon request by or on behalf of the Depositary in
accordance with customary procedures following the request of a beneficial owner
seeking to enforce its rights under the Notes or this Indenture, including its
rights following the occurrence of an Event of Default.




     (iv) Notes issued in exchange for a Global Note or any portion thereof pursuant
to clause (ii) or (iii) above shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal to that of
such Global Notes 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 Notes to be exchanged shall
be surrendered by the Depositary to the Trustee, as Registrar, provided that
pending completion of the exchange of a



 - 17 -









 






Global Note, the Trustee acting as custodian for the Global Notes for the
Depositary or its nominee with respect to such Global Notes, shall reduce the
principal amount thereof, 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 Notes issuable on such exchange to or upon the written
order of the Depositary or an authorized representative thereof.




     (v) In the event of the occurrence of any of the events specified in clause
(ii) above or upon any request described in clause (iii) above, the Company will
promptly make available to the Trustee a sufficient supply of certificated Notes in
definitive, fully registered form, without interest coupons.




     (vi) Neither any members of, or participants in, the Depositary (the “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 Notes 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 Notes 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 holder of any Notes.




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



              (c) Every Note (and all securities issued in exchange therefor or in substitution thereof)
that bears or is required under this Section 2.08(c) to bear the Restricted Note Legend set forth
in Exhibit A (the “Restricted Securities”) shall be subject to the restrictions on transfer set
forth in this Section 2.08(c) (including those set forth in the Restricted Note Legend in Exhibit
A) unless such restrictions on transfer shall be waived by written consent of the Company following
receipt of legal advice supporting the permissibility of the waiver of such



 - 18 -









 






transfer restrictions, and the holder of each such Restricted Security, by such Holder’s
acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this
Section 2.08(c), the term “transfer” means any sale, pledge, loan, transfer or other disposition
whatsoever of any Restricted Security or any interest therein.




          (d) Until the date (the “Resale Restriction Termination Date”) that is (1) the date that is
one year after the last date of the original issuance of the Notes and (2) such later date, if any,
as may be required by applicable laws, any certificate evidencing a Restricted Security shall bear
a legend in substantially the form set forth in Exhibit A, as the Restricted Note Legend, unless
such Restricted Security has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the time of such
transfer) or sold pursuant to Rule 144 under the Securities Act or any similar provision then in
force, or unless otherwise agreed by the Company in writing as set forth above, with written notice
thereof to the Trustee.




          (e) In connection with any transfer of the Notes prior to the Resale Restriction Termination
Date, the holder must complete and deliver the form of assignment set forth on the certificate
representing the Note, with the appropriate box checked, to the Trustee (or any successor Trustee,
as applicable).




          Any Notes that are Restricted Securities and as to which such restrictions on transfer shall
have expired in accordance with their terms or as to conditions for removal of the Restricted Note
Legend set forth therein have been satisfied may, upon surrender of such Notes for exchange to the
Registrar in accordance with the provisions of this Section 2.08, be exchanged for a new Note or
Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend
required by Section 2.08(c). If such Restricted Security surrendered for exchange is represented
by a Global Note bearing the Restricted Note Legend, the principal amount of the legended Global
Notes shall be reduced by the appropriate principal amount and the principal amount of a Global
Note without a Restricted Note Legend shall be increased by an equal principal amount. If a Global
Note without the Restricted Note Legend is not then outstanding, the Company shall execute and the
Trustee shall authenticate and deliver an unlegended Global Note to the Depositary. The Company
shall notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date
and, if applicable, promptly after a registration statement with respect to the Notes has been
declared effective under the Securities Act.




          (f) Any Notes purchased by the Company may, at its option, be surrendered to the Trustee for
cancellation, but may not be reissued or resold by the Company. Any Notes surrendered by the
Company to the Trustee for cancellation may not be reissued or resold and will be promptly
cancelled.




          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 Notes 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
Notes. All notices and communications to be given to the Holders of Notes and




 - 19 -









 




all payments to be made to Holders of Notes under the Notes shall be given or made only to or upon
the order of the registered Holders of Notes (which shall be the Depositary or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global Notes shall be exercised
only through the Depositary subject to the customary procedures of the Depositary. The Trustee may
rely and shall be fully protected in conclusively relying upon information furnished by the
Depositary with respect to its Agent Members.




          (g) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Notes (including any transfers between or among
Agent Members) 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 2.09.   Replacement Notes. If a mutilated Note is surrendered to the
Registrar or if the Noteholder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if
the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Noteholder
(i) satisfies the Company or the Trustee within a reasonable time after he has notice of such loss,
destruction or wrongful taking and the Registrar does not register a transfer prior to receiving
such notification, (ii) makes such request to the Company or the Trustee prior to the Note being
acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
“protected purchaser”) and (iii) satisfies any other reasonable requirements of the Trustee. Such
Noteholder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the
Company, the Trustee, the Paying Agent and the Registrar from any loss, expense, claim or liability
that any of them may suffer if a Note is replaced and subsequently presented or claimed for
payment. The Company and the Trustee may charge the Noteholder for their expenses in replacing a
Note. In the case of any Note which has matured or is about to mature or has been properly
tendered for repurchase on a Fundamental Change Repurchase Date (and not withdrawn), or is to be
converted into cash, shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Note, pay or authorize the payment of cash (without surrender
thereof except in the case of a mutilated Notes) if the applicant for such cash payment 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 Notes and of the ownership thereof.




          Every replacement Note is an additional obligation of the Company.




          The provisions of this Section 2.09 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, lost,
destroyed or wrongfully taken Notes.




 - 20 -









 








          SECTION 2.10.   Outstanding Notes. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those paid pursuant to Section 2.09
hereof, those delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.




          If a Note is replaced pursuant to Section 2.09, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Note is held by a protected
purchaser.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Fundamental Change Repurchase Date or Maturity Date money sufficient to pay all principal and
interest payable on that date with respect to the Notes (or portions thereof) to be repurchased or
maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Noteholders on that date pursuant to the terms of this Indenture, then on and after that date such
Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.




          SECTION 2.11.   Temporary Notes. Pending the preparation of Notes 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 Notes (printed
or lithographed). Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in certificated form, but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as may be determined by the Company.
Every such temporary Notes 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 Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in certificated form and
thereupon any or all temporary Notes 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 Notes an
equal aggregate principal amount of Notes 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
Notes shall in all respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Notes in certificated form authenticated and delivered hereunder.




          SECTION 2.12.   Cancellation. The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or
cancellation and dispose of such canceled Notes in accordance with its customary procedures or
deliver canceled Notes to the Company upon written request of the Company. The Company may not
issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Notes in place of canceled Notes other than pursuant to the terms of
this Indenture.




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          SECTION 2.13.   Defaulted Interest. Any interest on any Note which is payable, but is
not paid when the same becomes due and payable and such nonpayment continues for a period of thirty
calendar days, shall forthwith cease to be payable to the Holder on the Regular Record Date, and
such defaulted interest and interest (to the extent lawful) on such defaulted interest at the
annual rate borne by the Notes plus 1% (such defaulted interest and interest thereon herein
collectively called “Defaulted Interest”) shall be paid by the Company at its election, in each
case, as provided in clause (a) or (b) below:




          (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective predecessor Notes) are registered at 5:00 p.m., New York City
time, on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note, upon which the Trustee may
conclusively rely, and the date (not less than thirty calendar days after such notice) of the
proposed payment (the “Special Interest Payment Date”), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a record date (the “Special Record Date”) for the payment of such
Defaulted Interest which shall be not more than fifteen calendar days and not less than ten
calendar days prior to the Special Interest Payment Date and not less than ten calendar days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date, and in the name and at the expense of the Company,
shall promptly cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor to be given to each Noteholder, not less
than ten calendar days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having
been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the
Persons in whose names the Notes (or their respective predecessor Notes) are registered at 5:00
p.m., New York City time, on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).




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




          (c) Subject to the foregoing provisions of this Section 2.13, each Note delivered under this
Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Note.




          SECTION 2.14.   CUSIP and ISIN Numbers. The Company in issuing the Notes may use
“CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and
“ISIN” numbers in notices of repurchase as a convenience to Noteholders;




 - 22 -









 




provided, however, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of a repurchase and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such repurchase shall not be affected by any defect in or omission of
such numbers. The Company shall promptly notify the Trustee in writing of any changes to the CUSIP
and ISIN numbers.




          SECTION 2.15.   Automatic Exchange from Restricted Global Note to Unrestricted Global
Note. Beneficial interests in a Global Note that is subject to restrictions set out in Section
2.08(c) (the “Restricted Global Note”) shall be automatically exchanged into beneficial interests
in an unrestricted Global Note that is no longer subject to the restrictions set out in Section
2.08(c) (including removal of the legend set forth in Exhibit A) (the “Unrestricted Global Note”)
without any action required by or on behalf of the Holder (the “Automatic Exchange”). In order to
effect such exchange, the Company shall at least 15 days but not more than 30 days prior to the
Resale Restriction Termination Date, deliver a notice of Automatic Exchange (an “Automatic Exchange
Notice”) to each Holder at such Holder’s address appearing in the Note Register with a copy to the
Trustee. The Automatic Exchange Notice shall identify the Notes subject to the Automatic Exchange
and shall state: (1) the date of the Automatic Exchange; (2) the section of this Indenture pursuant
to which the Automatic Exchange shall occur; (3) the “CUSIP” number of the Restricted Global Note
from which such Holders’ beneficial interests shall be transferred and (4) the “CUSIP” number of
the Unrestricted Global Note into which such Holders’ beneficial interests shall be transferred. At
the Company’s request on no less than five days’ prior notice, the Trustee shall deliver in the
Company’s name and at its expense, the Automatic Exchange Notice to each Holder at such Holder’s
address appearing in the Note Register; provided, however, that the Company shall have delivered to
the Trustee a written order of the Company and an Officers’ Certificate requesting that the
Trustee give the Automatic Exchange Notice (in the name and at the expense of the Company) and
setting forth the information to be stated in the Automatic Exchange Notice as provided in the
preceding sentence. As a condition to any such exchange pursuant to this Section 2.15, the Trustee
shall be entitled to receive from the Company, and rely conclusively without any liability upon, an
Officers’ Certificate and an Opinion of Counsel to the Company, in form and in substance reasonably
satisfactory to the Trustee to the effect that such transfer of beneficial interests to the
Unrestricted Global Note shall be effected in compliance with the Securities Act. Upon such
exchange of beneficial interests pursuant to this Section 2.15, the Registrar shall reflect on its
books and records the date of such transfer and a decrease and increase, respectively, in the
principal amount of the applicable Restricted Global Note(s) and the Unrestricted Global Note,
respectively, equal to the principal amount of beneficial interests transferred. If an Unrestricted
Global Note is not then outstanding at the time of the Automatic Exchange, the Company shall
execute and the Trustee shall authenticate and deliver an Unrestricted Global Note to the
Depositary. Following any such transfer pursuant to this Section 2.15, the relevant Restricted
Global Note shall be cancelled.




          SECTION 2.16.   Additional Notes. The Company may, from time to time, subject to
compliance with any other applicable provisions of this Indenture, without notice to or the consent
of the Noteholders, create and issue pursuant to this Indenture additional Notes (“Additional
Notes”) having terms and conditions identical to those of the other outstanding Notes, except that
Additional Notes may:




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          (a) have a different Issue Date from the Issue Date for other outstanding Notes;




          (b) have a different issue price than other outstanding Notes; and




          (c) have terms specified in the Additional Notes Board Resolutions for such Additional Notes
making appropriate adjustments to this Article 2 and Exhibit A (and related definitions) applicable
to such Additional Notes in order to conform to and ensure compliance with the Securities Act (or
other applicable securities laws), which are not adverse in any material respect to the Holder of
any outstanding Notes (other than such Additional Notes);




provided, no Additional Notes may be issued unless such Additional Notes are fungible with the
Notes issued pursuant to the Purchase Agreement for U.S. federal income tax and securities laws
purposes, as determined pursuant to an Opinion of Counsel; and provided further, that the
Additional Notes have the same CUSIP number as other outstanding Notes. No Additional Notes may be
issued if on the Issue Date therefor any Event of Default has occurred and is continuing.




          The Notes originally issued pursuant to the Purchase Agreement and any Additional Notes shall
be treated as a single class for all purposes under this Indenture, including waivers, amendments,
offers to purchase and United States federal tax purposes.




          With respect to any issuance of Additional Notes, the Company shall deliver to the Trustee a
resolution of the Board of Directors and an Officers’ Certificate in respect of such Additional
Notes, which shall together provide the following information:




          (i) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture;




          (ii) the Issue Date, issue price, amount of interest accrued and payable on the first Interest
Payment Date, the first Interest Payment Date, the CUSIP number and corresponding ISIN of such
Additional Notes; and




          (iii) such matters as shall be applicable to such Additional Notes as described in paragraph
(c) of the second preceding paragraph.




ARTICLE 3




Repurchase of Notes




          SECTION 3.01.   Repurchase at Option of Holders Upon a Fundamental Change




          (a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then
each Noteholder shall have the right, at such Holder’s option, to require the Company to repurchase
all of such Holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount,
for which such Holder has properly delivered and not withdrawn a Fundamental Change Repurchase
Notice on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not
less than twenty Business Days and more than




 - 24 -









 




thirty-five Business Days after the date of the Fundamental Change Company Notice related to
such Fundamental Change at a cash repurchase price (the “Fundamental Change Repurchase Price”)
equal to 100% of the principal amount of the Notes being repurchased, plus accrued and unpaid
interest to, but excluding, the Fundamental Change Repurchase Date, subject to the satisfaction by
the holder of the requirements set forth in Section 3.01(c); provided that if such
Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, then the interest payable on such Interest Payment Date shall
be paid on such Fundamental Change Repurchase Date to the holders of record of the Notes on the
applicable Regular Record Date instead of the holders surrendering the Notes for repurchase on such
date.




          (b) On or before the fifth calendar day after the occurrence of a Fundamental Change, the
Company shall mail or cause to be mailed to all Holders of record of the Notes on the date of the
Fundamental Change at their addresses shown in the Register (and to beneficial owners of the Notes
to the extent required by applicable law) a Fundamental Change Company Notice as set forth in
Section 3.02 with respect to such Fundamental Change. The Company shall also deliver a copy of the
Fundamental Change Company Notice to the Trustee and the Paying Agent at such time as it is mailed
to Holders of Notes. Simultaneously with the mailing of such Fundamental Change Company Notice,
the Company shall disseminate a press release containing the relevant information and make such
information available on the Company’s website or through another public medium as the Company may
use at such time.




          No failure of the Company to give the foregoing notices and press release and no defect
therein shall limit the repurchase rights of Holders of Notes or affect the validity of the
proceedings for the repurchase of the Notes pursuant to this Section 3.01.




          (c) For Notes to be repurchased at the option of the Holder, the Holder must deliver to the
Paying Agent, at any time prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Repurchase Date, a written notice of the Holder’s exercise of its
repurchase right (the “Fundamental Change Repurchase Notice”). The Fundamental Change Repurchase
Notice must state the following:





     (A) the certificate number of the Notes which the holder will deliver to be
repurchased (if the Notes are certificated) or appropriate Depositary information in
accordance with appropriate Depositary procedures (if the Notes are represented by a
Global Note);




     (B) the portion of the principal amount of the Notes which the holder will
deliver to be repurchased, which portion must be in principal amounts of $1,000 or
an integral multiple of $1,000; and




     (C) that such Notes shall be repurchased by the Company pursuant to the terms
and conditions specified in the Notes and in this Indenture.



         The Fundamental Change Repurchase Notice must be accompanied by such Notes duly endorsed for
transfer (if the Notes are certificated) or book-entry transfer of such Notes (if such Notes are
represented by a Global Note). The delivery of such Notes to the Paying Agent





 - 25 -












 




with, or at any time after delivery of, the Fundamental Change Repurchase Notice (together
with all necessary endorsements) at the office of the Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided,
however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 3.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to
the description thereof in the Fundamental Change Repurchase Notice. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Notes for repurchase shall
be determined by the Company, whose determination shall be final and binding absent manifest error.




          (d) The Company shall repurchase from the Holder thereof, pursuant to this Section 3.01, a
portion of a Note, 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 repurchase of all of a Note also apply to the
repurchase of such portion of such Note.




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




          Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Notes.




          SECTION 3.02. Fundamental Change Company Notice. In connection with any repurchase
of Notes due to a Fundamental Change, the Company shall, on or before the fifth calendar day after
the occurrence of such Fundamental Change, give notice to Holders (with a copy to the Trustee and
the Paying Agent) setting forth information specified in this Section 3.02 (the “Fundamental Change
Company Notice”).




          Each Fundamental Change Company Notice shall:





     (1) state the Fundamental Change Repurchase Price and the Fundamental Change Repurchase
Date to which the Fundamental Change Company Notice relates;




     (2) state the circumstances constituting the Fundamental Change;




     (3) state that the Fundamental Change Repurchase Price will be paid in cash;




     (4) state that Holders must exercise their right to elect repurchase prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date;




     (5) include a form of Fundamental Change Repurchase Notice;




     (6) state the name and address of the Paying Agent and the Conversion Agent;




     (7) state that Notes must be surrendered to the Paying Agent to collect the Fundamental
Change Repurchase Price;



- 26 -









 






     (8) state that a Holder may withdraw its Fundamental Change Repurchase Notice at any
time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Repurchase Date by delivering a valid written notice of withdrawal in
accordance with Section 3.03;




     (9) state the Notes are then cash convertible, the then applicable Conversion Rate, and
the expected changes in the Conversion Rate resulting from such Fundamental Change
transaction;




     (10) state that Notes as to which a Fundamental Change Repurchase Notice has been given
may be cash converted only if the Fundamental Change Repurchase Notice is withdrawn in
accordance with the terms of this Indenture;




     (11) state the amount of interest accrued and unpaid per $1,000 principal amount of
Notes to, but excluding, the Fundamental Change Repurchase Date; and




     (12) state the CUSIP number of the Notes.


A Fundamental Change Company Notice may be given by the Company or, at the Company’s request, the
Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the
Company’s expense; provided, that the text of the Fundamental Change Company Notice shall
be prepared by the Company.




          SECTION 3.03. Effect of Fundamental Change Repurchase Notice; Withdrawal. Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice specified in Section 3.01,
the holder of the Notes in respect of which such Fundamental Change Repurchase Notice was given
shall (unless such Fundamental Change Repurchase Notice is validly withdrawn in accordance with the
following paragraph) thereafter be entitled to receive solely the Fundamental Change Repurchase
Price with respect to such Notes. Such Fundamental Change Repurchase Price shall be paid to such
Holder, subject to receipt of funds and/or the Notes by the Paying Agent, promptly following the
later of (x) the Fundamental Change Repurchase Date with respect to such Notes (provided the Holder
has satisfied the conditions in Section 3.01) and (y) the time of book-entry transfer or delivery
of such Notes to the Paying Agent by the Holder thereof in the manner required by Section 3.01.
The Notes in respect of which a Fundamental Change Repurchase Notice has been given by the Holder
thereof may not be cash converted pursuant to Article 10 hereof on or after the date of the
delivery of such Fundamental Change Repurchase Notice unless such Fundamental Change Repurchase
Notice has first been validly withdrawn.




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





     (a) the certificate number of the Notes in respect of which such notice of withdrawal
is being submitted (if the Notes are certificated), or the appropriate Depositary
information in accordance with appropriate Depositary procedures (if the



- 27 -









 







Notes in respect of which such notice of withdrawal is being submitted is represented
by a Global Note);




     (b) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted; and




     (c) the principal amount, if any, of such Notes which remains subject to the original
Fundamental Change Repurchase Notice and which has been or will be delivered for repurchase
by the Company.



          If a Fundamental Change Repurchase Notice is properly withdrawn, the Company shall not be
obligated to repurchase the Notes listed in such Fundamental Change Repurchase Notice.




          SECTION 3.04. Deposit of Fundamental Change Repurchase Price. On or prior to the
Fundamental Change Repurchase Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall set aside, segregate and hold in trust as provided
in Section 2.06) an amount of cash in immediately available funds sufficient to repurchase on the
Fundamental Change Repurchase Date all the Notes (or portions thereof) tendered for repurchase at
the aggregate Fundamental Change Repurchase Price together with accrued and unpaid interest to, but
excluding, the Fundamental Change Repurchase Date; provided that if such payment is made on
the Fundamental Change Repurchase Date, it must be received by the Paying Agent by 11:00 a.m., New
York City time, on such date. If any Notes tendered for repurchase are cash converted in
accordance with Article 10 prior to such Fundamental Change Repurchase Date, any money deposited
with the Paying Agent or so segregated and held in trust for the repurchase of such Notes shall be
paid to the Company or, if then held by the Company, shall be discharged from such trust.




          SECTION 3.05. Payment of Notes Tendered for Repurchase. If on the Fundamental
Change Repurchase Date the Paying Agent holds cash sufficient to pay the Fundamental Change
Repurchase Price of the Notes that Holders have elected to require the Company to repurchase in
accordance with Section 3.01, then, on the Fundamental Change Repurchase Date, such Notes will
cease to be outstanding, interest will cease to accrue on such Notes and all other rights of the
holders of such Notes will terminate, other than the right to receive the Fundamental Change
Repurchase Price and previously accrued and unpaid interest upon delivery or book-entry transfer of
the Notes. This will be the case whether or not book-entry transfer of the Notes has been made or
the Notes has been delivered to the Paying Agent.




          If any Notes that holders have elected to require the Company to repurchase in accordance with
Section 3.01 shall not be so paid on the Fundamental Change Repurchase Date, the Company shall pay
interest (to the extent lawful) on the overdue Fundamental Change Repurchase Price at the annual
rate borne by the Notes plus 1%, and the Notes shall remain convertible into cash in accordance
with Article 10 until the Fundamental Change Repurchase Price and interest shall have been paid or
duly provided for.




          SECTION 3.06. Notes Repurchased in Part. Upon presentation of any Notes repurchased
only in part, the Company shall execute, and the Trustee shall authenticate and make



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available for delivery to the Holder thereof at the expense of the Company, a new Note or
Notes of any authorized denomination, in aggregate principal amount equal to the unrepurchased
portion of the Notes presented.




          SECTION 3.07. Covenant to Comply with Securities Laws Upon Repurchase of Notes. The
Company will, to the extent applicable, comply with the provisions of Rule 13e-4 and any other
tender offer rules under the Exchange Act that may be applicable at the time of the offer to
repurchase the Notes, file the related Schedule TO or any other schedule required in connection
with any offer by the Company to repurchase the Notes and comply with all other federal and state
securities laws in connection with any offer by the Company to repurchase the Notes.




ARTICLE 4




Covenants




          SECTION 4.01. Payment of Notes. The Company shall promptly pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture.
Principal and interest shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Noteholders on that date pursuant to the terms of this Indenture.




          The Company shall pay interest (to the extent lawful) on overdue principal at the annual rate
of 1% above the then applicable interest rate from the required payment date.




          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 Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for cash conversion or
repurchase and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. As of the date of this Indenture, such New York City office is located at
the office of the Trustee located at 45 Broadway, 14th Floor, New York, NY 10006
Attention: Corporate Trust Services and, at any other time, at such other address as the Trustee
may designate from time to time by notice to the Company. 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.




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




- 29 -









 








          So long as the Trustee is the Registrar, the Trustee agrees to mail, or cause to be mailed,
the notices set forth in Section 7.08. If co-registrars have been appointed in accordance with
this Section, the Trustee shall mail such notices only to the Company and the Noteholders it can
identify from its records.




          SECTION 4.03. Reports; 144A Information.




          (a) The Company shall deliver to the Trustee, within fifteen calendar days after it would have
been required to file them with the SEC (giving effect to any grace period provided by Rule 12b-25
under the Exchange Act), copies of the Company’s annual reports on Form 10-K and of the
information, documents and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time no
longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company shall continue to provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the SEC had it continued to have been
subject to such reporting requirements. In such event, such reports shall be provided at the times
the Company would have been required to provide reports had the Company continued to have been
subject to such reporting requirements. The Company also shall comply with the other provisions of
Section 314(a) of the Trust Indenture Act. Documents filed by the Company with the SEC via the
EDGAR system will be deemed furnished to the Trustee as of the time such documents are filed via
EDGAR, provided that the Trustee shall have no duty to determine if such filing has occurred.




          (b) The Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or beneficial
holder of Notes which continue to be Restricted Securities and any prospective purchaser of Notes
designated by such holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of the
Notes, until such time as such securities are not longer “restricted securities” within the meaning
of Rule 144 under the Securities Act.




          Delivery of such reports, information and documents to the Trustee is for information purposes
only and Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates). The Trustee is under no duty to examine such reports,
information or documents to ensure compliance with the provisions of this Indenture or to ascertain
the correctness or otherwise of the information or the statements contained therein. The Trustee
is entitled to assume such compliance and correctness unless a Responsible Officer of the Trustee
is informed otherwise.




          SECTION 4.04. Existence. 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




- 30 -









 







the business of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders of Notes.




          SECTION 4.05. Payment of Taxes and Other Claims. The Company will pay or discharge,
or cause to be paid or discharged, before the same may become delinquent:





     (i) all taxes, assessments and governmental charges levied or imposed upon the Company
or any Significant Subsidiary of the Company or upon the income, profits or property of the
Company or any Significant Subsidiary of the Company;




     (ii) all claims for labor, materials and supplies which, if unpaid, might by law become
a lien or charge upon the property of the Company or any Significant Subsidiary of the
Company; and




     (iii) all stamp taxes and other duties, if any, which may be imposed by the United
States or any political subdivision thereof or therein in connection with the issuance,
transfer, exchange, cash conversion or repurchase of any Notes or with respect to this
Indenture;


provided that, in the case of clauses (i) and (ii), the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a material adverse impact on the Company, or
(B) if the amount, applicability or validity is being contested in good faith by appropriate
proceedings.




          SECTION 4.06. Compliance Certificate. The Company shall deliver to the Trustee
within one-hundred twenty calendar days after the end of each fiscal year of the Company a
certificate of the principal executive officer, principal financial officer or principal accounting
officer of the Company, stating whether or not, to the knowledge of such officer, any Default or
Event of Default occurred during such period and if so, describing each Default or Event of
Default, its status and the action the Company is taking or proposes to take with respect thereto.
The Company also shall comply with Section 314(a)(4) of the Trust Indenture Act.




          SECTION 4.07. Further Instruments and Acts. The Company shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary or proper to carry
out more effectively the purpose of this Indenture.




          SECTION 4.08. Additional Interest Notification. If Additional Interest or Reporting
Additional Interest, as applicable, is payable by the Company, the Company shall deliver to the
Trustee an Officers’ Certificate to that effect stating (i) the amount of such Additional Interest
or Reporting Additional Interest, as applicable, that is payable and (ii) the date on which such
Additional Interest or Reporting Additional Interest, as applicable, is payable. Unless and until
a Responsible Officer of the Trustee receives such a certificate, the Trustee may assume without
inquiry that no Additional Interest or Reporting Additional Interest, as applicable, is payable.




          SECTION 4.09. Statement by Officer as to Default. The Company shall deliver to the
Trustee, promptly and in any event within thirty calendar days after the Company becomes



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aware of the occurrence of any Event of Default or Default, an Officers’ Certificate setting
forth the details of such Event of Default or Default, its status and the action which the Company
proposes to take with respect thereto. Except with respect to receipt of Note payments and any
Default or Event of Default information contained in the Officers’ Certificate delivered pursuant
to this Section 4.09, the Trustee shall have no duty to review, ascertain or confirm the Company’s
compliance with, or breach of any representation, warranty or covenant made in this Indenture.




          SECTION 4.10. Waiver of Stay, Extension or Usury Laws. The Company covenants (to
the extent it may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take benefit or advantage of, any stay, extension or usury law or other
law which would prohibit or forgive the Company from paying all or any portion of the principal of
or interest on the Notes as contemplated herein, wherever enacted, now or at any time; 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.




ARTICLE 5




Successor Company




          SECTION 5.01. When Company May Merge or Transfer Assets. The Company shall not, in
a single transaction or a series of related transactions, consolidate with or merge with or into,
or sell, lease, transfer, convey or otherwise dispose of all or substantially all of its property
and assets to another Person unless:




          (a) either (i) the Company is the surviving corporation or (ii) if the Company is not the
surviving corporation, the resulting, surviving or transferee person (the “Successor Company”) is a
corporation or limited liability company organized and existing under the laws of the United
States, any state thereof or the District of Columbia and the Successor Company assumes, by a
supplemental indenture in a form reasonably satisfactory to the Trustee, all of the Company’s
obligations under the Notes and this Indenture;




          (b) immediately after giving effect to the transaction described above, no Default or Event of
Default has occurred and is continuing;




          (c) if as a result of such transaction, the Notes become cash convertible based upon common
stock or other securities issued by a third party, such third party fully and unconditionally
guarantees all obligations of the Company or such successor under the Notes and this Indenture; and




          (d) the Company has delivered to the Trustee the Officers’ Certificate and Opinion of Counsel
pursuant to Section 5.03, each stating that such consolidation or merger or sale, lease, transfer,
conveyance or other disposition of property and assets complies with this Article 5.





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          (e) For purposes of this Section 5.01, the sale, lease, transfer, conveyance or other
disposition of all or substantially all of the properties and assets of one or more Subsidiaries of
the Company, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the transfer of all or substantially all of the property
and assets of the Company.




          SECTION 5.02. Successor to Be Substituted. The Successor Company will succeed to,
and be substituted for, and may exercise every right and power of, the Company under the Notes and
this Indenture with the same effect as if the Successor Company had been named as the Company in
this Indenture. Upon such substitution, except in the case of a lease, the Company will be
released from the obligations under the Notes.




          SECTION 5.03. Opinion of Counsel to Be Given Trustee. Prior to execution of any
supplemental indenture pursuant to this Article 5, 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 5.




ARTICLE 6




Defaults and Remedies




          SECTION 6.01. Events of Default. An “Event of Default” occurs if:




          (a) the Company defaults in any payment of interest on any Note when the same becomes due and
payable and continuance of such default for a period of 30 calendar days;




          (b) the Company defaults in the payment of the principal of any Note when the same becomes due
and payable at its maturity, upon declaration or otherwise, or defaults in the payment of the
Fundamental Change Repurchase Price in respect of any Notes when due;




          (c) upon exercise of a Holder’s cash conversion right in accordance with Article 10, the
Company fails to deliver the Cash Conversion Settlement Amount on the scheduled settlement date for
such conversion and such failure continues for five Business Days following the scheduled
settlement date for such conversion;




          (d) the Company fails to provide notice of the anticipated effective date or actual effective
date of a Fundamental Change or a notice of distribution pursuant to Sections 3.02, 10.01(3) or
10.01(5), in each case on a timely basis as required in this Indenture and such failure continues
for five calendar days;




          (e) the Company fails to comply with the Company’s obligations under Article 5;




          (f) except as provided in Section 6.13, the Company defaults in the performance or observance
of any other term, covenant or agreement of the Company contained in the Notes or this Indenture
(other than a term, covenant or agreement a default in whose



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performance is elsewhere in this Section specifically dealt with), and continuance of such
default for a period of 60 calendar days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Notes then outstanding a written notice specifying such
default and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder;




          (g) the Company fails to pay when due (whether at stated maturity or otherwise), or a default
that results in the acceleration of maturity, of any indebtedness for borrowed money of the Company
or any Significant Subsidiary by the holders thereof, if the total amount of such indebtedness
unpaid or accelerated exceeds $30.0 million (or its foreign currency equivalent) in the aggregate
unless such indebtedness is discharged, or such acceleration is rescinded, stayed or annulled,
within a period of thirty (30) calendar days after written notice of such failure is given to the
Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Notes then outstanding;




          (h) the rendering of a final judgment or decree for the payment of $30.0 million (or its
foreign currency equivalent) or more rendered against the Company or any Subsidiary, which judgment
or decree is not discharged, waived or stayed within 60 calendar days after (A) the date on which
the right to appeal thereof has expired if no such appeal has commenced or (B) the date on which
all rights to appeal have been extinguished.




          (i) the entry by a court having jurisdiction in the premises of:





          (A) a decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law; or




          (B) a decree or order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Significant Subsidiary
under any applicable Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days;
or



          (j) the commencement by the Company or any Significant Subsidiary of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar laws or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company to the entry of a decree or order for relief in respect of the Company or
any Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any Significant Subsidiary, or
the filing by the Company or any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any



- 34 -









 






applicable Federal or State law, or the consent by the Company or any Significant Subsidiary
to the filing of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or
any Significant Subsidiary or of any substantial part of the property of the Company or any
Significant Subsidiary, or the making by the Company or any Significant Subsidiary of an assignment
for the benefit of creditors, or the admission by the Company or any Significant Subsidiary in
writing of its inability to pay its debts generally as they become due, or the taking of corporate
action by the Company or any Significant Subsidiary in furtherance of any such action.




          The foregoing will constitute 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.




          SECTION 6.02. Acceleration. If an Event of Default specified in Section 6.01(i) or
(j) with respect to the Company or any Significant Subsidiary occurs, the principal of and accrued
and unpaid interest on all the outstanding Notes shall automatically become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holders of
Notes. If an Event of Default (other than an Event of Default specified in Section 6.01(i) or (j)
with respect to the Company or any Significant Subsidiary) occurs and is continuing, the Trustee by
notice to the Company, or the holders of at least 25% in principal amount of the outstanding Notes
by notice to the Company, may declare the principal amount of and accrued but unpaid interest on
the outstanding Notes to be due and payable. Upon such a declaration, such principal and interest
shall become due and payable immediately




          At any time after such a declaration of acceleration with respect to the Notes has been made
or occurred and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the holders of a majority in principal amount of
the outstanding Notes, by written notice to the Company and the Trustee may:





     (a) waive by their consent (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes), an existing
Default or Event of Default and its consequences except (i) a Default or Event of Default in
the payment of the principal of or interest on a Note (including payments pursuant to the
required repurchase provisions on such Note, as set forth in Article 3) when due, (ii) a
Default or Event of Default in the satisfaction of the Company’s Cash Conversion Obligations
with respect to a Note or (iii) a Default or Event of Default in respect of a provision that
under Section 9.02 cannot be amended without the consent of each Holder affected; and




     (b) rescind and annul such declaration and its consequences if:




     (1) the Company has paid or deposited with the Trustee a sum sufficient to pay:



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     (A) all overdue interest on all Notes;




     (B) the principal amount of any Notes which have become due otherwise
than by such declaration of acceleration;




     (C) interest (to the extent lawful) upon overdue interest or principal
(or Fundamental Change Repurchase Price, if applicable) to the date of such
payment or deposit at the rate prescribed therefor in this Indenture; and




     (D) all sums paid or advanced by the Trustee under this Indenture and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;




     (2) rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and




     (3) all Events of Default with respect to Notes, other than the non-payment of
the principal amount of the Notes and any accrued and unpaid interest that have
become due solely by such declaration of acceleration, a default with respect to the
Company’s conversion obligations, a default arising from the Company’s failure to
repurchase any Notes when required, or any default that cannot be amended without
the consent of each affected holder, have been cured or waived.


No such waiver or rescission and annulment shall affect any subsequent Default or Event of Default
or impair any right consequent thereon.




          SECTION 6.03. Additional Interest.




          (a) Subject to Section 6.03(d), if, at any time during the six-month period beginning on, and
including, the date which is six months after the last date of the original issuance of the Notes,
and ending on, and including, the 365th day after the last date of the original issuance of the
Notes, the Company fails to timely file any document or report that the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving
effect to all applicable grace periods pursuant to Rule 12b-25 thereunder and other than current
reports on Form 8-K), or the Notes are not otherwise freely tradable by Holders other than the
Company’s Affiliates (as a result of restrictions pursuant to U.S. securities law or the terms of
this Indenture or the Notes), the Company shall (i) pay Additional Interest on the Notes which
shall accrue on the Notes at a rate of 0.25% per annum of the principal amount of Notes outstanding
for each day during such period for which the Company’s failure to file, or the failure of the
Notes to be freely tradable by Holders other than the Company’s Affiliates, as described above, has
occurred and is continuing, which rate shall be increased by an additional 0.25% per annum
following the 90th day on which such Additional Interest has accrued, provided that the rate at
which such Additional Interest under this Section 6.03(a) accrues may in no event exceed 0.50% per
annum and provided further that the Company shall have 14 calendar days, in the aggregate, to cure
any such late filings or failures of the Notes to be freely tradable before any such Additional
Interest shall accrue and (ii) for so long as the



- 36 -









 






Restricted Note Legend has not been removed in accordance with Section 2.08(d) or 2.15, notify
the Trustee of such late filing promptly, but no later than 3 Business Days after such failure to
timely file.




          (b) Subject to Section 6.03(d), if, and for so long as the Notes are not freely tradable by
Holders other than the Company’s Affiliates as of the 365th day after the last date of the original
issuance of the Notes, the Company shall pay Additional Interest on the Notes which shall accrue on
the Notes at a rate of 0.25% per annum of the principal amount of Notes outstanding for each day
after the 366th day after the last date of the original issuance of the Notes until the Notes are
freely tradable by Holders other than the Company’s Affiliates, which rate shall be increased by an
additional 0.25% per annum following the 90th day on which such Additional Interest has accrued,
provided that the rate at which such Additional Interest under this Section 6.03(b) accrues may in
no event exceed 0.50% per annum.




          (c) Additional Interest payable in accordance with Sections 6.03(a) and/or 6.03(b) shall be
payable in arrears on each Interest Payment Date for the Notes following accrual in the same manner
as regular interest on the Notes.




          (d) Notwithstanding the foregoing, if the Notes are not freely tradable by Holders other than
the Company’s Affiliates (as a result of restrictions pursuant to U.S. securities law or the terms
of this Indenture or the Notes), the Company shall have the right to provide an effective shelf
registration statement for the resale by the Holders of the Notes. Additional Interest shall not
accrue for each day on which such registration statement remains effective and usable by Holders
for the resale of the Notes. Any such registration shall be effected on terms customary for
convertible securities generally offered in reliance upon Rule 144A under the Securities Act.




          SECTION 6.04. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of or interest on the
Notes or to enforce the performance of any provision of the Notes or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.




          SECTION 6.05. Waiver of Past Defaults. Subject to Section 6.02, the Holders of not
less than a majority in principal amount of the Notes may on behalf of the Holders of all the Notes
and by written notice to the Trustee waive any past Default or Event of Default under the Indenture
and its consequences, except:





     (i) a Default in the payment of the principal of or interest on a Note when due;



- 37 -









 






     (ii) a Default arising from the failure of the Company to convert any Notes into cash
as required by this Indenture in connection with a Holder exercising its cash conversion
rights in accordance with this Indenture;




     (iii) a Default arising from the failure to pay the Fundamental Change Repurchase Price
on the Fundamental Change Repurchase Date in connection with a Holder exercising its
repurchase rights upon a Fundamental Change; or




     (iv) a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Noteholder affected.


When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.




          SECTION 6.06. Control by Majority. The Holders of a majority in principal amount of
the Notes may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability or expense for which the Trustee has
not received indemnity satisfactory to it; provided, however, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Prior to taking any action hereunder, the Trustee shall be entitled to indemnity or security
reasonably satisfactory to it in its sole discretion against all losses, liabilities, and expenses
caused by taking or not taking such action.




          SECTION 6.07. Limitation on Suits. Except in the case of a Default in the payment
of principal or interest when due, no Noteholder may pursue any remedy with respect to this
Indenture or the Notes unless:




          (a) the Noteholder gives to the Trustee written notice stating that an Event of Default is
continuing:




          (b) the Noteholders of at least 25% in aggregate principal amount of the outstanding Notes
make a written request to the Trustee to pursue the remedy and offer to the Trustee security or
indemnity satisfactory to it against any costs, liability or expense of the Trustee;




          (c) the Trustee does not comply with the request within 60 calendar days after receipt of the
request and the offer of security or indemnity; and




          (d) the Trustee does not receive an inconsistent direction from Noteholders of a majority in
aggregate principal amount of the Notes during such 60 day period.




          A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder (it being understood that the Trustee does
not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Noteholders).




- 38 -









 








          Notwithstanding any other provision of this Indenture and any provision of any Notes, the
right of any holder of any Notes to receive payment of the principal of (including the Fundamental
Change Repurchase Price upon repurchase) and accrued interest on such Notes, on or after the
respective due dates expressed in such Notes 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 Holder.




          Anything contained in this Indenture or the Notes to the contrary notwithstanding, the holder
of any Notes, without the consent of either the Trustee or the holder of any other Notes, on 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 6.08. Rights of Noteholders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Noteholder to receive payment of principal (including
payments pursuant to the required repurchase provisions of the Notes) of and interest on the Notes
held by such Noteholder, on or after the respective due dates expressed in the Notes or in the
event of repurchase, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Noteholder. In
addition, notwithstanding any other provision of this Indenture, the right of any Noteholder to
enforce its rights of cash conversion in accordance with the provisions of Article 10, on or after
the applicable date for settlement of the Company’s Cash Conversion Obligation, shall not be
impaired or affected without the consent of such Noteholder.




          SECTION 6.09. Collection Suit by Trustee. If an Event of Default specified in
Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the amounts provided for
in Section 7.07.




          SECTION 6.10. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel) and the Noteholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective creditors or
property and, unless prohibited by law or applicable regulations, may be entitled and empowered to
participate as a member of any official committee of creditors appointed in such matter, and may
vote on behalf of the Noteholders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Noteholder to make payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section 7.07.




          SECTION 6.11. Priorities. If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money or property in the following order:




- 39 -









 









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




     SECOND: to Noteholders for amounts due and unpaid on the Notes for principal
(including payments pursuant to the required repurchase provisions of the Notes) and
interest, ratably without preference or priority of any kind, according to the amounts due
and payable on the Notes for principal (including payments pursuant to the required
repurchase provisions of the Notes) and interest, respectively; and



          THIRD: to the Company.




          The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to
this Section 6.11. At least fifteen calendar days before such record date, the Trustee shall mail
to each Noteholder and the Company a notice that states the record date, the payment date and
amount to be paid.




          SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a Noteholder
pursuant to Section 6.08 or a suit by Noteholders of more than 10% in principal amount of the
Notes.




          SECTION 6.13. Failure to Comply with Reporting Covenant. Notwithstanding anything
to the contrary in this Indenture, the sole remedy for an Event of Default relating to the
Company’s failure to perform or observe the covenant in Section 4.03(a) will for the 364 days after
the occurrence of such an Event of Default consist exclusively of the right to receive additional
interest (“Reporting Additional Interest”) on the Notes at an annual rate equal to 0.50% of the
principal amount of the Notes. Reporting Additional Interest will be payable in the same manner
and on the same Interest Payment Dates as the stated interest payable on the Notes. Reporting
Additional Interest will accrue on all outstanding Notes from and including the date on which an
Event of Default relating to a failure by the Company to comply with its obligations pursuant to
Section 4.03(a) first occurs to, but not including, the 365th day thereafter (or such
earlier date on which the Event of Default relating to the Company’s obligations pursuant to
Section 4.03(a) shall have been cured or waived). On such 365th day (or earlier, if an
Event of Default relating to the Company’s obligations pursuant to Section 4.03(a) is cured or
waived prior to such 365th day), such Reporting Additional Interest will cease to accrue
and the Notes will be subject to acceleration as provided in Section 6.02 if such Event of Default
is continuing. For the avoidance of doubt, in the event Additional Interest is also triggered
under Section 6.03, the interest rate applicable to the Notes under such section shall apply to the
Notes under this Section 6.13 and shall constitute the exclusive rate of additional interest
applicable to the Notes under such circumstances.





- 40 -












 





ARTICLE 7




Trustee




          SECTION 7.01.   Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in its exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such Person’s own affairs.




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





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




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



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





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




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.06.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.




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




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




- 41- 









 








          (h) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section and to the
provisions of the Trust Indenture Act.




          SECTION 7.02.   Rights of Trustee. (a) The Trustee may conclusively rely on any
document believed by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.




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




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




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers.




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




          (f) The Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit.




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




          (h) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its rights to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to 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.




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          (j) 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.




          (k) The Trustee shall not be required to give any note, bond or surety in respect of the
execution of the trusts and powers under this Indenture.




          (l) The Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;
riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or
communication services; accidents; labor disputes; acts of civil or military authorities and
governmental action.




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




          (n) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Indenture.




          SECTION 7.03.   Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Conversion Agent,
Paying Agent, Registrar or co-paying agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.




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




          SECTION 7.05.   Notice of Defaults. (a) The Trustee shall not be deemed to have
notice of any Default, other than a payment default, unless a Responsible Officer shall have been
advised in writing that a Default has occurred. No duty imposed upon the Trustee in this Indenture
shall be applicable with respect to any Default of which the Trustee is not deemed to have notice.




          (b) If a Default or Event of Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail by first class mail to each Noteholder at the address set forth in
the Register notice of the Default or Event of Default within 90 calendar days after it occurs.
Except in the case of a Default or Event of Default in payment of principal (including payments



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pursuant to the required repurchase provisions of such Note) or interest on any Note, the
Trustee may withhold notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding notice is in the interests of the Noteholders.




          SECTION 7.06.   Reports by Trustee to Noteholders. As promptly as practicable after
each May 15 beginning with the May 15 following the date of this Indenture, the Trustee shall mail
to each Holder a brief report dated as of such May 15 that complies with Section 313(a) of the
Trust Indenture Act, if required by such Section 313(a) of the Trust Indenture Act. The Trustee
also shall comply with Section 313(b) of the Trust Indenture Act. The Trustee shall also transmit
by mail all reports required by Section 313(c) of the Trust Indenture Act.




          SECTION 7.07.   Compensation and Indemnity. The Company shall pay to the Trustee from
time to time such compensation as the Company and the Trustee shall from time to time agree in
writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
The Company shall indemnify the Trustee, and hold it harmless, against any and all loss, damage,
claim, liability or expense (including reasonable attorneys’ fees and expenses) incurred by or in
connection with the offer and sale of the Notes or the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company of any claim for which
it may seek indemnity promptly upon obtaining actual knowledge thereof; provided,
however, that any failure so to notify the Company shall not relieve the Company of its
indemnity obligations hereunder. The Company shall defend the claim and the indemnified party
shall provide reasonable cooperation at the Company’s expense in the defense. Such indemnified
parties may have separate counsel and the Company shall pay the fees and expenses of such counsel;
provided, however, that the Company shall not be required to pay such fees and
expenses if it assumes such indemnified parties’ defense and, in such indemnified parties’
reasonable judgment, there is no conflict of interest between the Company and such parties in
connection with such defense. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by an indemnified party through such party’s own willful
misconduct and negligence.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest and any liquidated damages on particular
Notes.




          The Company’s payment obligations pursuant to this Section shall survive the satisfaction or
discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy
law or the resignation or removal of the Trustee. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in Section 6.01(i) or (j) with respect to the Company,
the expenses are intended to constitute expenses of administration under the Bankruptcy Law.




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          SECTION 7.08.   Replacement of Trustee. The Trustee may resign at any time by so
notifying the Company. The Holders of a majority in principal amount of the Notes may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove
the Trustee if:




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




          (b) the Trustee is adjudged bankrupt or insolvent;




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




          (d) the Trustee otherwise becomes incapable of acting.




          If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Notes and such Noteholders do not reasonably promptly appoint a successor Trustee, or
if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Noteholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.




          If a successor Trustee does not take office within 30 calendar days after the retiring Trustee
resigns or is removed, the retiring Trustee or the holders of 10% in principal amount of the Notes
may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.




          If the Trustee fails to comply with Section 7.10, any Noteholder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




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




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




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to the



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Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Notes or in this Indenture provided that the certificate of the
Trustee shall have.




          SECTION 7.10.   Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of Trust Indenture Act § 310(a). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Trust Indenture Act § 310(b); provided,
however, that there shall be excluded from the operation of Trust Indenture Act § 310(b)(1)
any indenture or indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the requirements for such
exclusion set forth in Trust Indenture Act § 310(b)(1) are met.




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




ARTICLE 8




Discharge of Indenture




          SECTION 8.01.   Discharge of Liability on Notes. (a) When (i) the Company delivers
to the Trustee all outstanding Notes (other than Notes replaced pursuant to Section 2.09) for
cancellation or (ii) all outstanding Notes have become due and payable, whether at maturity or upon
a repurchase pursuant to Article 3 hereof, and the Company irrevocably deposits with the Trustee
money sufficient to pay at maturity or upon repurchase all outstanding Notes, including interest
thereon to maturity or such Fundamental Change Repurchase Date (other than Notes replaced pursuant
to Section 2.09), and any cash or other property due in respect of converted Notes, and if in each
such case the Company pays all other sums payable hereunder by the Company, then this Indenture
shall, subject to Section 8.01(b), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on written demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Company.




          (b) Notwithstanding clause (a) above, the Company’s obligations in Sections 2.05, 2.06, 2.07,
2.08, 2.09, 2.10, 7.07, 7.08 and in this Article 8 shall survive until the Notes have been paid in
full. Thereafter, the Company’s obligations in Sections 7.07, 8.03 and 8.04 shall survive.




          SECTION 8.02.   Application of Trust Money. The Trustee shall hold in trust money or
other property due in respect of converted Notes deposited with it pursuant to this Article 8. It
shall apply the deposited money through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Notes or, in the case of any cash or other property
due in respect of converted Notes, in accordance with this Indenture in relation to the conversion
of Notes pursuant to the terms hereof.




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          SECTION 8.03.   Repayment to Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them at any time.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of principal or interest
and any cash or other property due in respect of converted Notes that remains unclaimed for two
years, and, thereafter, Noteholders entitled to the money and/or securities must look to the
Company for payment as general creditors.




          SECTION 8.04.   Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or to deliver any other property due in respect of converted Notes in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though
no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent
is permitted to apply all such money and any other property due in respect of cash converted Notes
in accordance with this Article 8; provided, however, that, if the Company has made
any payment of interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Noteholders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.




ARTICLE 9



Amendments




          SECTION 9.01.   Without Consent of Noteholders. The Company and the Trustee may amend
this Indenture or the Notes without notice to or consent of the holder of any Notes to, among other
things:




          (a) provide for conversion rights of holders of the Notes and the Company’s repurchase
obligations in connection with a Fundamental Change in the event of any reclassification of Common
Stock, merger or consolidation, or sale, conveyance, transfer or lease of its property and assets
substantially as an entirety;




          (b) provide for the assumption of the Company’s obligations to the holders of the Notes in the
event of any reclassification of Common Stock, merger or consolidation, or sale, conveyance,
transfer or lease of its property and assets substantially as an entirety;




          (c) surrender any right or power conferred upon the Company;




          (d) add to the covenants of the Company for the benefit of the Holders of the Notes, including
adding one or more additional put rights in favor of the Holders of the Notes;




          (e) cure any ambiguity, omission or correct or supplement any provisions of this Indenture
which may be defective or otherwise inconsistent with any other provision of this Indenture;




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          (f) make any provision with respect to matters or questions arising under this Indenture that
the Company may deem necessary or desirable and that shall not be inconsistent with provisions of
this Indenture; provided that such change or modification does not adversely affect the
interests of the Holders of the Notes in any material respect;




          (g) increase the Conversion Rate; provided that the increase will not adversely affect
the interests of the Holders of the Notes;




          (h) secure the Notes;




          (i) add guarantees of obligations under the Notes;




          (j) provide for a successor Trustee; and




          (k) conform the terms of this Indenture or the Notes to the description of this Indenture or
the Notes contained in the Offering Memorandum.




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



          SECTION 9.02.   With Consent of Noteholders. Except as provided in the next sentence,
the Company and the Trustee may amend this Indenture or the Notes with the written consent or
affirmative vote of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding, without notice to any other Noteholder. However, without the written consent or
affirmative vote of each Holder of an outstanding Note affected (including, without limitation,
consents obtained in connection with a purchase of or tender offer or exchange offer for, the
Notes), an amendment may not:




          (a) extend the maturity of any Notes;




          (b) reduce the rate of or extend the time for payment of interest on any Notes;




          (c) reduce the principal amount of any Notes;




          (d) reduce any amount payable upon repurchase of any Notes;




          (e) impair the right of a holder to institute suit for payment of any Notes;




          (f) change the currency in which any Notes are payable;




          (g) change the Company’s obligation to repurchase any Notes upon a Fundamental Change in a
manner adverse to the Holders;




          (h) affect the right of a Holder to convert any Notes into cash or reduce the Conversion Rate,
except as permitted pursuant to this Indenture;




          (i) change the Company’s obligation to maintain an office or agency;




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          (j) modify certain provisions of this Indenture relating to modification of this Indenture or
waiver under this Indenture; or




          (k) reduce the percentage of the Notes required for consent to any modification of this
Indenture that does not require the consent of each affected Holder.




          For the avoidance of doubt, the only written consent or affirmative vote required to approve
any of the foregoing changes is the written consent or affirmative vote of each Note affected by
such change; the written consent or affirmative vote of the Holders of a majority in aggregate
principal amount of the Notes then outstanding is not additionally required.




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




          After an amendment under this Section 9.02 becomes effective, the Company shall mail to
Noteholders a notice briefly describing such amendment. The failure to give such notice to all
Noteholders, or any defect therein, shall not impair or affect the validity of an amendment under
this Section 9.02.




          Any Notes held by the Company or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall be disregarded
(from both the numerator and the denominator) for purposes of determining whether the holders of
the requisite aggregate principal amount of the outstanding Notes have consented to or voted for a
modification, amendment or waiver of the terms of this Indenture.




          SECTION 9.03.   Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Notes shall comply with the Trust Indenture Act as then in effect.




          SECTION 9.04.   Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Noteholder of a Note shall bind the Noteholder and every subsequent
Noteholder of that Note or portion of the Note that evidences the same debt as the consenting
Noteholder’s Note, even if notation of the consent or waiver is not made on the Note. However, any
such Noteholder or subsequent Noteholder may revoke the consent or waiver as to such Noteholder’s
Note or portion of the Note if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. An amendment or waiver becomes effective once both (i) the
requisite number of consents or votes have been received by the Company or the Trustee and (ii)
such amendment or waiver has been executed by the Company and the Trustee.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Noteholders entitled to vote or give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date
is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were
Noteholders at such record date (or their duly designated proxies), and only those Persons, shall
be entitled to vote or give such consent or to revoke any vote or consent previously given or to
take any such action, whether or not such Persons continue to be Noteholders after such record



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date. No such vote or consent shall be valid or effective for more than 120 calendar days
after such record date.




          SECTION 9.05.   Notation on or Exchange of Notes. If an amendment changes the terms
of a Note, the Trustee may require the Noteholder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note regarding the changed terms and return it to
the Noteholder. Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect
the validity of such amendment.




          SECTION 9.06.   Trustee to Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article 9 if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall receive, and (subject to Sections 7.01 and 7.02)
shall be fully protected in conclusively relying upon, in addition to the documents required by
Section 11.04, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture and that such amendment is the legal, valid and binding
obligation of the Company enforceable against it in accordance with its terms, subject to customary
exceptions, and complies with the provisions hereof (including Section 9.03).




ARTICLE 10




Cash Conversion of Notes




          SECTION 10.01.   Right to Cash Convert. Upon compliance with the provisions of this
Article 10, a Noteholder shall have the right, at such Holder’s option, to cash convert all or any
portion (if the portion to be cash converted is $1,000 principal amount or multiple thereof) of
such Notes, at any time prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Maturity Date based on an initial Conversion Rate (the “Conversion Rate”) of 53.9185
shares of Common Stock (subject to adjustments as provided in Sections 10.03 and 10.04 of this
Indenture) per $1,000 principal amount of Notes (the “Cash Conversion Obligation”) only under the
following circumstances:





     (1) Cash Conversion Based on Satisfaction of Stock Price Condition. Prior to March 1,
2014, on any date during any fiscal quarter commencing at any time after June 30, 2009 and
only during such fiscal quarter, if the Closing Sale Price for Common Stock for at least 20
Trading Days during a period of 30 consecutive Trading Days ending on the last Trading Day
of the preceding fiscal quarter (the “Stock Price Measurement Period”) is more than 130% of
the applicable Conversion Price. Whenever the Notes shall become cash convertible pursuant
to this Section 10.01(1), the Company shall notify all Noteholders, the Trustee and the
Conversion Agent promptly and, simultaneously with providing such notice, the Company shall
issue a press release containing the relevant information and make this information
available on its website;



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     (2) Cash Conversion During the Period From March 1, 2014 to Maturity. A Noteholder may
surrender all or a portion of its Notes for cash conversion at any time on or after March 1,
2014 until 5:00 p.m. New York City time, on the Business Day immediately preceding the
Maturity Date;




     (3) Cash Conversion Upon Specified Corporate Transactions. If the Company elects to:




          (i) distribute to all or substantially all holders of its Common Stock, rights,
options or warrants (other than pursuant to a rights plan) entitling such holders to
purchase, for a period of 45 calendar days or less, shares of Common Stock at a
price less than the average Closing Sale Price of Common Stock for the ten
consecutive Trading Days immediately preceding the declaration date for such
distribution; or




          (ii) distribute to all or substantially all holders of Common Stock, cash or
other assets, debt securities or rights to purchase securities of the Company (other
than pursuant to a rights plan or a dividend or distribution on Common Stock in shares of Common Stock), which distribution has a per share value, as determined by
the Board of Directors, exceeding 10% of the Closing Sale Price of Common Stock on
the Trading Day immediately preceding the declaration date for such distribution.


then, in each case, the Company shall notify, in writing, all Noteholders, the Trustee and the
Conversion Agent at least 55 Scheduled Trading Days prior to the Ex-Dividend Date for such
distribution. Simultaneously with providing such notice, the Company shall issue a press release
containing the relevant information, including, but not limited to, the declaration date, and make
this information available on its website. Once the Company has given such notice, the Notes may
be surrendered for cash conversion at any time until the earlier of 5:00 p.m., New York City time,
on the Business Day preceding the Ex-Dividend Date or any announcement by the Company that such
distribution will not take place. A Holder may not cash convert any of its Notes based on this
Section 10.01(3) if the Company makes provision for such Holder to participate in the distribution
without conversion as a result of holding the Notes on an “as converted” basis (i.e., as though
such Holder had exchanged each $1,000 principal amount of its Notes immediately prior to the record
date for such distribution for a number of shares of Common Stock equal to the then applicable
Conversion Rate);





     (4) Cash Conversion Upon a Consolidation, Merger or Sale, Lease, Transfer, Conveyance
or other Disposition. In the event the Company is a party to a consolidation, merger or
sale, lease, transfer, conveyance or other disposition of all or substantially all of its
assets and those of its Subsidiaries taken as a whole that does not constitute a Fundamental
Change, in each case pursuant to which Common Stock would be converted into cash, securities
and/or other property, at any time beginning on the Business Day immediately following the
effective date of the transaction until 5:00 p.m., New York City time, on the
30th Business Day thereafter. The Company will notify Holders of the transaction
and the effective date thereof promptly on or following the effective date of such
transaction.



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     (5) Cash Conversion Upon a Fundamental Change. In the event of a Fundamental Change, a
Noteholder may surrender all or a portion of its Notes for cash conversion at any time
beginning on the Business Day following the effective date of the Fundamental Change until
5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental
Change Repurchase Date relating to such Fundamental Change. The Company will notify Holders
of any Fundamental Change and the effective date thereof promptly on or following the
effective date of such Fundamental Change. Simultaneously with providing such notice, the
Company shall issue a press release containing the relevant information and make this
information available on its website; and




     (6) Cash Conversion Upon Satisfaction of Trading Price Condition. During the five
consecutive Business Day period following any five consecutive Trading Day period (the
“Trading Price Measurement Period”) in which the Trading Price per $1,000 principal amount
of Notes, as determined following a request by a Holder in accordance with the procedures
set forth in this Section 10.01(6), for each day in the Trading Price Measurement Period was
less than 95% of the product of the Closing Sale Price of Common Stock and the applicable
Conversion Rate. In connection with any cash conversion in accordance with this Section
10.01(6), the Bid Solicitation Agent shall have no obligation to determine the Trading Price
of the Notes unless requested by the Company; and the Company shall have no obligation to
make such request unless a Holder provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Notes would be less than 95% of the product of
the Closing Sale Price of Common Stock and the applicable Conversion Rate. At such time,
the Company shall instruct the Bid Solicitation Agent to determine the Trading Price of the
Notes beginning on the next Trading Day and on each successive Trading Day until the Trading
Price per $1,000 principal amount of Notes is greater than or equal to 95% of the product of
the Closing Sale Price of Common Stock and the applicable Conversion Rate. Whenever the
Notes shall become cash convertible pursuant to this Section 10.01(6), the Company shall
notify all Noteholders, the Trustee and the Conversion Agent promptly and, simultaneously
with providing such notice, the Company shall issue a press release containing the relevant
information and make this information available on its website;



          SECTION 10.02.   Cash Conversion Procedures; Settlement Upon Conversion; No Adjustment for
Interest or Dividends(a) . (a) In order to exercise the cash conversion right with respect to
any Notes in certificated form, a Holder must (A) complete and manually sign an irrevocable notice
of cash conversion in the form entitled “Form of Cash Conversion Notice” attached to the reverse of
such certificated Note (or a facsimile thereof) (a “Cash Conversion Notice”), (B) deliver such Cash
Conversion Notice and certificated Note to the Conversion Agent at the office of the Conversion
Agent, (C) if required, furnish endorsements and transfer documents as may be required by the
Conversion Agent, (D) if required pursuant to Section 2.03(c), pay funds equal to interest payable
on the next Interest Payment Date and (E) if required pursuant to Section 10.02(g), pay all
transfer or similar taxes or duties.




     In order to exercise the cash conversion right with respect to any interest in a Global Note,
a Holder must (A) comply with the Depositary’s procedures for cash converting a




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beneficial interest in a Global Note, (B) if required pursuant to Section 2.03(c), pay funds equal
to interest payable on the next Interest Payment Date; and (C) if required pursuant to Section
10.02(g), pay all transfer or similar taxes or duties.




     The date that the Holder satisfies the foregoing requirements is the “Conversion Date.”



     If a Holder has submitted any Notes for repurchase pursuant to Section 3.01, such Notes may be
cash converted only if the Holder submits a withdrawal notice in accordance with Section 3.03 prior
to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change
Repurchase Date and if such Notes are evidenced by a Global Note, if the Holder complies with
appropriate Depositary procedures.



          (b) Upon cash conversion, the Company will deliver to Holders in respect of each $1,000
principal amount of Notes being cash converted a “Cash Conversion Settlement Amount” equal to the
sum of the Daily Conversion Values during the applicable Conversion Period. Except as provided by
Section 10.04(f), the Company will not deliver Common Stock (or any other securities) upon
conversion under any circumstances.




          (c) Settlement will occur on the third Business Day immediately following the final Settlement
Period Trading Day of the applicable Conversion Period.




          (d) If more than one Note shall be surrendered for cash conversion at one time by the same
Holder, the Cash Conversion Obligation with respect to such Notes that shall be payable upon cash
conversion shall be computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof to the extent permitted thereby) so surrendered.




          (e) In case any Note shall be surrendered for partial cash conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder
of the Note so surrendered, without charge to such Holder, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion of the surrendered
Note.




          (f) Upon the cash conversion of an interest in a Global Note, the Trustee and the Depositary
shall reduce the principal amount of such Global Note in their records.




          (g) In the event the Holder of a Note executes its cash conversion right and, pursuant to
Section 10.04(f), is entitled to assets, debt securities or rights, warrants or options upon such
cash conversion, the issue of securities certificates, if any, on cash conversions of Notes shall
be made without charge to the converting holder of Notes 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 which may be payable in respect of any transfer involved in the issue and
delivery of such securities in any name other than that of the holder of any Notes 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.




- 53 -









 








          (h) Upon cash conversion, accrued and unpaid interest to the Conversion Date with respect to
the converted Notes shall be deemed to be paid in full rather than cancelled, extinguished or
forfeited.




          SECTION 10.03.   Adjustment to Conversion Rate Upon a Non-Stock Change of Control.




          (a) If and only to the extent a Holder elects to cash convert its Notes in connection with a
Non-Stock Change of Control, the Conversion Rate applicable to such converted Notes shall be
increased by a number of additional shares of Common Stock (the “Additional Shares”) as set forth
below. Any cash conversion by a Holder will be deemed to have occurred in connection with such
Non-Stock Change of Control only if the Cash Conversion Notice is received by the Conversion Agent
during the period from the Business Day following the date on which the Non-Stock Change of Control
becomes effective (the “Effective Date”) to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Fundamental Change Repurchase Date relating to such Non-Stock Change of
Control and notwithstanding the fact that a Note may then be convertible because another condition
to conversion has been satisfied.




          (b) The number of Additional Shares shall be determined by reference to the table below, based
on the Effective Date and the price (the “Stock Price”) paid per share for Common Stock in such
Non-Stock Change of Control. If holders of Common Stock receive only cash in the Non-Stock Change
of Control, 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 Common Stock on the five Trading Days prior to,
but not including, the Effective Date of such Non-Stock Change of Control.




          The number of Additional Shares set forth in the table below shall be adjusted in the same
manner as and as of any date on which the Conversion Rate is adjusted pursuant to this Article 10.
The Stock Prices set forth in the first row of the table below (i.e., the column headers) shall be
adjusted, as of any date on which the Conversion Rate is adjusted, to equal the Stock Prices
applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which
shall be the Conversion Rate immediately prior to the adjustment and the denominator of which shall
be the Conversion Rate as so adjusted.




          The following table sets forth the Stock Price and number of Additional Shares by which the
Conversion Rate shall be increased:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$15.14	 	$17.50	 	$20.00	 	$22.50	 	$25.00	 	$27.50	 	$30.00	 	$35.00	 	$40.00	 	$45.00	 	$50.00	 	$60.00
	 
	May 22, 2009
	 	 	12.1316	 	 	 	10.1729	 	 	 	7.5920	 	 	 	5.8094	 	 	 	4.5340	 	 	 	3.5940	 	 	 	2.8837	 	 	 	1.9045	 	 	 	1.2824	 	 	 	0.8676	 	 	 	0.5810	 	 	 	0.2353	 
	June 1, 2010
	 	 	12.1316	 	 	 	9.4909	 	 	 	6.9084	 	 	 	5.1691	 	 	 	3.9550	 	 	 	3.0808	 	 	 	2.4343	 	 	 	1.5661	 	 	 	1.0308	 	 	 	0.6813	 	 	 	0.4444	 	 	 	0.1643	 
	June 1, 2011
	 	 	12.1316	 	 	 	8.7999	 	 	 	6.1713	 	 	 	4.4640	 	 	 	3.3155	 	 	 	2.5176	 	 	 	1.9465	 	 	 	1.2098	 	 	 	0.7745	 	 	 	0.4981	 	 	 	0.3140	 	 	 	0.1003	 
	June 1, 2012
	 	 	12.1316	 	 	 	8.0277	 	 	 	5.2784	 	 	 	3.5956	 	 	 	2.5347	 	 	 	1.8440	 	 	 	1.3787	 	 	 	0.8198	 	 	 	0.5111	 	 	 	0.3213	 	 	 	0.1959	 	 	 	0.0493	 
	June 1, 2013
	 	 	12.1316	 	 	 	6.8033	 	 	 	3.8474	 	 	 	2.2603	 	 	 	1.4056	 	 	 	0.9339	 	 	 	0.6616	 	 	 	0.3827	 	 	 	0.2422	 	 	 	0.1531	 	 	 	0.0897	 	 	 	0.0083	 
	June 1, 2014
	 	 	12.1316	 	 	 	3.2244	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






          provided, however, that:




- 54 -









 








          (1) If the Stock Price and Effective Date are not set forth on the table above and the Stock
Price is between two Stock Prices set forth in such table or the Effective Date is between two
Effective Dates set forth in the table, the number of Additional Shares shall be determined by the
Company by straight-line interpolation between the number of Additional Shares set forth for the
higher and lower Stock Price amounts and the two Effective Dates, as applicable, based on a 360-day
year.




          (2) If the Stock Price is:




          (a) in excess of $60.00 per share (subject to adjustment), the Conversion Rate will not be
increased; or




          (b) less than $15.14 per share (subject to adjustment), the Conversion Rate will not be
increased.




          (3) Notwithstanding the foregoing, in no event will the Conversion Rate as adjusted exceed
66.0501 per $1,000 principal amount of the Notes, subject to adjustment in the same manner as the
Conversion Rate as set forth in this Article 10.




          SECTION 10.04.   Adjustment of Conversion Rate. The Conversion Rate shall be adjusted
from time to time by the Company as follows:




          (a) If the Company shall issue to all or substantially all holders of Common Stock shares of
Common Stock as a dividend or distribution on shares of Common Stock, or effects a subdivision or
combination of Common Stock, in which event the Conversion Rate will be adjusted based on the
following formula:









     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such dividend or distribution or the
effective date of such subdivision or combination, as applicable;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect at 9:00 a.m., New York City time, on
the Ex-Dividend Date for such dividend or distribution or the effective date of
such subdivision or combination, as applicable;
	 
	 	 
	OS0 =

	 	the number of shares of Common Stock outstanding immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or
distribution or the effective date of such subdivision or combination, as
applicable; and
	 
	 	 
	OS’ =

	 	the number of shares of Common Stock that would be outstanding
immediately after, and solely as a result of, such event.






- 55 -









 





Such adjustment shall become effective at 9:00 a.m., New York City time, on (x) the Ex-Dividend
Date for such dividend or distribution or (y) the effective date of such subdivision or
combination. If any dividend or distribution described in this Section 10.04(a) is declared but not
so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to make such dividend or distribution, to the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared. For purposes of this Section 10.04(a), the number of shares of Common Stock outstanding
immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or
distribution shall not include Common Stock held in treasury, if any. The Company will not pay any
dividend or make any distribution on Common Stock held in treasury, if any.




          (b) If the Company shall issue to all or substantially all holders of Common Stock any rights
or warrants entitling them to purchase, for a period of forty-five (45) calendar days or less,
shares of Common Stock at a price per share less than the average of the Closing Sale Prices of the
Common stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the declaration date for the issuance of such rights or warrants of Common
Stock, in which event the Conversion Rate will be adjusted based on the following formula:









     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such issuance;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect at 9:00 a.m., New York City time, on
the Ex-Dividend Date for such issuance;
	 
	 	 
	OS0 =

	 	the number of shares of Common Stock outstanding immediately prior to
9:00 a.m., New York City time, on the Ex-Dividend Date for such issuance;
	 
	 	 
	X =

	 	the total number of shares of Common Stock issuable pursuant to such
rights or warrants; and
	 
	 	 
	Y =

	 	the number of shares of Common Stock equal to the aggregate price
payable to exercise such rights or warrants divided by the average of the Closing
Sale Prices of Common Stock over the ten consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the declaration date for the
issuance of such rights or warrants.





Such adjustment shall become effective immediately at 9:00 a.m., New York City time, on the
Ex-Dividend Date for such issuance. In the event that such rights or warrants described in this
Section 10.04(b) are not so issued, the Conversion Rate shall be readjusted, effective as of the



- 56 -









 






date the Board of Directors publicly announces its decision not to issue such rights or warrants,
to the Conversion Rate that would then be in effect if such distribution had not been declared. To
the extent that such rights or warrants are not exercised prior to their expiration or shares of
Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of
such rights 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 or warrants been made
on the basis of the delivery of only the number of shares of Common Stock actually delivered. In
determining the aggregate price payable for such shares of Common Stock, there shall be taken into
account any consideration received for such rights or warrants and the value of such consideration
(if other than cash, to be determined by the Board of Directors). For purposes of this Section
10.04(b), the number of shares of Common Stock outstanding immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such issuance shall not include Common Stock held in
treasury, if any. The Company will not issue any such rights or warrants in respect of Common
Stock held in treasury, if any.




          (c) If the Company shall distribute to all or substantially all holders of Common Stock,
shares of the Capital Stock (other than Common Stock), evidences of the Company’s indebtedness or
assets, including securities, but excluding:





     (1) any dividends or distributions referred to in Section 10.04(a);




     (2) the rights and warrants referred to in Section 10.04(b);




     (3) any dividends or distributions paid referred to in Section 10.04(d);




     (4) any dividends and distributions in connection with a Reorganization Event pursuant
to Section 10.05; or




     (5) any Spin-Off to which the provisions set forth below in this Section 10.04(c)
apply,




     in which event the Conversion Rate will be adjusted based on the following formula:








     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such distribution;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect at 9:00 a.m., New York City time, on
the Ex-Dividend Date for such distribution;
	 
	 	 
	SP0 =

	 	the average of the Closing Sale Prices of Common Stock over the ten
consecutive Trading Day period ending on, and including, the Trading






- 57 -









 






	 	 	 
	 

	 	Day immediately preceding the Ex-Dividend Date for such distribution; and
	 
	 	 
	FMV =

	 	the Fair Market Value (as determined by the Board of Directors), on
the Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness or
assets so distributed, expressed as an amount per share of Common Stock.






     Such adjustment made pursuant to the preceding paragraph of this Section 10.04(c) shall become
effective at 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. In the
event that such distribution described in the preceding paragraph of this Section 10.04(c) is not
so made, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors
publicly announces its decision not to effect such distribution, to the Conversion Rate which would
then be in effect if such distribution had not been declared.



     If the transaction that gives rise to an adjustment pursuant to this Section 10.04(c) is,
however, one pursuant to which the payment of a dividend or other distribution on Common Stock
consists of shares of Capital Stock of, or similar equity interests in, a Subsidiary or other
business unit of the Company (a “Spin-Off”) that are, or, when issued, will be, traded or quoted on
the NYSE or any other national or regional securities exchange or market, then the Conversion Rate
will instead be adjusted based on the following formula:








     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for the Spin-Off;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect at 9:00 a.m., New York City time, on
the Ex-Dividend Date for the Spin-Off;
	 
	 	 
	FMV0 =

	 	the average of the Closing Sale Prices of the Capital Stock or similar
equity interests distributed to holders of Common Stock applicable to one share of
Common Stock over the 10 consecutive Trading Day period commencing on and including
the effective date of the Spin-Off (the “Valuation Period”); and
	 
	 	 
	MP0 =

	 	the average of the Closing Sale Prices of Common Stock over the
Valuation Period.





Such adjustment made pursuant to the preceding paragraph of this Section 10.04(c) shall be made
immediately prior to 9:00 a.m., New York City time, on the Trading Day after the last day of the
Valuation Period, but will be given effect at 9:00 a.m., New York City time, on the Ex-Dividend
Date for the Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than ten Trading Days
prior to, and including, the end of the applicable Conversion Period in respect of


- 58 -









 






any conversion, references within this Section 10.04(c) to ten Trading Days shall be deemed
replaced, for purposes of calculating the affected daily Conversion Rates in respect of that
conversion, with such lesser number of Trading Days as have elapsed from, and including, the
Ex-Dividend Date for the Spin-Off to, and including, the last Trading Day of such applicable
Conversion Period. For purposes of determining the applicable Conversion Rate, in respect of any
cash conversion during the ten Trading Days commencing on the Ex-Dividend Date for any Spin-Off,
references within the portion of this Section 10.04(c) related to Spin-Offs to ten Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
including, the Ex-Dividend Date for such Spin-Off to, but excluding, the relevant Conversion Date.
In the event that such Spin-Off described in the preceding paragraph of this Section 10.04(c) is
not so made, the Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to effect such Spin-Off, to be the Conversion Rate
which would then be in effect if such Spin-Off had not been declared.




          (d)  If the Company pays any dividends or other distributions consisting exclusively of cash
to all or substantially all holders of Common Stock (other than dividends or distributions made in
connection with the Company’s liquidation, dissolution or winding-up or upon Reorganization Event),
in which event the Conversion Rate will be adjusted based on the following formula:









     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect immediately prior to 9:00 a.m., New
York City time, on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect at 9:00 a.m., New York City time,
on the Ex-Dividend Date for such dividend or distribution;
	 
	 	 
	SP0 =

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

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





Such adjustment shall become effective at 9:00 a.m., New York City time, on the Ex-Dividend Date
for such dividend or distribution. In the event that any distribution described in this Section
10.04(d) is not so made, the Conversion Rate shall be readjusted, effective as of the date the
Board of Directors publicly announces its decision not to pay such dividend or distribution, to be
the Conversion Rate which would then be in effect if such dividend or distribution had not been
declared.




- 59 -









 








          (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for the Common Stock to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of
Common Stock on the Trading Day immediately succeeding the last date (the “Expiration Date”) on
which tenders or exchanges may be made pursuant to such tender offer or exchange offer, the
Conversion Rate will be adjusted based on the following formula:









     where



	 	 	 
	 
	 	 
	CR0 =

	 	the Conversion Rate in effect at 5:00 p.m., New York City time, on the
Expiration Date;
	 
	 	 
	CR’ =

	 	the Conversion Rate in effect immediately after 5:00 p.m. New York
City time, on the Expiration Date;
	 
	 	 
	FMV =

	 	the Fair Market Value (as determined by the Board of Directors), on
the Expiration Date, of the aggregate value of all cash and any other consideration
paid or payable for shares validly tendered or exchanged and not withdrawn as of
the Expiration Date;
	 
	 	 
	OS’ =

	 	the number of shares of Common Stock outstanding immediately after
the last time tenders or exchanges may be made pursuant to such tender or exchange
offer (the “Expiration Time”);
	 
	 	 
	OS0 =

	 	the number of shares of Common Stock outstanding immediately prior to
the Expiration Time; and
	 
	 	 
	SP’ =

	 	the average of the Closing Sale Prices of Common Stock over the 10
consecutive Trading Day period commencing on the Trading Day immediately succeeding
the Expiration Date.





Such adjustment shall become effective after 5:00 p.m., New York City time, on the Expiration Date.
If the Trading Day next succeeding the Expiration Date is less than ten Trading Days prior to, and
including, the end of the applicable Conversion Period in respect of any conversion, references
within this Section 10.05(e) to ten Trading Days shall be deemed replaced, for purposes of
calculating the affected daily Conversion Rates in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the
Expiration Date to, and including, the last Trading Day of such Conversion Period. For purposes of
determining the applicable Conversion Rate, in respect of any conversion during the ten Trading
Days commencing on the Trading Day next succeeding the Expiration Date, references within this
Section 10.05(e) to ten Trading Days shall be deemed replaced with such lesser number of Trading
Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to,
but excluding, the relevant Conversion Date. In the event that the Company is, or one of the
Company’s Subsidiaries is, obligated to



- 60 -









 






purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the
Company is, or such Subsidiary is, permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, then the Conversion Rate shall be readjusted to be
the Conversion Rate which would then be in effect if such tender offer or exchange offer had not
been made. Except as set forth in the preceding sentence, if the application of this Section
10.05(e) to any tender offer or exchange offer would result in a decrease in the Conversion Rate,
no adjustment shall be made for such tender offer or exchange offer under this Section 10.05(e).




          (f) In cases where the Fair Market Value of assets, debt securities or certain rights,
warrants or options to purchase the Company’s securities, applicable to one share of Common Stock,
distributed to all or substantially all stockholders:





     (i) equals or exceeds the average Closing Sale Price of Common Stock over the ten
consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the Ex-Dividend Date for such distribution, or




     (ii) such average Closing Sale Price exceeds the Fair Market Value of such assets, debt
securities or rights, warrants or options so distributed by less than $1.00,


rather than being entitled to an adjustment in the Conversion Rate, the Holder of a Note will be
entitled to receive upon cash conversion, in addition to the cash equal to the Cash Conversion
Settlement Amount, the kind and amount of assets, debt securities or rights, warrants or options
comprising the distribution, if any, that such Holder would have received if such Holder had cash
converted such Notes immediately prior to the record date for determining the stockholders entitled
to receive the distribution.




          (g) To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for a period of at 20 Business Days if the increase is irrevocable
during the period and the Board of Directors shall have made a determination that such increase
would be in the Company’s best interest, which determination shall be conclusive. Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to Holders
of the Notes a notice of the increase, which notice will be given at least fifteen calendar days
prior to the effectiveness of any such increase, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.




          (h) In addition, the Company may (but is not required to) increase the Conversion Rate to
avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in
connection with any dividend or distribution of shares (or rights to acquire shares) or similar
event.




          (i) All calculations and other determinations under this Article 10 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share. No adjustment
pursuant to this Section 10.04 to the Conversion Rate shall be required unless such adjustment
would require a change of at least one percent (1%) in such Conversion Rate; provided that
any adjustments that by reason of this Section 10.04(i) are not required to be made



- 61 -









 






shall be carried forward and taken into account in any subsequent adjustment and make such
carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (x)
annually on the anniversary of the Closing Date and otherwise (y)(1) prior to the fifty-third
(53rd) Scheduled Trading Day preceding the Maturity Date of the Notes (whether at stated
maturity or otherwise) or (2) prior to the Fundamental Change Repurchase Date, unless such
adjustment has already been made.




          (j) Whenever the Conversion Rate is adjusted as herein provided, the Company will issue a
press release containing the relevant information, including, but not limited to, any applicable
declaration date, and make this information available on its website. In addition, the Company
shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’
Certificate setting forth any applicable declaration date and 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 without inquiry 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 such notice of such adjustment of the Conversion Rate
to the Holder of each Note at its last address appearing on the Register within 20 calendar days of
the effective date of such adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.




          (k) In any case in which this Section 10.04 provides that an adjustment shall become effective
at 9:00 a.m., New York City time, on (i) the Ex-Dividend Date for a dividend or distribution
described in Section 10.04(a), 10.04(c) and 10.04(d), (ii) the effective date for a subdivision or
combination of Common Stock described in Section 10.04(a), (iii) the Ex-Dividend Date for the
determination of stockholders entitled to receive a rights or warrants pursuant to Section
10.04(b), or (iv) the Expiration Date for any tender or exchange offer pursuant to Section
10.04(e), (each a “Determination Date”), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) paying to the Holder of any Notes cash
converted after such Determination Date and before the occurrence of such Adjustment Event, the
cash payable in respect of the additional shares of Common Stock upon which the Conversion Rate
would be based over and above the shares of Common Stock upon which the Conversion Rate would be
based before giving effect to such adjustment. For purposes of this Section 10.04(k), the term
“Adjustment Event” shall mean:





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




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




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



- 62 -









 






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



          (l) Notwithstanding any of the foregoing clauses in this Section 10.04, the applicable
Conversion Rate will not be adjusted pursuant to this Section 10.04 if the Holders of the Notes
will participate in the transaction that would otherwise give rise to adjustment pursuant to this
Section 10.04 without conversion of such Holder’s Notes on an “as converted” basis (i.e., as though
such Holder had exchanged each $1,000 principal amount of its Notes immediately prior to the record
date for such transaction for a number of shares of Common Stock equal to the then applicable
Conversion Rate). In no event will the Company adjust the Conversion Rate to the extent that the
adjustment would reduce the Conversion Price below the par value per share of Common Stock. In
addition, the applicable Conversion Rate will not be adjusted:





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




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




     (3) for a change in the par value of Common Stock.



          (m) For purposes of this Section 10.04, 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.




          (n) Whenever any provision of this Indenture requires the Company to calculate an average of
Closing Sale Prices of Common Stock over multiple days, the Company will make appropriate
adjustments (determined by the Board of Directors) to account for any adjustment to the Conversion
Rate that becomes effective or any event requiring an adjustment to the Conversion Rate where the
Ex-Dividend Date of the event occurs at any time during the period during which the average is to
be calculated. In addition, if during a period applicable for calculating the VWAP or Closing Sale
Price of Common Stock an event occurs that requires an adjustment to the Conversion Rate, the VWAP
or Closing Sale Price of Common Stock shall be calculated for such period in a manner determined by
the Company to appropriately reflect the impact of such event on the price of Common Stock during
such period.




- 63 -









 








          SECTION 10.05.   Effect of Reclassification, Consolidation, Merger or Sale. If any of
the following events occur:




          (a) any reclassification or change of the outstanding Common Stock (other than a change in par
value or as a result of a subdivision or combination to which Section 10.04(a) applies),




          (b) any consolidation or merger of the Company with or into another Person or any sale, lease,
transfer, conveyance or other disposition of all or substantially all of the Company’s assets and
those of its Subsidiaries taken as a whole to any other Person or Persons,



and, in each case, the holders of Common Stock receive stock, other securities or other property or
assets (including cash or any combination thereof) with respect to or in exchange for such Common
Stock, (any such event or transaction, a “Reorganization Event”), in each case, the Company or the
Successor Company, as the case may be, shall execute with the Trustee a supplemental indenture
(which shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so comply) providing
that from, and after the effective date of such Reorganization Event, the Cash Conversion
Settlement Amount shall, without the consent of any Holders of Notes, become convertible based on
the value over the applicable Conversion Period of the cash, securities or other property
consideration which the holders of Common Stock received in such Reorganization Event (the
“Reference Property”). If the Reorganization Event causes 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), the Reference Property upon which the Cash Conversion Settlement Amount
will be based will be deemed to be the weighted average of the kind and amount of consideration
received by the holders of Common Stock that affirmatively make such an election. In all cases,
the provisions under Section 10.02 shall continue to apply with respect to the calculation of the
Cash Conversion Settlement Amount; provided, however, that if the holders of Common Stock receive
only cash in such Reorganization Event, the Cash Conversion Settlement Amount for each $1,000
principal amount of Notes shall equal the Conversion Rate in effect on the Conversion Date
multiplied by the price paid per share of Common Stock in such Reorganization Event and settlement
will occur on the third trading day following the Conversion Date. The Company hereby agrees not
to become a party to any such transaction unless its terms are consistent with the foregoing. Such
supplemental indenture shall provide for adjustments which shall be as nearly equivalent as
practicable to the adjustments provided for in this Article 10.




          The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Noteholder, at the address of such Holder as it appears on the Register of the Notes
maintained by the Registrar, within twenty calendar days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental indenture.




          The above provisions of this Section 10.05 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales, leases, transfers, conveyances or other
dispositions.




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          (c) If this Section 10.05 applies to any event or occurrence, Section 10.04 shall not apply..




          SECTION 10.06.   Notice to Holders Prior to Certain Actions. Except where notice is
required pursuant to Section 10.01, 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 10.04; or




          (b) the Company shall authorize the granting to all or substantially all of the holders of its
Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other
rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section
10.04; or




          (c) of any reclassification of Common Stock of the Company (other than a share split or share
combination of its outstanding Common Stock, or a change in par value), or of any share exchange,
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 conveyance, transfer, sale, lease or other disposition of all
or substantially all of the consolidated assets of the Company; or




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



the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Register provided for in Section 2.05, as promptly as possible but in any
event at least 20 calendar days prior to the applicable date hereinafter specified, a notice
stating (x) the declaration date of the dividend or other distribution, (y) 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 (z) the date on which
such reclassification, share exchange, consolidation, merger, conveyance, transfer, sale, lease or
other disposition, 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.




          SECTION 10.07.   Shareholder Rights Plans. If the rights provided for in any rights
plan adopted by the Company have separated from Common Stock in accordance with the provisions of
such rights plan, the Conversion Rate will be adjusted as provided in Section 10.04(c).




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          SECTION 10.08.   Reserved.




          SECTION 10.09.   Responsibility of Trustee. The Trustee and any other Conversion
Agent shall not at any time be under any duty or responsibility to any Holder of Notes to determine
the Conversion Rate or whether any facts exist that may require any adjustment (including any
increase) 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 amount of the cash (or to the extent provided by
Section 10.04(f), the validity or value or the kind or amount of any assets, debt, securities or
rights, warrants or options that may at any time be issued or delivered upon the cash conversion of
any Note); and the Trustee and any other Conversion Agent make no representations with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to deliver cash (or to the extent provided by Section 10.04(f), transfer or deliver any
assets, debt or rights, warrants or options upon the surrender of any Note) for the purpose of cash
conversion or to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 10. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 10.05
relating either to the kind or amount of shares of stock or securities or property (including cash)
upon which the Cash Conversion Settlement Amount will be based after any event referred to in such
Section 10.05 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 9.01, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in conclusively 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. Neither the Trustee nor the Conversion Agent shall be responsible for
determining whether any event contemplated by Section 10.01 has occurred that makes the Notes
eligible for cash conversion or no longer eligible therefor until the Company has delivered to the
Trustee and the Conversion Agent the notices referred to in Section 10.01 with respect to the
commencement or termination of such cash conversion rights, on which notices the Trustee and the
Conversion Agent may conclusively rely, and the Company agrees to deliver such notices to the
Trustee and the Conversion Agent immediately after the occurrence of any such event or at such
other times as shall be provided for in Section 10.01.




ARTICLE 11




Miscellaneous




          SECTION 11.01.   Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the Trust Indenture Act, the required provision shall control.




          SECTION 11.02.   Notices. Any notice or communication shall be in writing (including
telecopy) and delivered in person or mailed by first-class mail addressed as follows:



 if to the Company:




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Covanta Holding Corporation

40 Lane Road

Fairfield, NJ 07004

Attention: President and Chief Executive Officer



if to the Trustee:



Wells Fargo Bank, National Association

45 Broadway, 14th Floor

New York, NY 10006

Attention: Corporate Trust Services




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




          Any notice or communication mailed to a Noteholder shall be mailed to the Noteholder at the
Noteholder’s address as it appears on the Register of the Registrar and shall be sufficiently given
if so mailed within the time prescribed.




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




          SECTION 11.03.   Communication by Noteholders with Other Noteholders. Noteholders may
communicate pursuant to Trust Indenture Act § 312(b) with other Noteholders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of Trust Indenture Act § 312(c).




          SECTION 11.04.   Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:




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




          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.




          SECTION 11.05.   Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a covenant or condition provided for in this Indenture
shall include:




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




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




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




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




          SECTION 11.06.   When Notes Disregarded. In determining whether the Noteholders of
the required principal amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Subject to the foregoing, only Notes
outstanding at the time shall be considered in any such determination.




          SECTION 11.07.   Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Noteholders. The Registrar and the Paying Agent may
make reasonable rules for their functions.




          SECTION 11.08.   Business Day. A “Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are
authorized or obligated by law or executive order to close or be closed.




          SECTION 11.09.   GOVERNING LAW, WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND
SERVICE. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED
HEREBY.




     To the fullest extent permitted by applicable law, the Company hereby irrevocably submits to
the jurisdiction of any federal or State court located in the Borough of Manhattan in The City of
New York, New York in any suit, action or proceeding based on or arising out of or relating to this
Indenture or any Notes and irrevocably agrees that all claims in respect of such suit or proceeding
may be determined in any such court. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may have to the laying of the venue of any such suit,
action or proceeding brought in an inconvenient forum. The Company agrees that final judgment in
any such suit, action or proceeding brought in such a court shall be conclusive and binding upon
the Company, and may be enforced in any courts to the jurisdiction of which the Company is subject
by a suit upon such judgment, provided, that service of process is



- 68 -









 




effected upon the Company in the manner specified herein or as otherwise permitted by law.
The Company hereby irrevocably designates and appoints Corporation Service Company (the “Process
Agent”) as its authorized agent for purposes of this section, it being understood that the
designation and appointment of the Process Agent as such authorized agent shall become effective
immediately without any further action on the part of the Company. The Company further agrees that
service of process upon the Process Agent and written notice of said service to the Company, mailed
by prepaid registered first class mail or delivered to the Process Agent at its principal office,
shall be deemed in every respect effective service of process upon the Company, in any such suit or
proceeding. The Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments as may be necessary, to continue such
designation and appointment of the Process Agent in full force and effect so long as the Company,
has any outstanding obligations under this Indenture. To the extent the Company has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Indenture to the extent permitted by law.




          SECTION 11.10.   No Recourse Against Others. A director, officer, employee,
incorporator, shareholder or partner, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a Note, each Noteholder shall
waive and release all such liability. The waiver and release shall be part of the consideration
for the issue of the Notes.




          SECTION 11.11.   Successors. All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its
successors.




          SECTION 11.12.   Multiple Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this
Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the
original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or
PDF shall be deemed to be their original signatures for all purposes.




          SECTION 11.13.   Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




          SECTION 11.14.   Severability Clause. In case any provision in this Indenture shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and such provision shall be
ineffective only to the extent of such invalidity, illegality or unenforceability.




- 69 -









 








          SECTION 11.15.   Calculations. Except as otherwise provided herein, the Company will
be responsible for making all calculations called for under the Notes. These calculations include,
but are not limited to, determinations of the Closing Sale Price of the Common Stock, the Trading
Price of the Notes, accrued interest payable on the Notes, the amount and timing of any adjustments
to the Conversion Rate and Conversion Price and the Cash Conversion Settlement Amount deliverable
upon cash conversion. The Company or its agents will make all these calculations in good faith and,
absent manifest error, such calculations will be final and binding on Holders. The Company will
provide a schedule of these calculations to each of the Trustee and the Conversion Agent, and each
of the Trustee and Conversion Agent is entitled to conclusively rely upon the accuracy of the
Company’s calculations without independent verification. The Trustee will forward these
calculations to any holder of the Notes upon the written request of that Holder.




          SECTION 11.16.   U.S.A. Patriot Act.




     The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act,
the Trustee, like all financial institutions and in order to help fight the funding of terrorism
and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may
request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.




- 70 -









 




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


	 	 	 	 	 
	 	COVANTA HOLDING CORPORATION,

as Issuer

 	 
	 	By:  	/s/ Mark Pytosh 	 
	 	 	Name: 	Mark Pytosh 	 
	 	 	Title: 	Executive Vice President and Chief Financial Officer 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	/s/ Raymond Delli Colli 	 
	 	 	Name: 	Raymond Delli Colli 	 
	 	 	Title: 	Vice President 	 
	 



- 71 -








 





EXHIBIT A




[FORM OF FACE OF NOTE]




[Global Note Legend]




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



     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.



[Restricted Note Legend]




     THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, UNTIL SUCH TIME AS COVANTA HOLDING CORPORATION
(THE “COMPANY”) HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND NO LONGER APPLIES, THIS NOTE MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER THE LAST DATE OF ORIGINAL
ISSUANCE OF NOTES (INCLUDING THROUGH THE EXERCISE OF THE OVER-ALLOTMENT OPTION PURSUANT TO THE
PURCHASE AGREEMENT DATED AS OF MAY 18, 2009, AMONG THE COMPANY AND THE INITIAL PURCHASERS SPECIFIED
THEREIN) AND (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY, OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTES EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN



A-1









 




COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF
THIS NOTE WITHIN THE LATER OF (X) SIX MONTHS (OR, IF THE COMPANY HAS NOT SATISFIED THE CURRENT
PUBLIC INFORMATION REQUIREMENTS OF RULE 144, ONE YEAR) AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF
NOTES (INCLUDING THROUGH THE EXERCISE OF THE OVER-ALLOTMENT OPTION) AND (Y) 90 DAYS AFTER IT CEASES
TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT) OF THE
COMPANY, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THEY MAY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER THAN IN
CONFORMITY WITH RULE 144 BEFORE ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES
(INCLUDING THROUGH THE EXERCISE OF THE OVER-ALLOTMENT OPTION).




A-2









 





No.                    




3.25% Cash Convertible Senior Note due 2014




CUSIP No.: 22282E AB8


ISIN No.: US22282EAB83




     COVANTA HOLDING CORPORATION, a Delaware corporation, promises to pay to [Cede &
Co.]1, or registered assigns, the principal sum of [                    ] Million Dollars ($                    )
[or such lesser amount as is indicated in the records of the Trustee and DTC]2, on June
1, 2014, and to pay interest thereon from May 22, 2009, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on June 1 and December 1
of each year, commencing December 1, 2009, at the rate of 3.25% per annum, until the principal
hereof is paid or made available for payment or cash converted. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is
registered at 5:00 p.m., New York City time, on the Regular Record Date for such interest, which
shall be May 15 or November 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is registered at 5:00 p.m.,
New York City time, on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Notes not more than fifteen calendar
days and not less than ten calendar days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture (as defined on the reverse hereof).



     Interest on the Notes for a Full Interest Period will be calculated on the basis of a 360 day
period consisting of twelve 30 day months. Interest on the Notes for a period other than a Full
Interest Period will be calculated on the basis of the actual number of days elapsed during the
period and a 365 day year. If a payment date is not a Business Day, payment will be made on the
next succeeding Business Day, and no additional interest will accrue in respect of such payment by
virtue of the payment being made on such later date.



     Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



     This Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be governed by and construed in accordance with the laws of said State.





 




			
	1	 	Use bracketed language only if Global Note.
	 
	2	 	Use bracketed language only if Global Note.




A-3









 










     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.



A-4









 





Dated:




	 	 	 	 	 
	 	COVANTA HOLDING CORPORATION,

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TRUSTEE’S CERTIFICATE OF

     AUTHENTICATION




WELLS FARGO BANK, NATIONAL ASSOCIATION,

           as Trustee, certifies that this is one of the

           Notes referred to in the Indenture.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-5









 






[FORM OF REVERSE SIDE OF NOTE]




3.25% Cash Convertible Senior Note due 2014




     COVANTA HOLDING CORPORATION, a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”), issued
this Note under an Indenture dated as of May 22, 2009, (as it may be amended or supplemented from
time to time in accordance with the terms thereof, the “Indenture”), between the Company and Wells
Fargo Bank, National Association, as Trustee, to which reference is hereby made for a statement of
the respective rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders and of the terms upon which the Notes are, and are to be, authorized and delivered.
Except as specifically provided in Section 1(a) hereof, all terms used in this Note which are
defined in the Indenture shall have the meaning assigned to them in the Indenture.



1. Further Provisions Relating to Interest




     (a) Additional Interest. Subject to Section 6.03(d) of the Indenture, if, at any time
during the six-month period beginning on, and including, the date which is six months after the
last date of the original issuance of the Notes and ending on, and including, the 365th day after
the last date of the original issuance of the Notes offered hereby, the Company fails to timely
file any document or report that the Company is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
pursuant to Rule 12b-25 thereunder and other than current reports on Form 8-K), or the Notes are
not otherwise freely tradable by Holders other than the Company’s Affiliates (as a result of
restrictions pursuant to U.S. securities law or the terms of the Indenture or the Notes), the
Company shall pay Additional Interest on the Notes which shall accrue on the Notes at a rate of
0.25% per annum of the principal amount of Notes outstanding for each day during such period for
which the Company’s failure to file, or the failure of the Notes to be freely tradable by Holders
other than the Company’s Affiliates, as described above, has occurred and is continuing, which rate
shall be increased by an additional 0.25% per annum following the 90th day on which such Additional
Interest has accrued, provided that the rate at which such Additional Interest accrues may in no
event exceed 0.50% per annum; and provided further that the Company shall have 14 calendar days, in
the aggregate, to cure any such late filings or failures of the Notes to be freely tradable before
any such Additional Interest shall accrue. Subject to Section 6.03(d) of the Indenture, if, and for
so long as the Notes are not freely tradable by Holders other than the Company’s Affiliates as of
the 366th day after the last date of the original issuance of the Notes, the Company shall pay
Additional Interest on the Notes which shall accrue on the Notes at a rate of 0.25% per annum of
the principal amount of Notes outstanding for each day after the 3656h day after the last date of
the original issuance of the Notes until the Notes are freely tradable by Holders other than the
Company’s Affiliates, which rate shall be increased by an additional 0.25% per annum following the
90th day on which such Additional Interest has accrued, provided that the rate at which such
Additional Interest under Section 6.03(b) of the Indenture accrues may in no event exceed 0.50% per
annum.



     (b) In the event of the Company’s failure to perform or observe the covenant in Section
4.03(a) of the Indenture, the Company will pay additional interest (the “Reporting



A-1









 




Additional Interest”) on the Notes at an annual rate equal to 0.50% of the principal amount of
the Notes for the 364 days after the occurrence of such an Event of Default. Reporting Additional
Interest will be payable in the same manner and on the same Interest Payment Dates as the stated
interest payable on the Notes. Reporting Additional Interest will accrue on all outstanding Notes
from, and including, the date on which an Event of Default relating to a failure by the Company to
comply with its obligations pursuant to Section 4.03(a) of the Indenture first occurs to, but not
including, the 365th day thereafter (or such earlier date on which the Event of Default
relating to the Company’s obligations pursuant to Section 4.03(a) of the Indenture shall have been
cured or waived). On such 365th day (or earlier, if an Event of Default relating to the
Company’s obligations pursuant to Section 4.03(a) of the Indenture is cured or waived prior to such
365th day), such Reporting Additional Interest will cease to accrue and the Notes will
be subject to acceleration as provided in Section 6.02 of the Indenture if such Event of Default is
continuing. For the avoidance of doubt, in the event Additional Interest is also triggered under
Section 6.03 of the Indenture, the interest rate applicable to the Notes under such section shall
apply to the Notes under Section 6.13 of the Indenture and shall constitute the exclusive rate of
additional interest applicable to the Notes under such circumstances.




     (c) Except as otherwise specifically set forth, all references herein to “interest” include
Defaulted Interest, if any, Additional Interest, if any, and Reporting Additional Interest, if any.



     (d) The Company shall pay interest (to the extent lawful) on overdue principal, Fundamental
Change Repurchase Price or interest at the rate per annum borne by the Notes plus 1%.



1. Method of Payment




     The Company will pay interest on the Notes (except Defaulted Interest) to the Persons who are
registered Holders of Notes at 5:00 p.m., New York City time, on the May 15 and November 15 next
preceding the Interest Payment Date even if Notes are canceled after the record date and on or
before the Interest Payment Date, except as otherwise provided in the Indenture. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal
and interest in money of the United States of America that at the time of payment is legal tender
for payment of public and private debts.



     The Company shall pay interest on:



     (i) any Global Notes by wire transfer of immediately available funds to the account of the
Depositary or its nominee;



     (ii) any Notes in certificated form having a principal amount of less than $5,000,000, by
check mailed to the address of the Person entitled thereto as it appears in the Register,
provided, however, that the interest payable on the Maturity Date will be paid to
the Person to whom the principal amount is paid; and



     (iii) any Notes in certificated form having a principal amount of $5,000,000 or more, by wire
transfer in immediately available funds at the election of the Holder of such Notes duly delivered
to the trustee at least five Business Days prior to the relevant Interest Payment



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Date, provided, however, that the interest payable on the Maturity Date will
be paid to the Person to whom the principal amount is paid.




2. Paying Agent, Registrar, Conversion Agent and Bid Solicitation Agent




     Initially, Wells Fargo Bank, National Association, a national banking association organized
under the laws of the United States (the “Trustee”), will act as Paying Agent, Registrar,
Conversion Agent and Bid Solicitation Agent. The Company may appoint and change any Paying Agent,
Registrar or co-registrar, Conversion Agent or Bid Solicitation Agent without notice. The Company
or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent,
Registrar or co-registrar.



3. Sinking Fund




     The Notes are not subject to any sinking fund.



4. Repurchase of Notes at the Option of Noteholders Upon a Fundamental Change 




     Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Notes or any portion thereof (in
principal amounts of $1,000 or multiples thereof) on the Fundamental Change Repurchase Date at a
price equal to 100% of the principal amount of the Notes such Holder elects to require the Company
to repurchase, together with accrued and unpaid interest to, but excluding, the Fundamental Change
Repurchase Date. The Company or, at the written request of the Company, the Trustee shall mail to
all holders of record of the Notes a notice of the occurrence of a Fundamental Change and of the
repurchase right arising as a result thereof on or before the fifth (5th) calendar day
after the occurrence of such Fundamental Change.



5. Cash Conversion




     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture and
prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Maturity
Date, to cash convert any Notes or portion thereof that is $1,000 or multiples thereof at a
Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture, upon surrender of this Note, together with a Cash Conversion Notice as provided in the
Indenture and this Note, to the Company at the office or agency of the Company maintained for that
purpose in New York City. Upon cash conversion, the Company shall satisfy its Cash Conversion
Obligation in cash. Subject to the limited exception described in the Indenture, the Company will
not deliver Common Stock (or any other securities) upon conversion of this Note under any
circumstances. The initial Conversion Rate shall be 53.9185 shares of Common Stock for each $1,000
principal amount of Notes.



6. Denominations, Transfer, Exchange




     The Notes are in registered form without coupons in denominations of $1,000 and whole
multiples of $1,000. A Noteholder may transfer or exchange Notes in accordance with the



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Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a
Noteholder, among other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture.




7. Persons Deemed Owners




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



8. Unclaimed Money




     Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any money held by them for the payment of principal or interest
and any cash (or other property) due in respect of cash converted Notes that remains unclaimed for
two years, and, thereafter, Noteholders entitled to the money and/or securities must look to the
Company for payment as general creditors.



9. Amendment, Waiver




     Subject to certain exceptions, the Indenture contains provisions permitting an amendment of
the Indenture or the Notes with the written consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and the waiver of any Event of Default
(other than with respect to nonpayment, or failure to satisfy the Cash Conversion Obligation or in
respect of a provision that cannot be amended without the written consent of each Holder affected)
or noncompliance with any provision with the written consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes.



     In addition, the Indenture permits an amendment of the Indenture or the Notes without the
consent of any Holder under circumstances specified in the Indenture. The Indenture also permits
an amendment of the Indenture or the Notes only with the consent of any Holder affected thereby
under circumstances specified in the Indenture.



10. Defaults and Remedies




     Except as specified in the Indenture, if an Event of Default occurs (other than an Event of
Default relating to certain events of bankruptcy, insolvency or reorganization of the Company) and
is continuing, the Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes may declare the principal of and accrued but unpaid interest on all the Notes to be due and
payable. If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the Notes will become
immediately due and payable without any declaration or other act on the part of the Trustee or any
Noteholders. Under certain circumstances, the holders of a majority in principal amount of the
outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.



     If an Event of Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under the Indenture at the request or direction of any of the
Noteholders unless such Noteholders have offered to the Trustee indemnity or



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security satisfactory to it against any loss, liability or expense. Subject to certain
exceptions, no Noteholder may pursue any remedy with respect to the Indenture or the Notes unless
(i) such Noteholder has previously given to the Trustee written notice stating that an Event of
Default is continuing; (ii) Holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue the remedy and offer to the
Trustee reasonable security or indemnity against any costs, liability or expense of the Trustee;
(iii) the Trustee does not comply with the request within 60 calendar days after receipt of the
request and the offer of security or indemnity; and (iv) the Trustee does not receive an
inconsistent direction from Holders of a majority in aggregate principal amount of the Notes during
such 60 day period. Subject to certain restrictions, the Holders of a majority in principal amount
of the outstanding Notes are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or
the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other
Noteholder or that would involve the Trustee in personal liability or expense for which the Trustee
has not received adequate indemnity as determined by it in good faith. Prior to taking any action
under the Indenture, the Trustee will be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such action.




     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
impair, as among the Company and the holder of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note or the Cash
Conversion Settlement Amount upon cash conversion of this Note, at the place, at the respective
times, at the rate and in the coin or currency herein and in the Indenture prescribed.



11. Trustee Dealings with the Company




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



12. No Recourse Against Others




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



13. Authentication




     This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Note.



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14. Abbreviations




     Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights
of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).



15. GOVERNING LAW




     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.



16. CUSIP and ISIN Numbers




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



     The Company will furnish to any holder of Notes upon written request and without charge to the
holder a copy of the Indenture which has in it the text of this Note.




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CASH CONVERSION NOTICE





			
	TO:	 	COVANTA HOLDING CORPORATION

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee





          The undersigned registered owner of this Note hereby irrevocably exercises the option to cash
convert this Note, 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 Note, and directs that cash
payable upon such cash conversion and any Notes 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 any portion of this Note not converted is 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 Note.




Dated:                                         




	 	 	 
	 

	 	 

	 
	 	 
	 

	 	 

Signature(s)
	 
	 	 
	 

	 	Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the 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
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
	 
	 	 
	 
	 

	 	 

Signature Guarantee






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          Fill in the registration of Notes if to be delivered, and the person to whom cash is to be
made, if to be made, other than to and in the name of the registered holder:




Please print name and address




	 	 	 	 	 
	 	 	 
	(Name)	 	 
	 
	 	 	 	 
	 	 	 
	(Street Address)	 	 
	 
	 	 	 	 
	 	 	 
	(City, State and Zip Code)	 	 
	 
	 	 	 	 
	Principal amount to be converted	 	 
	(if less than all):	 	 
	 
	 	 	 	 
	$
	 	 	 	 
	 

	 	 

	 	 
	Social Security or Other Taxpayer

	 
	Identification Number:

	 
	 
	 	 	 	 
	 	 	 




NOTICE: The signature on this Cash Conversion Notice must correspond with the name as written upon
the face of the Notes in every particular without alteration or enlargement or any change whatever.




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FUNDAMENTAL CHANGE REPURCHASE NOTICE





			
	TO:	 	COVANTA HOLDING CORPORATION

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee





          The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from Covanta Holding Corporation (the “Company”) regarding the right of holders to elect to
require the Company to repurchase the Notes and requests and instructs the Company to repay the
entire principal amount of this Note, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the Indenture at the price of
100% of such entire principal amount or portion thereof, together with accrued and unpaid interest
to, but excluding, the Fundamental Change 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. The Notes shall be repurchased by the Company as of the Fundamental Change Repurchase
Date pursuant to the terms and conditions specified in the Indenture.




Dated:                                         




	 	 	 	 	 	 	 
	 

	 	Signature(s):	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

	 	 






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



     Notes Certificate Number (if applicable):                                                             



     Principal amount to be repurchased (if less than all, must be $1,000 or whole multiples
thereof):                                         



     Social Security or Other Taxpayer Identification Number:                     



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ASSIGNMENT




          For value received                                                              hereby sell(s) assign(s) and
transfer(s) unto                                                              (Please insert social security or other
Taxpayer Identification Number of assignee) the within Notes, and hereby irrevocably constitutes
and appoints                                                              attorney to transfer said Notes on the books of
the Company, with full power of substitution in the premises.




          In connection with any transfer of the Notes prior to the first anniversary of the last date
of the original issuance of the Notes, the undersigned confirms that such Notes are being
transferred:





	 	o	 	To Covanta Holding Corporation or a subsidiary thereof; or
	 
	 	o	 	To a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
	 
	 	o	 	Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or
	 
	 	o	 	Pursuant to a Registration Statement which has been declared effective under the
Securities Act of 1933, as amended, and which continues to be effective at the time
of transfer;




and unless the Notes has been transferred to Covanta Holding Corporation or a subsidiary thereof,
the undersigned confirms that such Notes are not being transferred to an “affiliate” of the Company
as defined in Rule 144 under the Securities Act of 1933, as amended.



Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered holder thereof.




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Dated:                                         




	 	 	 
	 

	 	 

	 
	 	 
	 

	 	 

Signature(s)
	 
	 	 
	 

	 	Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the 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
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
	 
	 	 
	 
	 

	 	 

Signature Guarantee





NOTICE: The signature on this Assignment must correspond with the name as written upon the face of
the Notes in every particular without alteration or enlargement or any change whatever.





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