Exhibit 4.1


 


Execution
Copy


 




 





SEACOR
HOLDINGS INC.,


 


as
Issuer


 










 


U.S.
BANK NATIONAL ASSOCIATION,


 


as
Trustee


 










 


$250,000,000
AGGREGATE PRINCIPAL AMOUNT OF



2.875% CONVERTIBLE SENIOR DEBENTURES DUE DECEMBER 15, 2024


 










 


INDENTURE


 










 


DATED
AS OF DECEMBER 17, 2004




 





 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Definitions

  	
   

  
	
  Section 1.2

  	
   

  	
  Other Definitions.

  	
   

  
	
  Section 1.3

  	
   

  	
  Trust Indenture Act Provisions

  	
   

  
	
  Section 1.4

  	
   

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 2

  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  Form and Dating

  	
   

  
	
  Section 2.2

  	
   

  	
  Execution and Authentication

  	
   

  
	
  Section 2.3

  	
   

  	
  Registrar, Paying Agent and Conversion
  Agent and Bid Solicitation Agent

  	
   

  
	
  Section 2.4

  	
   

  	
  Paying Agent to Hold Money and Securities
  in Trust

  	
   

  
	
  Section 2.5

  	
   

  	
  Securityholder Lists

  	
   

  
	
  Section 2.6

  	
   

  	
  Transfer and Exchange

  	
   

  
	
  Section 2.7

  	
   

  	
  Replacement Securities

  	
   

  
	
  Section 2.8

  	
   

  	
  Outstanding Securities

  	
   

  
	
  Section 2.9

  	
   

  	
  Treasury Securities

  	
   

  
	
  Section 2.10

  	
   

  	
  Temporary Securities

  	
   

  
	
  Section 2.11

  	
   

  	
  Cancellation

  	
   

  
	
  Section 2.12

  	
   

  	
  Legend; Additional Transfer and Exchange
  Requirements

  	
   

  
	
  Section 2.13

  	
   

  	
  CUSIP Numbers

  	
   

  
	
  Section 2.14

  	
   

  	
  Ranking

  	
   

  
	
  Section 2.15

  	
   

  	
  Persons Deemed Owners

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 3

  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  The Company’s Right to Redeem; Notice to
  Trustee

  	
   

  
	
  Section 3.2

  	
   

  	
  Selection of Securities to be Redeemed

  	
   

  
	
  Section 3.3

  	
   

  	
  Notice of Redemption

  	
   

  
	
  Section 3.4

  	
   

  	
  Effect of Notice of Redemption

  	
   

  
	
  Section 3.5

  	
   

  	
  Deposit of Redemption Price

  	
   

  
	
  Section 3.6

  	
   

  	
  Securities Redeemed in Part

  	
   

  
	
  Section 3.7

  	
   

  	
  Repayment to the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 4

  OPTIONAL PUT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Optional Put

  	
   

  
	
  Section 4.2

  	
   

  	
  Effect of Purchase Notice

  	
   

  
	
  Section 4.3

  	
   

  	
  Deposit of Purchase Price

  	
   

  
	
  Section 4.4

  	
   

  	
  Securities Purchased in Part

  	
   

  



 


i





















 


	
  Section 4.5

  	
   

  	
  Repayment to the Company

  	
   

  
	
  Section 4.6

  	
   

  	
  Compliance with Securities Laws Upon
  Purchase of Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 5

  PUT OPTION UPON FUNDAMENTAL CHANGE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Purchase of Securities at Option of the
  Holder upon a Fundamental Change

  	
   

  
	
  Section 5.2

  	
   

  	
  Effect of Fundamental Change Purchase
  Notice

  	
   

  
	
  Section 5.3

  	
   

  	
  Deposit of Fundamental Change Purchase
  Price

  	
   

  
	
  Section 5.4

  	
   

  	
  Securities Purchased in Part

  	
   

  
	
  Section 5.5

  	
   

  	
  Repayment to the Company

  	
   

  
	
  Section 5.6

  	
   

  	
  Compliance with Securities Laws upon
  Purchase of Securities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 6

  MAKE-WHOLE PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Make-Whole Premium

  	
   

  
	
  Section 6.2

  	
   

  	
  Adjustments Relating to Make-Whole Premium

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 7

  CONVERSION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Conversion Privilege

  	
   

  
	
  Section 7.2

  	
   

  	
  Conversion Procedure

  	
   

  
	
  Section 7.3

  	
   

  	
  Fractional Shares

  	
   

  
	
  Section 7.4

  	
   

  	
  Taxes on Conversion

  	
   

  
	
  Section 7.5

  	
   

  	
  Company to Provide Stock

  	
   

  
	
  Section 7.6

  	
   

  	
  Adjustment of Conversion Price

  	
   

  
	
  Section 7.7

  	
   

  	
  No Adjustment

  	
   

  
	
  Section 7.8

  	
   

  	
  Adjustment for Tax Purposes

  	
   

  
	
  Section 7.9

  	
   

  	
  Notice of Adjustment

  	
   

  
	
  Section 7.10

  	
   

  	
  Notice of Certain Transactions

  	
   

  
	
  Section 7.11

  	
   

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

  	
   

  
	
  Section 7.12

  	
   

  	
  Trustee’s Disclaimer

  	
   

  
	
  Section 7.13

  	
   

  	
  [Reserved]

  	
   

  
	
  Section 7.14

  	
   

  	
  Option to Satisfy Conversion Obligation
  with Cash, Common Stock or Combination Thereof

  	
   

  
	
  Section 7.15

  	
   

  	
  Effect of Conversion; Conversion After
  Record Date

  	
   

  
	
  Section 7.16

  	
   

  	
  Limitations on Foreign Ownership of Capital
  Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 8

  CONTINGENT INTEREST

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Contingent Interest

  	
   

  
	
  Section 8.2

  	
   

  	
  Payment of Contingent Interest; Contingent
  Interest Rights Preserved

  	
   

  



 


ii





















 


	
   

  	
   

  	
  ARTICLE 9

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1

  	
   

  	
  Payment of Securities

  	
   

  
	
  Section 9.2

  	
   

  	
  Reports and Certain Information

  	
   

  
	
  Section 9.3

  	
   

  	
  Compliance Certificates

  	
   

  
	
  Section 9.4

  	
   

  	
  Maintenance of Corporate Existence

  	
   

  
	
  Section 9.5

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  
	
  Section 9.6

  	
   

  	
  Maintenance of Office or Agency of the
  Trustee, Registrar, Paying Agent and Conversion Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 10

  CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1

  	
   

  	
  Company May Consolidate, Etc., Only on
  Certain Terms

  	
   

  
	
  Section 10.2

  	
   

  	
  Successor Substituted

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 11

  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.1

  	
   

  	
  Events of Default

  	
   

  
	
  Section 11.2

  	
   

  	
  Acceleration

  	
   

  
	
  Section 11.3

  	
   

  	
  Other Remedies

  	
   

  
	
  Section 11.4

  	
   

  	
  Waiver of Defaults and Events of Default

  	
   

  
	
  Section 11.5

  	
   

  	
  Control by Majority

  	
   

  
	
  Section 11.6

  	
   

  	
  Limitations on Suits

  	
   

  
	
  Section 11.7

  	
   

  	
  Rights of Holders to Receive Payment and to
  Convert

  	
   

  
	
  Section 11.8

  	
   

  	
  Collection Suit by Trustee

  	
   

  
	
  Section 11.9

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 11.10

  	
   

  	
  Priorities

  	
   

  
	
  Section 11.11

  	
   

  	
  Undertaking for Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 12

  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.1

  	
   

  	
  Certain Duties and Responsibilities of
  Trustee

  	
   

  
	
  Section 12.2

  	
   

  	
  Certain Rights of Trustee

  	
   

  
	
  Section 12.3

  	
   

  	
  Trustee Not Responsible for Recitals or
  Issuance or Securities

  	
   

  
	
  Section 12.4

  	
   

  	
  May Hold Securities

  	
   

  
	
  Section 12.5

  	
   

  	
  Moneys Held in Trust

  	
   

  
	
  Section 12.6

  	
   

  	
  Compensation and Reimbursement

  	
   

  
	
  Section 12.7

  	
   

  	
  Reliance on Officer’s Certificate

  	
   

  
	
  Section 12.8

  	
   

  	
  Disqualification; Conflicting Interests

  	
   

  
	
  Section 12.9

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  
	
  Section 12.10

  	
   

  	
  Resignation and Removal; Appointment of
  Successor

  	
   

  
	
  Section 12.11

  	
   

  	
  Acceptance of Appointment By Successor

  	
   

  
	
  Section 12.12

  	
   

  	
  Merger, Conversion, Consolidation or
  Succession to Business

  	
   

  



 


iii





















 


	
  Section 12.13

  	
   

  	
  Preferential Collection of Claims Against
  the Company

  	
   

  
	
  Section 12.14

  	
   

  	
  Notice of Defaults

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 13

  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 13.1

  	
   

  	
  Without Consent of Holders

  	
   

  
	
  Section 13.2

  	
   

  	
  With Consent of Holders

  	
   

  
	
  Section 13.3

  	
   

  	
  Compliance with Trust Indenture Act

  	
   

  
	
  Section 13.4

  	
   

  	
  Revocation and Effect of Consents

  	
   

  
	
  Section 13.5

  	
   

  	
  Notation on or Exchange of Securities

  	
   

  
	
  Section 13.6

  	
   

  	
  Trustee to Sign Amendments, Etc.

  	
   

  
	
  Section 13.7

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 14

  TAX TREATMENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 15

  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 15.1

  	
   

  	
  Satisfaction and Discharge of the Indenture

  	
   

  
	
  Section 15.2

  	
   

  	
  Repayment to the Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 16

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 16.1

  	
   

  	
  Trust Indenture Act Controls

  	
   

  
	
  Section 16.2

  	
   

  	
  Notices

  	
   

  
	
  Section 16.3

  	
   

  	
  Communications by Holders with Other
  Holders

  	
   

  
	
  Section 16.4

  	
   

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  Section 16.5

  	
   

  	
  Record Date for Vote or Consent of
  Securityholders

  	
   

  
	
  Section 16.6

  	
   

  	
  Rules by Trustee, Paying Agent, Registrar
  and Conversion Agent

  	
   

  
	
  Section 16.7

  	
   

  	
  Legal Holidays

  	
   

  
	
  Section 16.8

  	
   

  	
  Governing Law

  	
   

  
	
  Section 16.9

  	
   

  	
  No Adverse Interpretation of Other
  Agreements

  	
   

  
	
  Section 16.10

  	
   

  	
  No Recourse Against Others

  	
   

  
	
  Section 16.11

  	
   

  	
  Successors

  	
   

  
	
  Section 16.12

  	
   

  	
  Multiple Counterparts

  	
   

  
	
  Section 16.13

  	
   

  	
  Separability

  	
   

  
	
  Section 16.14

  	
   

  	
  Table of Contents, Headings, Etc.

  	
   

  



 


iv





















 


CROSS-REFERENCE TABLE*


 


	
  TIA INDENTURE SECTION

  	
   

  	
  SECTION

  
	
  Section
  310(a)(1)

  	
   

  	
  12.10

  
	
  (a)(2)

  	
   

  	
  12.10

  
	
  (a)(3)

  	
   

  	
  N.A.**

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  12.10

  
	
  (b)

  	
   

  	
  11.8; 11.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  Section
  311(a)

  	
   

  	
  12.11

  
	
  (b)

  	
   

  	
  12.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  Section
  312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  16.3

  
	
  (c)

  	
   

  	
  16.3

  
	
  Section
  313(a)

  	
   

  	
  13

  
	
  (b)(1)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  13

  
	
  (c)

  	
   

  	
  12.1;
  16.2

  
	
  (d)

  	
   

  	
  12.6

  
	
  Section
  314(a)

  	
   

  	
  9.2;
  9.3; 2.2

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  16.4(a)

  
	
  (c)(2)

  	
   

  	
  16.4(a)

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  16.4(b)

  
	
  (f)

  	
   

  	
  N.A.

  
	
  Section
  315(a)

  	
   

  	
  12.1(b)

  
	
  (b)

  	
   

  	
  12.5; 13.2

  
	
  (c)

  	
   

  	
  12.1(a)

  
	
  (d)

  	
   

  	
  12.2(c)

  
	
  (e)

  	
   

  	
  11.11

  
	
  Section
  316(a)(last sentence)

  	
   

  	
  2.10

  
	
  (a)(1)(A)

  	
   

  	
  11.5

  
	
  (a)(1)(B)

  	
   

  	
  11.4

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  11.7

  
	
  (c)

  	
   

  	
  16.5

  
	
  Section
  317(a)(1)

  	
   

  	
  11.8

  
	
  (a)(2)

  	
   

  	
  11.9

  
	
  (b)

  	
   

  	
  2.4

  



 










* Cross-Reference Table
shall not, for any purpose, be deemed a part of this Indenture.


** N.A. means Not
Applicable.


 


v





















 


THIS INDENTURE, dated as of December 17, 2004, is
between SEACOR Holdings Inc., a Delaware corporation (the “Company”), and U.S. Bank National
Association, a national banking association, as trustee (the “Trustee”).


 


In consideration of the premises and the purchase of
the Securities by the Holders thereof, the parties hereto agree as follows for
the benefit of the others and for the equal and ratable benefit of the Holders
of the Securities.


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1             Definitions


 


“Additional Interest”
has the meaning set forth in Section 5(a) of the Registration Rights
Agreement.  Unless the context otherwise
requires, all references herein or in the Securities to “interest” accrued or
payable as of any date shall include, without duplication, any Additional
Interest accrued or payable as of such date as provided in the Registration
Rights Agreement.


 


“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 purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.


 


“Agent”
means any Registrar, Paying Agent, Bid Solicitation Agent or Conversion Agent.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of
beneficial ownership interests in a Global Security, the rules and procedures
of the Depositary, in each case to the extent applicable to such transfer or
exchange.


 


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


 


“Business Day”
means each day that is not a Legal Holiday.


 


“Calculation Agent” means the calculation agent from time to
time appointed by the Company pursuant to Section 6.1(e).


 


“cash”
means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.


 


“Certificated
Security” means a Security that is in substantially the form
attached hereto as Exhibit A and that
does not include the information or the schedule called for by footnotes 1 and
3 thereof.


 


[Signature Page to Indenture]


 





















 


“Closing Sale Price”
of the Common Stock on any Trading Day means the closing sale price per share
(or if no closing sale price is reported, the average of the bid and ask prices
or, if there is more than one bid or ask price, the average of the average bid
and the average ask prices) on such Trading Day as reported in composite
transactions for the New
York Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, on the principal other national or regional securities
exchange on which the Common Stock is then listed or, if the Common Stock is
not listed on a national or regional securities exchange, as reported by the
National Association of Securities Dealers Automated Quotation system (“Nasdaq”)
or, if the Common Stock is not quoted on Nasdaq, on the principal other market
on which such Common Stock is then traded.


 


“Common Stock”
means any stock of any
class of the Company which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which is not subject to redemption
by the Company.  Subject to the
provisions of Section 7.11, however, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of
the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


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


 


“Contingent Interest”
means all amounts to be paid pursuant to Article 8.  All references herein or in the Securities to
interest accrued or payable as of any date shall include, without duplication,
any Contingent Interest, if any, accrued or payable as of such date.


 


“Conversion Price” means initially $73.15 per share of Common
Stock, subject to adjustment as set forth herein.


 


“Conversion Rate”
means initially 13.6705 shares of Common Stock per $1,000 principal amount of
Securities, subject to adjustment as set forth herein.  At any time, the Conversion Rate shall be
$1,000 divided by the Conversion Price in effect at such time rounded to four
decimal places (rounded up if the fifth decimal place thereof is 5 or more and
otherwise rounded down).


 


“Corporate Trust
Office” means the office of the Trustee at which at any time the
trust created by this Indenture shall be administered, which office at the date
of the execution of this Indenture is located at U.S. Bank National
Association, Corporate Trust Services, 60 Livingston Avenue, St Paul, Minnesota
55107, except that whenever a provision herein refers to an office or agency of
the Trustee in the Borough of Manhattan, The City of New York, such office is
located, at the date hereof, at 100 Wall Street, New York, New York 10005.


 


2





















 


“Debenture Price”
means, for any Security
on the Determination Date, the average of the secondary market bid quotations
per $1,000 principal amount of Securities obtained by the Bid Solicitation
Agent for $10,000,000 principal amount of Securities at approximately 4:00
p.m., New York City time, on such Determination Date from three unaffiliated
securities dealers selected by the Company as securities dealers it believes to
be willing to bid for the Securities; provided,
however, that if at least three such bids are not obtained by the
Bid Solicitation Agent, or if, in the reasonable judgment of the Company, the
bid quotations are not indicative of the secondary market value of the
Securities, then the Trading Price shall equal the then applicable Conversion
Rate multiplied by the average Closing Sale Price of the Common Stock on the
five Trading Days ending on such Determination Date.


 


“Default”
or “default” means, when used with
respect to the Securities, any event which is or, after notice or passage of
time or both, would be an Event of Default.


 


“Domestic Share Certificate” means a certificate
evidencing ownership of shares of Common Stock, which certificate can only be
held by non-Foreigners.


 


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


 


“Final Maturity Date”
means December 15, 2024.


 


“Foreigner” means (i) any foreign government or the
representative thereof; (ii) any corporation of which its president, chief
executive officer (or equivalent position) or chairman of the board of
directors, or person authorized to act in the absence or disability of any of
them, is a Foreigner, or of which more than a minority of its directors
necessary to constitute a quorum are Foreigners; (iii) any corporation,
partnership or association which is not organized under the laws of the United
States or a state, territory, district or possession thereof; (iv) any
corporation of which a twenty-five percent (25%) or greater interest is owned
beneficially or of record by, or may be voted by, Persons who are Foreigners,
or which by any other means whatsoever is controlled by or in which control is
permitted to be exercised by Persons who are Foreigners; (v) any partnership
one or more of the general partners of which are Foreigners, or any partnership
or association of which a twenty five percent (25%) or greater interest is
owned beneficially or of record by Foreigners or which by any other means is
controlled by or in which control is permitted to be exercised by Persons who
are Foreigners; (vi) any other Person not a citizen of the United States as
defined under the applicable U.S. maritime laws; or (vii) any Person who acts
as a representative or fiduciary for a Person described in clauses (i) through
(vi) above.


 


“Foreign Share Certificate” means a certificate
evidencing ownership of shares of Common Stock, which certificate can be held
by a Foreigner or a non-Foreigner.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are in effect from time to time and consistently applied.


 


3





















 


“Global Security”
means a permanent Global Security that is in substantially the form attached
hereto as Exhibit A and that includes
the information and schedule called for by footnotes 1 and 3 thereof and which
is deposited with the Depositary or its custodian and registered in the name of
the Depositary or its nominee.


 


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


 


“Indebtedness”
means, with respect to any person, any indebtedness of such person, whether or
not contingent:


 


(a)           in
respect of borrowed money;


 


(b)           evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);


 


(c)           in
respect of banker’s acceptances;


 


(d)           in
respect of leases of such person required, in conformity with GAAP, to be
accounted for as capitalized lease obligations on the balance sheet of such
person;


 


(e)           representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable; or


 


(f)            representing
any obligations of such person under interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and other agreements
or arrangements designed to protect such person against fluctuations in
interest rates (collectively, “Hedging Obligations”),


 


if and to the extent any
of the preceding items (other than letters of credit and Hedging Obligations)
would appear as a liability upon a balance sheet of the specified person
prepared in accordance with GAAP.  In
addition, the term “Indebtedness” includes all Indebtedness of others secured
by a lien on any asset of the specified person (whether or not such
Indebtedness is assumed by the specified person) and, to the extent not
otherwise included, the guarantee by the specified person of any indebtedness
of any other person.


 


“Indenture”
means this Indenture as amended or supplemented from time to time pursuant to
the terms of this Indenture, including the provisions of the TIA that are
explicitly incorporated in this Indenture by reference to the TIA.


 


“Initial Purchaser”
means Credit Suisse First Boston LLC.


 


“Interest Payment
Date” has the meaning
set forth in the Securities.


 


“Interest Payment
Record Date” has the meaning set forth in the Securities.


 


4





















 


“Offering Circular”
means the Confidential Offering Circular dated December 8, 2004, relating to
the Securities.


 


“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, Assistant Secretary or any Vice President of such Person.


 


“Officer’s
Certificate” means a certificate signed by at least one Officer of
the Company; provided,
however, that for purposes of Sections 7.11 and 9.3, “Officer’s
Certificate” means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company.


 


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


 


“Person”
or “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.


 


“Redemption Date”
when used with respect to any Security to be redeemed, means the date fixed for
such redemption pursuant to this Indenture.


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of
December 17, 2004, between the Company and the Initial Purchaser.


 


“Restricted
Certificated Security” means
a Certificated Security that is a Restricted Security.


 


“Restricted Global
Security” means a Global Security that is a Restricted Security.


 


“Restricted Security”
means a Security required to bear the Restricted Legend called for by footnote
2 to the form of Security set forth in Exhibit A of this Indenture.


 


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


 


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


 


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


 


“Security”
or “Securities” means the Company’s
2.875% Convertible Senior Debentures due December 15, 2024, as amended or
supplemented from time to time pursuant to the terms of this Indenture, that
are issued under this Indenture.


 


5





















 


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


 


“Securities
Custodian” means the Trustee, as custodian with respect to the
Global Securities, or any successor thereto.


 


“Significant
Subsidiary” means, in respect of any Person, a Subsidiary of such
Person that would constitute a “significant subsidiary” as such term is defined
under Rule 1-02 of Regulation S-X under the Securities Act or the Exchange Act.


 


“Subsidiary”
means, in respect of any Person, any corporation, association, partnership or
other business entity of which more than 50% of the outstanding Voting Stock or
other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such Person and
one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person.


 


“TIA”
means the United States Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder as in effect on the date of this Indenture and
except to the extent any amendment to the Trust Indenture Act expressly
provides for application of the Trust Indenture Act as in effect on another
date.


 


“Trading Day”
means a day during which trading in securities generally occurs on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, on the principal other national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not listed on
a national or regional securities exchange, on the National Association of
Securities Dealers Automated Quotation system (“Nasdaq” or “The Nasdaq National
Market”) or, if the Common Stock is not quoted on Nasdaq, on the principal
other market on which such Common Stock is then traded.


 


“Trustee”
means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” should mean such successor Trustee.


 


“Trust Officer”
means, with respect to the Trustee, any officer assigned to the Corporate Trust
Office, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.


 


“Undisrupted Trading
Day” means a Trading Day on which the Common Stock does not
experience any of the following at any time during the one-hour period ending
at the conclusion of the regular Trading Day:


 


(g)           any
suspension of or limitation imposed on trading of the Common Stock on any
national or regional securities exchange or other market on which such Common
Stock is then traded;


 


(h)           any
event (other than an event listed in clause (c) below) that disrupts or impairs
the ability of market participants in general to (i) effect transactions in or
obtain market values


 


6





















 


for the Common
Stock on any relevant national or regional securities exchange or other market
on which such Common Stock is then traded, or (ii) effect transactions in or
obtain market values for, futures or options contracts relating to the Common
Stock on any relevant national or regional securities exchange or other market;
or


 


(i)            any
relevant national or regional securities exchange or other market on which such
Common Stock is then traded closes on any Trading Day prior to its scheduled closing
time unless such earlier closing time is announced by the exchange or other
market at least one hour prior to the earlier of (i) the actual closing time
for the regular trading session on such exchange or other market, and (ii) the
submission deadline for orders to be entered into the exchange or other market
for execution on such Trading Day,


 


if, in the case of
clauses (a) and (b) (but not clause (c)) above, the Company determines the
effect of such suspension, limitation, disruption or impairment is material.


 


“Unrestricted
Certificated Security” means a Certificated Security that is not a
Restricted Security.


 


“Unrestricted Global
Security” means a Global Security that is not a Restricted Security.


 


“Vice President”
when used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president.”


 


Section 1.2             Other Definitions.


 


	
  Defined in Section Term

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  “Additional Premium”

  	
   

  	
  6.1(a)

  
	
  “Additional Premium
  Table”

  	
   

  	
  6.1(b)

  
	
  “Agent Members”

  	
   

  	
  2.1(d)

  
	
  “Applicable Stock
  Price”

  	
   

  	
  7.14(c)

  
	
  “Average Debenture
  Price”

  	
   

  	
  8.1

  
	
  “Bankruptcy Law”

  	
   

  	
  11.1

  
	
  “Beneficial Owner”

  	
   

  	
  5.1(a)

  
	
  “Bid Solicitation
  Agent”

  	
   

  	
  2.3

  
	
  “Capital Stock”

  	
   

  	
  5.1(a)

  
	
  “Cash Amount”

  	
   

  	
  7.14(c)

  
	
  “Cash Settlement
  Averaging Period”

  	
   

  	
  7.14(c)

  
	
  “Company Order”

  	
   

  	
  2.2(d)

  
	
  “Contingent Debt
  Regulations”

  	
   

  	
  15

  
	
  “Contingent Interest
  Period”

  	
   

  	
  8.1

  
	
  “Continuing Directors”

  	
   

  	
  5.1(a)

  
	
  “Conversion Agent”

  	
   

  	
  2.3

  
	
  “Conversion Date”

  	
   

  	
  7.2(a)

  
	
  “Conversion Notice”

  	
   

  	
  7.2(a)

  
	
  “Conversion Price”

  	
   

  	
  7.6

  



 


7





















 


	
  Defined in Section Term

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  “Current Market Price”

  	
   

  	
  7.6(d)

  
	
  “Custodian”

  	
   

  	
  11.1

  
	
  “Determination Date”

  	
   

  	
  8.1

  
	
  “Depositary”

  	
   

  	
  2.1(b)

  
	
  “Effective Date”

  	
   

  	
  6.1(b)

  
	
  “Event of Default”

  	
   

  	
  11.1

  
	
  “‘ex’ date”

  	
   

  	
  7.6(d)

  
	
  “Expiration Date”

  	
   

  	
  7.6(c)

  
	
  “Fundamental Change”

  	
   

  	
  5.1(a)

  
	
  “Fundamental Change
  Company Notice”.

  	
   

  	
  5.1(a)(6)

  
	
  “Fundamental Change
  Purchase Date”

  	
   

  	
  5.1(a)

  
	
  “Fundamental Change
  Purchase Notice”

  	
   

  	
  5.1(c)

  
	
  “Fundamental Change
  Purchase Price”

  	
   

  	
  5.1(a)

  
	
  “Legal Holiday”

  	
   

  	
  16.7

  
	
  “Make-Whole Premium”

  	
   

  	
  6.1(b)

  
	
  “Notice of Default”

  	
   

  	
  11.1

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Purchase Date”

  	
   

  	
  4.1(a)

  
	
  “Purchase Notice”

  	
   

  	
  4.1(c)

  
	
  “Purchase Price”

  	
   

  	
  4.1(a)

  
	
  “Purchased Shares”

  	
   

  	
  7.6(c)

  
	
  “QIB” or “QIBs”

  	
   

  	
  2.1(b)

  
	
  “Redemption Price”

  	
   

  	
  3.1

  
	
  “Register”

  	
   

  	
  2.3

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Restricted Legend”

  	
   

  	
  2.12(f)

  
	
  “Rights Plan”

  	
   

  	
  7.6(c)

  
	
  “Settlement Method Notice”

  	
   

  	
  7.14(a)

  
	
  “Stock Price”

  	
   

  	
  6.1(b)

  
	
  “Stock Price Cap”

  	
   

  	
  6.1(b)

  
	
  “Stock Price Threshold”

  	
   

  	
  6.1(b)

  
	
  “Trigger Event”

  	
   

  	
  7.6(c)

  
	
  “Triggering Distribution”

  	
   

  	
  7.6(c)

  
	
  “Volume-Weighted Average Price”

  	
   

  	
  7.14(c)

  



 


Section 1.3             Trust Indenture Act
Provisions


 


Whenever this Indenture refers to a provision of the
TIA, that provision is incorporated by reference in and made a part of this
Indenture. The Indenture shall also include those provisions of the TIA
required to be included herein by the provisions of the Trust Indenture Reform
Act of 1990. The following TIA terms used in this Indenture have the following
meanings:


 


“Commission” means the SEC.


 


8





















 


“indenture
securities” means the Securities;


 


“indenture security
holder” means a Securityholder;


 


“indenture to be
qualified” means this Indenture;


 


“indenture trustee”
or “institutional trustee” means
the Trustee; and


 


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


 


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


 


Section 1.4             Rules of Construction


 


Unless the context otherwise requires:


 


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


 


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


 


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


 


(d)           provisions
apply to successive events and transactions;


 


(e)           the
term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;


 


(f)            the
masculine gender includes the feminine and the neuter;


 


(g)           references
to agreements and other instruments include subsequent amendments thereto;


 


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


 


(i)            unless the context otherwise requires, any
reference to an “Article” or a “Section” refers to an Article or Section, as
the case may be, of this Indenture.


 


9





















 


ARTICLE 2

THE SECURITIES


 


Section 2.1             Form and Dating


 


(a)           The
Securities and the corresponding Trustee’s certificate of authentication shall
be substantially in the respective forms set forth in Exhibit A, which Exhibit is incorporated in
and made part of this Indenture.  The
Securities may have notations, legends or endorsements required by law,
exchange rule, Applicable Procedures or usage. 
The Company shall provide any such notations, legends or endorsements to
the Trustee in writing.  Each Security
shall be dated the date of its authentication.


 


The terms and provisions contained in the Securities
shall constitute, and are hereby expressly made, a part of this Indenture and
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; provided, however, to the extent permitted
by applicable law, if any provision of any Security conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.


 


(b)           Restricted
Global Securities.  All of the
Securities are initially being resold by the Initial Purchaser to qualified
institutional buyers as defined in Rule 144A (collectively, “QIBs” or
individually, each a “QIB”) in reliance on Rule 144A and shall be issued
initially in the form of one or more Restricted Global Securities, which shall
be deposited on behalf of the purchasers of the Securities represented thereby
with the Trustee, at its Corporate Trust Office, as custodian for the
depositary, The Depository Trust Company (such depositary, or any successor
thereto, being hereinafter referred to as the “Depositary”), and registered in
the name of its nominee, Cede & Co., or as otherwise instructed by the
Depositary duly executed by the Company and authenticated by the Trustee as
hereinafter provided.  The aggregate
principal amount of the Restricted Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Securities
Custodian and the Depositary as hereinafter provided, subject in each case to
compliance with the Applicable Procedures and the provisions of this Indenture.


 


(c)           Global
Securities In General.  Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions, purchases or conversions of such Securities.  Any adjustment of the aggregate principal
amount of a Global Security to reflect the amount of any increase or decrease
in the amount of outstanding Securities represented thereby shall be made by
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 hereof and shall be made on the records of the Trustee
and the Depositary.


 


The Company shall issue and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to deliver promptly),
authenticate and deliver in accordance with Section 2.2, initially one or more
Global Securities that (i) shall be registered in the name of Cede & Co.


 


10





















 


or as otherwise instructed by the Depositary, (ii)
shall be delivered by the Trustee to the Depositary or to the Securities
Custodian pursuant to the Depositary’s instructions and (iii) shall bear
legends required for Global Securities as set forth on Exhibit A hereto.


 


(d)           Book
Entry Provisions.  Members of, or
participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary (including, for
this purpose, its nominee) 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 Security for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall (A) 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 (B) impair, as between
the Depositary and its Agent Members, the Applicable Procedures or the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.


 


(e)           Certificated
Securities.  Certificated Securities
will be issued only under the limited circumstances provided in Section
2.12(a)(i).


 


Section 2.2             Execution and
Authentication


 


(a)           An
Officer of the Company shall sign the Securities for the Company by manual or
facsimile signature.  Typographic and
other minor errors or defects in any such facsimile signature shall not affect
the validity or enforceability of any Security that has been authenticated and
delivered by the Trustee.


 


(b)           If
an Officer of the Company whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be valid nevertheless.


 


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


 


(d)           The
Trustee shall authenticate and make available for delivery Securities for
original issue in the aggregate principal amount of $250,000,000 upon receipt
of a written order or orders of the Company signed by an Officer of the Company
(a “Company Order”).  Each Company Order
shall specify the amount of Securities to be authenticated, shall provide that
all such Securities shall be represented by a Restricted Global Security and
the date on which each original issue of Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$250,000,000 except as provided in Section 2.7.


 


(e)           The
Trustee shall act as the initial authenticating agent.  Thereafter, the Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent shall have the same
rights as an Agent to deal with the Company or an Affiliate of the Company.


 


11





















 


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


 


Section 2.3             Registrar, Paying Agent
and Conversion Agent and Bid Solicitation Agent


 


The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange (“Registrar”),
an office or agency where Securities may be presented for redemption, purchase
or payment (“Paying Agent”), an office or agency where Securities may be
presented for conversion (“Conversion Agent”) and an office or agency where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served.  The Company shall also appoint a bid
solicitation agent (“Bid Solicitation Agent”) and may at any time replace any
appointed Bid Solicitation Agent with a successor.  Pursuant to Section 9.6, the Company
shall at all times maintain a Paying Agent, Conversion Agent, Bid Solicitation
Agent and Registrar and an office or agency where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served.  The Registrar shall keep a
register of the Securities (“Register”) and of their transfer and exchange.


 


The Company may have one or more co-registrars, one or
more additional paying agents, one or more additional conversion agents and one
or more additional bid solicitation agents. 
The term Registrar includes any co-registrar, including any named
pursuant to Section 9.6.  The term Paying
Agent includes any additional paying agent, including any named pursuant to
Section 9.6.  The term Conversion Agent
includes any additional conversion agent, including any named pursuant to
Section 9.6.  The term Bid Solicitation Agent includes any
additional bid solicitation agent.


 


The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture.  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
Agent not a party to this Indenture.  If
the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
Bid Solicitation Agent or agent for service of notices and demands in any place
required by this Indenture, or fails to give the foregoing notice, the Trustee
shall act as such.  The Company or any
Affiliate of the Company may act as Paying Agent.  None of the Company or any Affiliate may act
as Bid Solicitation Agent.


 


The Company hereby initially appoints the Trustee as
Registrar, Paying Agent, Conversion Agent and Bid Solicitation Agent in
connection with the Securities.


 


Section 2.4             Paying Agent to Hold Money
and Securities in Trust


 


Prior to 10:00 a.m., New York City time, on each due
date of payments in respect of, or delivery of Common Stock, cash or a
combination of cash and Common Stock, as applicable, upon conversion of, any
Security, the Company shall deposit with the Paying Agent cash (in immediately
available funds if deposited on the due date) and/or with the Conversion Agent
such number of shares of Common Stock sufficient to make such payments or
deliveries when so becoming due.  The
Company shall require each Paying Agent or Conversion Agent, as applicable
(other than the Trustee), to agree in writing that such Agent shall hold in
trust for the benefit of Securityholders or the Trustee all cash or Common
Stock, as applicable, held by such


 


12





















 


Agent for the making of payments or deliveries in
respect of the Securities and shall notify the Trustee of any default by the
Company in making any such payment or delivery. 
If the Company or an Affiliate of the Company acts as Paying Agent or
Conversion Agent, as applicable, it shall segregate the cash and Common Stock,
as applicable, held by it as Paying Agent or Conversion Agent, as applicable,
and hold it as a separate trust fund.


 


The Company at any time may require a Paying Agent or
Conversion Agent, as applicable, to pay all cash or Common Stock held by it to
the Trustee, and the Trustee may at any time during the continuance of any
default, upon written request to the Paying Agent or the Conversion Agent, as
applicable, require such Paying Agent or Conversion Agent, as applicable, to
pay forthwith to the Trustee all cash or Common Stock, as applicable, so held in
trust by such Paying Agent or Conversion Agent. 
Upon doing so, the Paying Agent or the Conversion Agent, as applicable,
shall have no further liability for the cash or Common Stock, as applicable.


 


Section 2.5             Securityholder Lists


 


The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Securityholders.  If the
Trustee is not the Registrar, the Company shall furnish to the Trustee on or
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 request the names and addresses of the Securityholders.


 


Section 2.6             Transfer and Exchange


 


(a)           Subject
to compliance with any applicable additional requirements contained in Section
2.12, when a Security is presented to a Registrar with a request to register a
transfer thereof or to exchange such Security for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that every
Security presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form, in the form
included in Exhibit A attached hereto
and, if applicable, a transfer certificate, in the form included in Exhibit B attached hereto, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing.  To
permit registration of transfers and exchanges, upon surrender of any Security
for registration of transfer or exchange at an office or agency maintained
pursuant to Section 2.3, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s
request.  Any exchange or transfer shall
be without charge, except that the Company or the Registrar may require payment
of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in relation thereto.


 


Neither the Company, any Registrar nor the Trustee
shall be required to exchange or register a transfer of (i) any Securities for
a period of 15 days next preceding any mailing of a notice of Securities to be
redeemed, (ii) any Securities or portions thereof selected or called for
redemption (except, in the case of redemption of a Security in part, the
portion thereof not to be redeemed) or (iii) any Securities or portions thereof
in respect of which a Fundamental Change Purchase Notice or Purchase Notice has
been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).


 


13





















 


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


 


(b)           Any
Registrar appointed pursuant to Section 2.3 hereof shall provide to the Trustee
such information as the Trustee may reasonably request in connection with the
delivery by such Registrar of Securities upon transfer or exchange of
Securities.


 


(c)           Each
Holder of a Security agrees to indemnify the Company, the Registrar and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder’s Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.


 


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 Security (including any transfers between or
among Agent Members or other beneficial owners of interests in any Global
Security) other than to require delivery of such opinions of counsel,
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
(including if so requested by the Company exercising a right to require the
delivery of such items), and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


Section 2.7             Replacement Securities


 


If (a) any mutilated Security is surrendered to the
Company, a Registrar or the Trustee, or (b) the Company, the Registrar and the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and, in either case, there is delivered to the Company,
the Registrar and the Trustee such security or indemnity as shall be required
by them to save each of them harmless, then, in the absence of notice to the
Company, such Registrar or the Trustee that such Security has been acquired by
a bona fide or protected purchaser, the Company shall issue, and the Trustee
shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly),
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, or is about to be
redeemed pursuant to Article 3 or purchased by the Company pursuant to Articles
4 or 5, the Company in its discretion may, instead of issuing a new Security,
pay, redeem or purchase such Security, as the case may be.


 


Upon the issuance of any new Securities under this
Section 2.7, the Company may require the payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable
fees and expenses of the Trustee or the Registrar) in connection therewith.


 


Every new Security issued pursuant to this Section 2.7
in lieu of any mutilated, destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of


 


14





















 


the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.


 


The provisions of this Section 2.7 are (to the extent
lawful) exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.


 


Section 2.8             Outstanding Securities


 


Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those paid,
redeemed or repurchased pursuant to Section 2.7, those delivered to it for
cancellation and those described in this Section 2.8 as not outstanding.


 


If a Security is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee receives, subsequent to the new
Security’s authentication, proof satisfactory to the Company that the replaced
Security is held by a bona fide or protected purchaser.


 


If the Paying Agent holds, in accordance with the
terms of this Indenture, prior to 10:00 a.m., New York City time, on the Final
Maturity Date or a Redemption Date or on the Business Day immediately following
a Purchase Date or a Fundamental Change Purchase Date, as the case may be, cash
or securities, if permitted hereunder, sufficient to pay Securities payable,
then immediately after such Final Maturity Date, Redemption Date, Purchase Date
or Fundamental Change Purchase Date, as the case may be, such Securities shall
cease to be outstanding and interest on such Securities shall cease to accrue.


 


If a Security is converted in accordance with Article
7, then from and after 5:00 p.m., New York City time, on the Conversion Date,
such Security shall cease to be outstanding and interest on such Security shall
cease to accrue.


 


Subject to the restrictions contained in Section 2.9,
a Security does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Security.


 


Section 2.9             Treasury Securities


 


In determining whether the Holders of the required
principal amount of Securities have given or concurred in any notice, request,
demand, authorization, direction, waiver or consent, Securities owned by the
Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, for purposes of determining whether the Trustee shall
be protected in relying on any such notice, direction, waiver or consent, only Securities
which a Trust Officer actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to the Securities and that the pledgee
is not the Company or any other obligor on the Securities or any Affiliate of
the Company or of such other obligor.


 


15





















 


Section 2.10           Temporary Securities


 


Until definitive Securities are ready for delivery,
the Company may prepare and execute, and, upon receipt of a Company Order, the
Trustee shall authenticate and deliver, temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company with the consent of the Trustee considers
appropriate for temporary Securities. 
After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.3, without charge to the Holder.  Upon surrender for cancellation of any one or
more temporary Securities the Company shall execute and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
authorized denominations.  Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.


 


Section 2.11           Cancellation


 


The Company at any time may deliver Securities to the
Trustee for cancellation.  The Registrar,
the Paying Agent and the Conversion Agent shall forward to the Trustee or its
agent any Securities surrendered to them for transfer, exchange, redemption,
payment or conversion.  The Trustee and
no one else shall cancel, in accordance with its standard procedures, all
Securities surrendered for transfer, exchange, redemption, payment, conversion
or cancellation and shall deliver the canceled Securities to the Company.


 


All Securities that are redeemed or purchased pursuant
to Articles 3, 4 or 5 or otherwise acquired by the Company shall be delivered
to the Trustee for cancellation.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a repurchase or satisfaction
of the indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation.


 


Section 2.12           Legend; Additional
Transfer and Exchange Requirements


 


(a)           Transfer and Exchange of Global Securities.


 


(i)            Certificated
Securities shall be issued in exchange for interests in the Global Securities
only (x) if the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the Global Securities or if it at any time ceases
to be a “clearing agency” registered under the Exchange Act, if so required by
applicable law or regulation, and a successor Depositary is not appointed by
the Company within 90 days, (y) if an Event of Default has occurred and is
continuing, or (z) by the Company in accordance with the Applicable Procedures.  In any such case, the Company shall execute,
and the Trustee shall, upon receipt of a Company Order (which the Company
agrees to deliver promptly), authenticate and deliver Certificated Securities
in an aggregate principal amount equal to the principal amount of such Global
Securities in exchange therefor.  Only
Restricted Certificated Securities shall be issued in exchange for beneficial
interests in Restricted Global Securities, and only Unrestricted Certificated


 


16





















 


Securities shall
be issued in exchange for beneficial interests in Unrestricted Global
Securities.  Certificated Securities
issued in exchange for beneficial interests in Global Securities shall be
registered in such names and shall be in such authorized denominations as the
Depositary, pursuant to instructions from its Agent Members or otherwise in
accordance with the Applicable Procedures, shall instruct the Trustee.  The Trustee shall deliver or cause to be
delivered such Certificated Securities to the Persons in whose name such
Securities are so registered.  Such
exchange shall be effected in accordance with the Applicable Procedures.


 


(ii)           Notwithstanding
any other provisions of this Indenture other than the provisions set forth in
Section 2.12(a)(i), a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.


 


(b)           Transfer
and Exchange of Certificated Securities. 
In the event that Certificated Securities are issued in exchange for
beneficial interests in Global Securities in accordance with Section
2.12(a)(i), and, on or after such event, Certificated Securities are presented
by a Holder to the Registrar with a request:


 


(x)            to
register the transfer of the Certificated Securities to a person who will take
delivery thereof in the form of Certificated Securities only; or


 


(y)           to
exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,


 


such Registrar shall
register the transfer or make the exchange as requested; provided, however,
that the Certificated Securities presented or surrendered for register of
transfer or exchange:


 


(i)            shall
be duly endorsed or accompanied by a written instrument of transfer in
accordance with the proviso to Section 2.6(a); and


 


(ii)           in
the case of a Restricted Certificated Security, such request shall be
accompanied by the following additional information and documents, as
applicable:


 


(1)           if
such Restricted Certificated Security is being delivered to the Registrar by a
Holder for registration in the name of such Holder, without transfer, or such
Restricted Certificated Security is being transferred to the Company or a
Subsidiary of the Company, a certification to that effect from such Holder (in
substantially the form set forth in Exhibit B);


 


(2)           if
such Restricted Certificated Security is being transferred to a person the
Holder reasonably believes is a QIB in accordance with Rule 144A, or pursuant
to an effective registration statement under the Securities Act or in
compliance with Rule 904 under the Securities Act, a certification to that
effect from such Holder (in substantially the form set forth in Exhibit B);


 


17





















 


(3)           if
such Restricted Certificated Security is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 pursuant to and in compliance with an exemption from
the registration requirements under the Securities Act, a certification to that
effect from the Holder (in substantially the form set forth in Exhibit B)
and, if the Company or the Registrar so requests, a customary opinion of
counsel, certificates and other information reasonably acceptable to the
Company and the Registrar to the effect that such transfer does not require
registration under the Securities Act.


 


(c)           Transfer
of a Beneficial Interest in a Restricted Global Security for a Beneficial
Interest in an Unrestricted Global Security.  Any person having a beneficial interest in a
Restricted Global Security may upon request, subject to the Applicable
Procedures, transfer such beneficial interest to a Person who is required or
permitted to take delivery thereof in the form of an Unrestricted Global
Security.  Upon receipt by the Trustee of
written instructions, or such other form of instructions as is customary for
the Depositary, from the Depositary or its nominee on behalf of any Person
having a beneficial interest in a Restricted Global Security and the following
additional information and documents in such form as is customary for the
Depositary from the Depositary or its nominee on behalf of the person having
such beneficial interest in the Restricted Global Security (all of which may be
submitted by facsimile or electronically):


 


(i)            if
such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certification to that effect
from the Holder (in substantially the form set forth in Exhibit B); or


 


(ii)           if
such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a
certification to that effect from the Holder (in substantially the form set
forth in Exhibit B) and, if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information reasonably
acceptable to the Company and the Register to the effect that such transfer
does not require registration under the Securities Act,


 


the Registrar shall
reduce or cause to be reduced the aggregate principal amount of the Restricted
Global Security by the appropriate principal amount and shall increase or cause
to be increased the aggregate principal amount of the Unrestricted Global
Security by a like principal amount. 
Such transfer shall otherwise be effected in accordance with the
Applicable Procedures.  If no
Unrestricted Global Security is then outstanding, the Company shall execute and
the Trustee shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver an Unrestricted Global Security.


 


(d)           Transfer
of a Beneficial Interest in an Unrestricted Global Security for a Beneficial
Interest in a Restricted Global Security. 
Any person having a beneficial interest in an Unrestricted Global
Security may upon request, subject to the Applicable Procedures, transfer such
beneficial interest to a person who is required or permitted to take delivery
thereof in the form of a Restricted Global Security.  Upon receipt by the Trustee of written
instructions, or such other form of instructions as is customary for the
Depositary, from the Depository or its nominee on behalf of any person having a
beneficial interest in an Unrestricted Global Security and the following
additional information and documents in such form as is customary for the
Depositary,


 


18





















 


from the
Depositary or its nominee on behalf of the person having such beneficial
interest in the Unrestricted Global Security (all of which may be submitted by
facsimile or electronically):


 


(i)            a
certification from the Holder (in substantially the form set forth in Exhibit
B) to the effect that such beneficial interest is being transferred to a
person that the transferor reasonably believes is a QIB in accordance with Rule
144A;


 


(ii)           a
certification from the Holder (in substantially the form set forth in Exhibit
B) to the effect that such beneficial interest is being transferred in
compliance with Rule 904 under the Act; or


 


(iii)          a certification (in substantially the form
set forth in Exhibit B) to the effect that such beneficial interest is
being transferred to the Company or a Subsidiary of the Company.


 


The Registrar shall reduce or cause to be reduced the
aggregate principal amount of the Unrestricted Global Security by the
appropriate principal amount and shall increase or cause to be increased the
aggregate principal amount of the Restricted Global Security by a like
principal amount.  Such transfer shall
otherwise be effected in accordance with the Applicable Procedures.  If no Restricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver a Restricted Global Security.


 


(e)           Transfers
of Certificated Securities for Beneficial Interest in Global Securities.  In the event that Certificated Securities are
issued in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(i) which
required such exchange shall cease to exist, the Company shall mail notice to
the Trustee and to the Holders stating that Holders may exchange Certificated
Securities or interests in Global Securities by complying with the procedures set
forth in this Indenture and briefly describing such procedures and the events
or circumstances requiring that such notice be given. Thereafter, if
Certificated Securities are presented by a Holder to a Registrar with a
request:


 


(x)            to
register the transfer of such Certificated Securities to a Person who will take
delivery thereof in the form of a beneficial interest in a Global Security,
which request shall specify whether such Global Security will be a Restricted
Global Security or an Unrestricted Global Security, or


 


(y)           to
exchange such Certificated Securities for an equal principal amount of
beneficial interests in a Global Security, which beneficial interests will be
owned by the Holder transferring such Certificated Securities (provided that in
the case of such an exchange, Restricted Certificated Securities may be
exchanged only for Restricted Global Securities and Unrestricted Certificated
Securities may be exchanged only for Unrestricted Global Securities), the
Registrar shall register the transfer or make the exchange as requested by
canceling such Certificated Security and causing the aggregate principal amount
of the applicable Global Security to be increased accordingly and, if no such
Global Security is then outstanding, the Company shall issue and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to deliver
promptly) authenticate and deliver a new Global Security;


 


19





















 


provided, however,
that the Certificated Securities presented or surrendered for registration of
transfer or exchange:


 


(i)            shall
be duly endorsed or accompanied by a written instrument of transfer in
accordance with the proviso to Section 2.6(a);


 


(ii)           in
the case of a Restricted Certificated Security to be transferred for a
beneficial interest in an Unrestricted Global Security, such request shall be
accompanied by the following additional information and documents, as
applicable:


 


(1)           if
such Restricted Certificated Security is being transferred pursuant to an
effective registration statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form set forth in Exhibit
B); or


 


(2)           if
such Restricted Certificated Security is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certification to that effect from such Holder (in
substantially the form set forth in Exhibit B) and, if the Company or
the Registrar so requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and the Trustee to the
effect that such transfer does not require registration under of the Securities
Act;


 


(iii)          in
the case of a Restricted Certificated Security to be transferred or exchanged
for a beneficial interest in a Restricted Global Security, such request shall
be accompanied by the following information and documents, as applicable:


 


(1)           if
such Restricted Certificated Security is being transferred to a person the
Holder reasonably believes is a QIB (which, in the case of an exchange, shall
be such Holder) in accordance with Rule 144A, a certification to that effect
from such Holder (in substantially the form set forth in Exhibit B); or


 


(2)           if
such Restricted Certificated Security is being transferred in compliance with
Rule 904 under the Act, certification to that effect from such Holder (in
substantially the form set forth in Exhibit B);


 


(iv)          in
the case of an Unrestricted Certificated Security to be transferred or
exchanged for a beneficial interest in an Unrestricted Global Security, such
request need not be accompanied by any additional information or documents; and


 


(v)           in
the case of an Unrestricted Certificated Security to be transferred or
exchanged for a beneficial interest in a Restricted Global Security, such
request shall be accompanied by the following additional information and
documents, as applicable:


 


(1)           if
such Unrestricted Certificated Security is being transferred to a person the
Holder reasonably believes is a QIB (which, in the case of an exchange, shall
be such Holder) in accordance with Rule 144A, a certification to that effect
from such Holder (in substantially the form set forth in Exhibit B);


 


20





















 


(2)           if
such Unrestricted Certificated Security is being transferred in compliance with
Rule 904 under the Act, certification to that effect from such Holder (in
substantially the form set forth in Exhibit B); or


 


(3)           if such Restricted Certificated Security is
being transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in substantially the form set
forth in Exhibit B).


 


(f)            Legends.


 


(i)            Except
as permitted by the following paragraphs (ii), (iii) and (iv), each Global
Security and Certificated Security (and all Securities issued in exchange
therefor or upon registration of transfer or replacement thereof) shall bear a
legend in substantially the form called for by footnote 2 to Exhibit A
attached hereto (the “Restricted Legend”), for so long as it is required by
this Indenture to bear such legend.


 


(ii)           Upon
any sale or transfer of a Restricted Security (x) after the expiration of the
holding period applicable to sales of the Securities under Rule 144(k) of the
Securities Act, (y) pursuant to Rule 144 or (z) pursuant to an effective
registration statement under the Securities Act:


 


(1)           in
the case of any Restricted Certificated Security, any Registrar shall permit
the Holder thereof to exchange such Restricted Certificated Security for an
Unrestricted Certificated Security, or (under the circumstances described in
Section 2.12(e)) to transfer such Restricted Certificated Security to a
transferee who shall take such Security in the form of a beneficial interest in
an Unrestricted Global Security, and in each case shall rescind any restriction
on the transfer of such Security; provided, however, that the Holder of such Restricted
Certificated Security shall, in connection with such exchange or transfer,
comply with the other applicable provisions of this Section 2.12; and


 


(2)           in
the case of any beneficial interest in a Restricted Global Security, the
Trustee shall permit the beneficial owner thereof to transfer such beneficial
interest to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and shall rescind any
restriction on transfer of such beneficial interest; provided, however, that such
Unrestricted Global Security shall continue to be subject to the provisions of
Section 2.12(a)(ii); and provided further, however,
that the owner of such beneficial interest shall, in connection with such
transfer, comply with the other applicable provisions of this Section 2.12.


 


(iii)          Upon
the exchange, registration of transfer or replacement of Securities not bearing
the Restricted Legend, the Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver,
Securities that do not bear such Restricted Legend.


 


(iv)          After
the expiration of the holding period pursuant to Rule 144(k) of the Securities
Act, the Company may with the consent of the Holder of a Restricted Global


 


21





















 


Security or a
Restricted Certificated Security, remove any restriction of transfer on such
Security, and the Company shall issue, and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver Securities
that do not bear the Restricted Legend.


 


(v)           Until
the expiration of the holding period applicable to sales of the Securities
under Rule 144(k) of the Securities Act or a transfer pursuant to Rule 144 or
pursuant to an effective registration statement under the Securities Act, the
shares of Common Stock issued upon conversion of the Securities shall bear the
Restricted Legend.


 


(g)           Transfers
to the Company.  Nothing contained in
this Indenture or in the Securities shall prohibit the sale or other transfer
of any Securities (including beneficial interests in Global Securities) to the
Company or any of its Subsidiaries.


 


Section 2.13           CUSIP Numbers


 


The Company in issuing the Securities may use one or
more “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall
use “CUSIP” numbers in notices of redemption or purchase as a convenience to
Holders; 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 Securities
or as contained in any notice of a redemption or purchase and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption or purchase shall not be affected by any defect in or
omission of such numbers.  The Company
shall promptly notify the Trustee of any change in the “CUSIP” numbers.


 


Section 2.14           Ranking


 


The obligations of the Company arising under or in
connection with this Indenture and every outstanding Security issued under this
Indenture from time to time constitutes and shall constitute a senior unsecured
general obligation of the Company, ranking equally with existing and future
senior unsecured Indebtedness of the Company and ranking senior in right of
payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness.


 


Section 2.15           Persons Deemed Owners


 


Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of principal
of, Redemption Price, Purchase Price or Fundamental Change Purchase Price, and
interest on the Security, for the purpose of receiving cash and/or Common Stock
upon conversion and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.


 


22





















 


ARTICLE 3

REDEMPTION


 


Section 3.1             The Company’s Right to
Redeem; Notice to Trustee


 


Prior to December 20, 2009, the Securities shall not
be redeemable at the Company’s option. 
On or after December 20, 2009, the Company, at its option, may redeem
the Securities in accordance with this Article 3 in cash at any time, in whole
or in part, at the times and at the Redemption Prices specified in paragraph 5
of the form of Security attached hereto as Exhibit A, plus accrued and
unpaid interest to, but not including, the Redemption Date (the “Redemption
Price”).


 


In the event that the Company elects to redeem the
Securities on a date that is after any Interest Payment Record Date but on or
before the corresponding Interest Payment Date, the Company shall be required
to pay any accrued and unpaid interest to the same Holder to whom the Company
pays the principal of such Security regardless of whether such Holder was the
registered Holder on the Interest Payment Record Date immediately preceding
such Redemption Date and, if the Holder to whom the Company pays the principal
and interest was not the registered Holder on the Interest Payment Record Date,
such payment shall be in lieu of payment to the registered Holder on such
Interest Payment Record Date.


 


If the Company elects to redeem Securities pursuant to
this Section 3.1 and paragraph 5 of the Securities, it shall notify the Trustee
of the Redemption Date and the principal amount of Securities to be redeemed at
least 15 days prior to the date notice of the Redemption Date is given to the
Holders pursuant to Section 3.3 (unless a shorter notice shall be satisfactory
to the Trustee).


 


Section 3.2             Selection of Securities to
be Redeemed


 


If less than all of the Securities are to be redeemed,
unless the Applicable Procedures provide otherwise, the Trustee shall select
the Securities to be redeemed. The Trustee shall make the selection by lot, on
a pro rata basis or by any other method the Trustee considers fair and
appropriate or in accordance with the Applicable Procedures to the extent the
Securities are issued as Global Securities. 
The Trustee shall make the selection within five Business Days after it
receives the notice provided for in Section 3.1 from outstanding Securities not
previously called for redemption. 
Securities in denominations of $1,000 principal amount may only be
redeemed in whole.  The Trustee may
select for redemption portions (equal to $1,000 principal amount or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000 principal amount.  Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.  The Trustee shall notify
the Company promptly of the Securities or portions of the Securities to be
redeemed.


 


Securities and portions of Securities that are to be
redeemed are convertible by the Holder until 5:00 p.m., New York City time, on
the Business Day immediately preceding the Redemption Date.  If any Security selected for partial
redemption is converted in part before termination of the conversion right with
respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed to be the portion selected for redemption. 


 


23





















 


Securities that have been converted subsequent to the
Trustee commencing selection of Securities to be redeemed but prior to
redemption of such Securities shall be treated by the Trustee as outstanding
for the purpose of such selection.


 


Section 3.3             Notice of Redemption


 


Except as may be permitted under Section 15.1, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail or cause to be mailed a notice of redemption to each Holder of
Securities to be redeemed in accordance with Section 16.2.


 


The notice shall identify the Securities (including
the CUSIP number(s) of the Securities) to be redeemed and shall state:


 


(1)           the
Redemption Date;


 


(2)           the
Redemption Price;


 


(3)           the
then current Conversion Price;


 


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


 


(5)           that
Securities called for redemption must be presented and surrendered to the
Paying Agent at any time prior to 5:00 p.m., New York City time, on the
Business Day preceding the Redemption Date, to collect the Redemption Price;


 


(6)           that
Holders who wish to convert Securities must surrender such Securities for
conversion prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Redemption Date and must satisfy the other
requirements set forth in paragraph 7 of the Securities and Article 7 hereof;


 


(7)           that,
unless the Company defaults in making the payment of the Redemption Price,
interest on Securities called for redemption shall cease accruing on and after
the Redemption Date; and


 


(8)           if
any Security is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the Redemption Date, upon
presentation and surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof shall be
issued.


 


If any of the Securities to be redeemed is in the form
of a Global Security, then the Company shall modify such notice to the extent
necessary to accord with the Applicable Procedures applicable to redemptions.


 


At the Company’s written request, the Trustee shall
give the notice of redemption to each Holder in the Company’s name and at the
Company’s expense; provided,
however, that the Company makes such request at least three Business
Days (unless a shorter period shall be


 


24





















 


satisfactory to the Trustee) prior to the date by
which such notice of redemption must be given to Holders in accordance with
this Section 3.3; provided
further, however, that the text of the notice of
redemption shall be prepared by the Company.


 


Section 3.4             Effect of Notice of Redemption


 


Once notice of redemption is mailed, Securities called
for redemption become due and payable on the Redemption Date and at the
Redemption Price stated in the notice, except for Securities that are converted
in accordance with the provisions of this Indenture.  Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price.


 


Section 3.5             Deposit of Redemption
Price


 


Prior to 10:00 a.m. New York City time, on the
applicable Redemption Date, the Company shall deposit with the Paying Agent
(or, if the Company or an Affiliate acts as Paying Agent, shall segregate and
hold in trust as provided in Section 2.4) an amount of cash (in immediately
available funds if deposited on such Redemption Date) sufficient to pay the
aggregate Redemption Price of all Securities or portions thereof that are to be
redeemed on that Redemption Date, other than Securities or portions thereof
called for redemption on that date that have been delivered by the Company to
the Trustee for cancellation or have been delivered by the Holder thereof for conversion.


 


If the Paying Agent holds, in accordance with the
terms hereof, at 10:00 a.m., New York City time, on the applicable Redemption
Date, cash sufficient to pay the Redemption Price of any Securities for which
notice of redemption is given, then, immediately after such Redemption Date,
such Securities shall cease to be outstanding and interest on such Securities
shall cease to accrue, whether or not such Securities are delivered by their
Holders to the Paying Agent, and the rights of the Holders in respect thereof
shall terminate (other than the right to receive the Redemption Price upon
delivery of such Securities by their Holders to the Paying Agent).


 


Section 3.6             Securities Redeemed in
Part


 


Any Certificated Security that is to be redeemed only
in part shall be surrendered at the office of the Paying Agent and promptly
after the Redemption Date, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities, of
such authorized denomination or denominations as may be requested by such
Holder, in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
redeemed.


 


Section 3.7             Repayment to the Company


 


To the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.5 exceeds the aggregate
Redemption Price of the Securities or portions thereof that the Company is
obligated to redeem on the Redemption Date (because of the conversion of
Securities pursuant to Article 7 or otherwise, then, promptly after the
Redemption Date, the Paying Agent shall return any such excess cash to the
Company.


 


25





















 


ARTICLE 4

OPTIONAL PUT


 


Section 4.1             Optional Put


 


(a)           Securities
shall be purchased by the Company, at the option of any Holder thereof, in
accordance with the provisions of paragraph 6 of the Securities on December 15
of 2011, 2014 and 2019 (each, a “Purchase Date”) at a purchase price in cash
equal to 100% of the principal amount of those Securities, plus accrued and
unpaid interest to, but not including, the Purchase Date (the “Purchase
Price”), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 4.1(c).


 


(b)           Notice
of Purchase Date.  Unless the Company has elected to redeem the
Securities in whole on or before the Repurchase Date (to the extent permitted
by this Indenture), no later than 20 Business Days prior to each
Purchase Date, the Company shall mail a written notice of the purchase right to
each Holder (and to beneficial owners as required by applicable law) in
accordance with Section 16.2.  The
notice shall include a form of Purchase Notice to be completed by the Holder
and shall state, as applicable:


 


(1)           the date
by which the Purchase Notice must be delivered to the Paying Agent in order for
a Holder to exercise the purchase right;


 


(2)           the
Purchase Date;


 


(3)           the
Purchase Price;


 


(4)           the
procedures the Holder must follow to exercise its put right under this Section 4.1;


 


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


 


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


 


(7)           that the
Purchase Price for any Security as to which a Purchase Notice has been duly
given and not withdrawn shall be paid promptly following the later of the
Purchase Date and the time of surrender of such Security;


 


(8)           the
conversion rights, if any, of the Securities;


 


(9)           the
current Conversion Price;


 


(10)         that the
Securities with respect to which a Purchase Notice has been given may be
converted if they are otherwise convertible pursuant to Article 7 of this
Indenture only if the Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;


 


26





















 


(11)         the
procedures for withdrawing a Purchase Notice;


 


(12)         that, unless
the Company defaults in making payment of such Purchase Price, interest on
Securities surrendered for purchase by the Company shall cease to accrue on and
after the Purchase Date; and


 


(13)         the CUSIP
number(s) of the Securities.


 


If any of the Securities
is in the form of a Global Security, the Company shall modify such notice to
the extent necessary to accord with the Applicable Procedures applicable to
repurchases.


 


At the Company’s request,
the Trustee shall give the notice of purchase right in the Company’s name and
at the Company’s expense; provided, however, that the Company makes such request at
least three Business Days (unless a shorter period shall be satisfactory to the
Trustee) prior to the date by which such notice of purchase right must be given
to the Holder in accordance with this Section 4.1(b); provided  further, however,
that the text of such notice of purchase right shall be prepared by the
Company.


 


(c)           Purchase
Notice.  A Holder may exercise its
right specified in Section 4.1(a) upon delivery of a written notice
(which shall be in substantially the form included in Exhibit A hereto and which may be
delivered by letter, overnight courier, hand delivery, facsimile transmission
or in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Applicable
Procedures) of the exercise of such rights (a “Purchase Notice”), to a Paying
Agent at any time during the period beginning at 9:00 a.m., New York City
time, on the date that is 20 Business Days prior to the relevant Purchase Date
until 5:00 p.m., New York City time, on the Business Day immediately
preceding such Purchase Date.  The
Purchase Notice must state:


 


(1)           if
Certificated Securities are to be delivered, the certificate numbers of the
Securities that the Holder shall deliver to be purchased;


 


(2)           the
portion of the principal amount of the Securities that the Holder shall deliver
to be purchased, which portion must be in principal amounts of $1,000 or an
integral multiple thereof; and


 


(3)           that such
Securities shall be purchased by the Company on the Purchase Date pursuant to
the terms and conditions specified in paragraph 6 of the Securities and in this
Indenture.


 


The delivery of such
Security to any Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by the Holder
of the Purchase Price; provided, however, that such Purchase Price shall be paid
pursuant to this Section 4.1 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof in the
related Purchase Notice.


 


The Company shall
purchase from the Holder thereof, pursuant to this Section 4.1, a portion
of a Security if the principal amount of such portion is $1,000 or an integral
multiple of


 


27





















 


$1,000.  Provisions of this Article 4 that apply
to the purchase of all of a Security also apply to the purchase of such portion
of such Security.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the Purchase
Notice contemplated by this Section 4.1(c) shall have the right to
withdraw such Purchase Notice at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding to the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 4.2.


 


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


 


(d)           Notwithstanding
anything herein to the contrary, in the case of Global Securities, any Purchase
Notice may be delivered or withdrawn and such Securities may be surrendered or
delivered for purchase in accordance with the Applicable Procedures.


 


Section 4.2             Effect of Purchase Notice


 


(a)           Upon
receipt by the Paying Agent of the Purchase Notice specified in Section 4.1(c),
the Holder of the Security in respect of which such Purchase Notice was given
shall (unless such Purchase Notice is withdrawn as specified below) thereafter
be entitled to receive solely the Purchase Price with respect to such
Security.  Such Purchase Price shall be
paid to such Holder promptly following the later of (x) the Purchase Date with
respect to such Security (provided the conditions in Section 4.1 have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 4.1.  Securities in respect of which a Purchase
Notice has been given by the Holder thereof may not be converted into shares of
Common Stock pursuant to Article 7 hereof on or after the date of the
delivery of such Purchase Notice, unless such Purchase Notice has first been
validly withdrawn in accordance with Section 7.1.


 


(b)           A
Purchase Notice may be withdrawn upon delivery of a written notice of
withdrawal (which may be delivered by mail, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance
with the Applicable Procedures) to a Paying Agent at any time prior 5:00 p.m.,
New York City time, on the Business Day immediately preceding the Purchase
Date, specifying:


 


(1)           if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted;


 


(2)           the
principal amount of the Securities in respect of which such notice of
withdrawal is being submitted; and


 


(3)           the
principal amount, if any, of the Securities that remains subject to the
original Purchase Notice and that has been or shall be delivered for purchase
by the Company.


 


28





















 


Section 4.3             Deposit of Purchase Price


 


(a)           Prior
to 10:00 a.m., New York City time, on the applicable Purchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or an Affiliate
is acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 2.4) an amount in cash (in immediately available funds if
deposited on such Purchase Date) sufficient to pay the aggregate Purchase Price
of all the Securities or portions thereof that are to be purchased on that
Purchase Date.


 


If a Paying Agent holds,
in accordance with the terms hereof, at 10:00 a.m., New York City time on
the applicable Purchase Date, cash sufficient to pay the Purchase Price of any
Security for which a Purchase Notice has been delivered and not validly
withdrawn in accordance with Section 4.2(b), then, immediately after such
Purchase Date, such Securities shall cease to be outstanding and interest on
such Securities shall cease to accrue, whether or not such Securities are
delivered by their Holders to the Paying Agent, and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Purchase
Price upon delivery of such Securities by their Holders to the Paying Agent).


 


Section 4.4             Securities Purchased in
Part


 


Any Certificated Security
that is to be purchased only in part shall be surrendered at the office of a
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing), and promptly after the Purchase Date, the Company shall
issue and the Trustee,
upon receipt of a Company Order (which the Company agrees to deliver promptly),
shall authenticate and deliver to the Holder of such Security, without service
charge, a new Security or Securities, of such authorized denomination or
denominations as may be requested by such Holder, in aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased.


 


Section 4.5             Repayment to the Company


 


To the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 4.3
exceeds the aggregate Purchase Price of the Securities or portions thereof that
the Company is obligated to purchase on the Purchase Date, then, promptly after
the Purchase Date, the Paying Agent shall return any such excess cash to the
Company.


 


Section 4.6             Compliance with Securities
Laws Upon Purchase of Securities


 


When complying with the
provisions of Section 4.1 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), and subject to any
exemptions available under applicable law, the Company shall:


 


(a)           comply
with Rule 13e-4, Rule 14e-1 and any other tender offer rules under
the Exchange Act that may then be applicable; and


 


29





















 


(b)           otherwise
comply with all federal and state securities laws so as to permit the rights
and obligations in connection with any purchase pursuant to Section 4.1 to
be exercised in the time and in the manner specified therein.


 


ARTICLE 5

PUT OPTION UPON FUNDAMENTAL CHANGE


 


Section 5.1             Purchase of Securities at
Option of the Holder upon a Fundamental Change


 


(a)           In
the event of a Fundamental Change at any time that Securities remain
outstanding, Securities shall be purchased by the Company, at the option of any
Holder thereof, in accordance with the provisions of paragraph 6 of the
Securities on the date that is not less than 20 nor more than 45 Business Days
after a Fundamental Change has become effective (the “Fundamental Change
Purchase Date”) at a purchase price in cash equal to 100% of the principal
amount of the Securities tendered for purchase, plus accrued and unpaid
interest to, but not including, the Fundamental Change Purchase Date (the
“Fundamental Change Purchase Price”), subject to satisfaction by or on behalf
of any Holder of the requirements set forth in Section 5.1(c).


 


A “Fundamental Change”
shall be deemed to have occurred if upon the occurrence of any of the following:


 


(1)           any
“person” or “group” (other than the Company, any Subsidiary of the Company or
any employee benefit plan of the Company or any of its Subsidiaries) files a Schedule 13D
or Schedule TO, or any successor schedule, form or report under the
Exchange Act, disclosing that such person is or has become the “beneficial
owner,” directly or indirectly, of shares of the Company’s Voting Stock
representing 50% or more of the total voting power of all outstanding classes
of the Company’s Voting Stock or has the power, directly or indirectly, to
elect a majority of the members of the Board of Directors of the Company;


 


(2)           the
Company consolidates with, or merges with or into, another Person or the
Company sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of the Company’s assets, or any Person consolidates with,
or merges with or into, the Company, in any such event other than pursuant to a
transaction in which the Persons that “beneficially owned,” directly or
indirectly, shares of the Company’s Voting Stock immediately prior to such
transaction beneficially own, directly or indirectly, shares of Voting Stock
representing a majority of the total voting power of all outstanding classes of
Voting Stock of the surviving or transferee person;


 


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


 


30





















 


(4)           the
Company’s Common Stock ceases to be listed on a national securities exchange or
quoted on The Nasdaq National Market or another established automated
over-the-counter trading market in the United States.


 


Notwithstanding anything
to the contrary set forth in this Section 5.1, a Fundamental Change shall
not be deemed to have occurred if, in the case of a merger or consolidation, at
least 90% of the consideration (excluding cash payments for fractional shares
and cash payments pursuant to dissenters’ appraisal rights) in the merger or
consolidation constituting the Fundamental Change consists of common stock
traded on a national securities exchange or quoted on The Nasdaq National
Market (or which shall be so traded or quoted when issued or exchanged in
connection with such Fundamental Change) and as a result of such transaction or
transactions the Securities become convertible solely into shares of such
common stock.


 


For purposes of this
section:


 


(5)           “person”
or “group” shall have the meanings given to them for purposes of Sections 13(d) and
14(d) of the Exchange Act or any successor provisions, and the term
“group” includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(l) under the
Exchange Act, or any successor provision;


 


(6)           a
“beneficial owner” shall be determined in accordance with Rule 13d-3 under
the Exchange Act, as in effect on the date of this Indenture;


 


(7)           “beneficially
own” and “beneficially owned” have meanings correlative to that of beneficial
owner;


 


(8)           “Continuing
Director” means, as of any date of determination, any member of the Company’s
Board of Directors who was a member of such Board of Directors on the date of
this Indenture; or was nominated for election or elected to such Board of
Directors with the approval of: (a) a majority of the Continuing Directors
who were members of such board at the time of such nomination or election or (b) a
nominating committee, a majority of which committee were Continuing Directors
at the time of such nomination or election;


 


(9)           “Voting
Stock” means any class or classes of Capital Stock or other interests then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of the Board of Directors; and


 


(10)         “Capital
Stock” means: (i) in the case of a corporation, corporate stock; (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; or (iv) any
other interest or participation that confers on a person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing person.


 


31





















 


(b)           Notice
of Fundamental Change.  Within 15
Business Days after a Fundamental Change has become effective, the Company
shall notify the Trustee of the Fundamental Change Purchase Date and shall mail
a written notice of the Fundamental Change (the “Fundamental Change Company
Notice”) to each Holder (and to beneficial owners as required by applicable
law) in accordance with Section 16.2. 
The notice shall include the form of a Fundamental Change Purchase
Notice to be completed by the Holder and shall state, as applicable:


 


(1)           the events
causing a Fundamental Change and the date of such Fundamental Change;


 


(2)           that the
Holder has a right to require the Company to purchase the Holder’s Securities;


 


(3)           the date
by which the Fundamental Change Purchase Notice must be delivered to the Paying
Agent in order for a Holder to exercise the Fundamental Change purchase right;


 


(4)           the
Fundamental Change Purchase Date;


 


(5)           the
Fundamental Change Purchase Price;


 


(6)           the
procedures that the Holder must follow to exercise its Fundamental Change
purchase right under this Section 5.1;


 


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


 


(8)           that the
Securities must be surrendered to the Paying Agent to collect payment of the
Fundamental Change Purchase Price;


 


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


 


(10)         the
conversion rights, if any, of the Securities arising as a result of such
Fundamental Change;


 


(11)         the current
Conversion Price and any adjustments to the Conversion Price that will result
from the Fundamental Change;


 


(12)         that the
Securities with respect to which a Fundamental Change Purchase Notice has been
given may be converted pursuant to Article 7 of this Indenture only if the
Fundamental Change Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;


 


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


 


32





















 


(14)         that, unless
the Company defaults in making payment of such Fundamental Change Purchase
Price, interest on Securities surrendered for purchase by the Company shall
cease to accrue on and after the Fundamental Change Purchase Price; and


 


(15)         the CUSIP
number(s) of the Securities.


 


If any of the Securities
is in the form of a Global Security, then the Company shall modify such notice
to the extent necessary to accord with the Applicable Procedures applicable to
repurchases.


 


At the Company’s request,
the Trustee shall give notice of such Fundamental Change on behalf of the
Company and at the Company’s expense; provided, however, that the
Company makes such request at least three Business Days (unless a shorter
period shall be satisfactory to the Trustee) prior to the date by which such
Fundamental Change Company Notice must be given to the Holders in accordance
with this Section 5.1(a)(6); provided  further, however, that the text of such notice shall be
prepared by the Company.


 


(c)           Fundamental
Change Purchase Notice.  A Holder may
exercise its right specified in Section 5.1(a) upon delivery of a
written notice (which shall be in substantially the form included in Exhibit A hereto and which may be
delivered by letter, overnight courier, hand delivery, facsimile transmission
or in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Applicable
Procedures) of the exercise of such rights (a “Fundamental Change Purchase
Notice”), to a Paying Agent at any time prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Fundamental Change Purchase
Date.  The Fundamental Change Purchase
Notice must state:


 


(1)           if
Certificated Securities are to be delivered, the certificate numbers of the
Securities that the Holder shall deliver to be purchased;


 


(2)           the
portion of the principal amount of the Securities that the Holder shall deliver
to be purchased, which portion must be in principal amounts of $1,000 or an
integral multiple thereof; and


 


(3)           that such
Securities shall be purchased by the Company on the Fundamental Change Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of the
Securities and in this Indenture.


 


The delivery of such
Security to any Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by the Holder
of the Fundamental Change Purchase Price; provided, however, that such
Fundamental Change Purchase Price shall be paid pursuant to this Section 5.1
only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Fundamental Change Purchase
Notice.


 


The Company shall
purchase from the Holder thereof, pursuant to this Section 5.1, a portion
of a Security if the principal amount of such portion is $1,000 or an integral
multiple of


 


33





















 


$1,000.  Provisions of this Article 5 that apply
to the purchase of all of a Security also apply to the purchase of such portion
of such Security.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Purchase Notice contemplated by this Section 5.1(c) shall
have the right to withdraw such Fundamental Change Purchase Notice at any time
prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 5.2.


 


A Paying Agent shall
promptly notify the Company of the receipt by it of any Fundamental Change
Purchase Notice or written notice of withdrawal thereof.


 


(d)           Notwithstanding
anything herein to the contrary, in the case of Global Securities, any
Fundamental Change Purchase Notice may be delivered or withdrawn and such
Securities may be surrendered or delivered for purchase in accordance with the
Applicable Procedures.


 


Section 5.2             Effect of Fundamental
Change Purchase Notice


 


(a)           Upon
receipt by any Paying Agent of the Fundamental Change Purchase Notice specified
in Section 5.1(c), the Holder of the Security in respect of which such
Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified below) thereafter be entitled
to receive the Fundamental Change Purchase Price with respect to such
Security.  Such Fundamental Change
Purchase Price shall be paid to such Holder promptly following the later of (i) the
Fundamental Change Purchase Date with respect to such Security (provided the
conditions in Section 5.1(c) have been satisfied) and (ii) the
time of delivery of such Security to a Paying Agent by the Holder thereof in
the manner required by Section 5.1(c). 
Securities in respect of which a Fundamental Change Purchase Notice has
been given by the Holder thereof may not be converted into shares of Common
Stock pursuant to Article 7 hereof on or after the date of the delivery of
such Fundamental Change Purchase Notice, unless such Fundamental Change
Purchase Notice has first been validly withdrawn in accordance with Section 5.2(b).


 


(b)           A
Fundamental Change Purchase Notice may be withdrawn upon delivery of a written
notice of withdrawal (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Applicable Procedures) to a Paying Agent at any time prior
to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Fundamental Change Purchase Date, specifying:


 


(1)           if
Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted;


 


(2)           the principal
amount of the Securities in respect of which such notice of withdrawal is being
submitted; and


 


34





















 


(3)           the
principal amount, if any, of the Securities that remains subject to the
original Fundamental Change Purchase Notice and that has been or shall be
delivered for purchase by the Company.


 


Section 5.3             Deposit of Fundamental
Change Purchase Price


 


Prior to 10:00 a.m.,
New York City time, on the Fundamental Change Purchase Date, the Company shall
deposit with the Paying Agent (or if the Company or an Affiliate is acting as
the Paying Agent, shall segregate and hold in trust as provided in Section 2.4)
an amount in cash (in immediately available funds if deposited on such
Fundamental Change Purchase Date) sufficient to pay the aggregate Fundamental
Change Purchase Price of all the Securities or portions thereof that are to be
purchased on that Fundamental Change Purchase Date.


 


If a Paying Agent holds,
in accordance with the terms hereof, at 10:00 a.m., New York City time, on
the applicable Fundamental Change Purchase Date, cash sufficient to pay the
Fundamental Change Purchase Price of any Security for which a Fundamental
Change Purchase Notice has been delivered and not validly withdrawn in
accordance with Section 5.2(b) of this Indenture, then, immediately
after such Fundamental Change Purchase Date, such Securities shall cease to be
outstanding and interest on such Securities shall cease to accrue, whether or
not such Securities are delivered to the Paying Agent, and the rights of the
Holders in respect thereof shall terminate (other than the right to receive the
Fundamental Change Purchase Price upon delivery of such Securities by their
Holders to the Paying Agent).


 


Section 5.4             Securities Purchased in Part


 


Any Certificated Security
that is to be purchased only in part shall be surrendered at the office of a
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing), and promptly after the Fundamental Change Purchase
Date, the Company shall issue and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver to the
Holder of such Security, without service charge, a new Security or Securities,
of such authorized denomination or denominations as may be requested by such
Holder, in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.


 


Section 5.5             Repayment to the Company


 


To the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 5.3
exceeds the aggregate Fundamental Change Purchase Price of the Securities or
portions thereof that the Company is obligated to purchase on the Fundamental
Change Purchase Date, then, promptly after the Fundamental Change Purchase
Date, the Paying Agent shall return any such excess cash to the Company.


 


Section 5.6             Compliance with Securities
Laws upon Purchase of Securities


 


When complying with the
provisions of Section 5.1 hereof (provided that such offer or purchase
constitutes an “issuer tender offer” for purposes of Rule 13e-4 (which
term, as used


 


35





















 


herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer
or purchase), and subject to any exemptions available under applicable law, the
Company shall:


 


(a)           comply
with Rule 13e-4, Rule 14e-1 and any other tender offer rules under
the Exchange Act that may then be applicable; and


 


(b)           otherwise
comply with all federal and state securities laws so as to permit the rights
and obligations in connection with any purchase pursuant to a Fundamental
Change to be exercised in the time and in the manner specified therein.


 


ARTICLE 6

MAKE-WHOLE PREMIUM


 


Section 6.1             Make-Whole Premium


 


(a)           If
a Fundamental Change occurs prior to December 20, 2009, the Company shall
pay the Make-Whole Premium to Holders of the Securities who convert their
Securities in connection with a Fundamental Change.  The Make-Whole Premium shall be paid on the
Fundamental Change Purchase Date and shall be paid solely in shares of the
Common Stock (other than cash paid in lieu of fractional shares) or in the same
form of consideration into which all or substantially all of the shares of
Common Stock have been converted or exchanged in connection with the
Fundamental Change, as described below. 
The Make-Whole Premium shall be equal to a percentage (the “Additional
Premium”) of the principal amount of the Securities.  The Make-Whole Premium will be in addition
to, and not in substitution for, any cash, securities or other assets otherwise
due to Holders of Securities upon conversion as described in this Indenture.


 


(b)           The
Make-Whole Premium shall be determined by reference to the Additional Premium
Table and is based on the Effective Date and the Stock Price.


 


(i)            “Effective
Date” means the date that a Fundamental Change becomes effective.


 


(ii)           “Stock
Price” means the price paid (or deemed to be paid) per share of Common Stock in
the transaction constituting the Fundamental Change, determined as follows:


 


(1)           if holders
of the Common Stock receive only cash in the Fundamental Change, the Stock
Price shall be the cash amount paid per share of Common Stock; or


 


(2)           otherwise,
the Stock Price shall be the average Closing Sale Price of the Common Stock for
the 10 Trading Days immediately preceding, but not including, the Effective
Date.


 


36





















 


(iii)          Additional
Premium means, with respect to each of the Securities, the percentage set forth
on the table below (the “Additional Premium Table”) for the Stock Price and the
Effective Date:


 


Additional Premium Applicable to the Securities Upon
Fundamental Change

(Percentage of Principal Amount)


 


	
   

  	
   

  	
  Fundamental Change Date

  	
   

  
	
  Stock Price

  	
   

  	
  12/17/2004

  	
   

  	
  12/15/2005

  	
   

  	
  12/15/2006

  	
   

  	
  12/15/2007

  	
   

  	
  12/15/2008

  	
   

  	
  12/20/2009

  	
   

  
	
  $

  	
  52.25

  	
   

  	
  28.6

  	
  %

  	
  28.6

  	
  %

  	
  28.6

  	
  %

  	
  28.6

  	
  %

  	
  28.6

  	
  %

  	
  28.6

  	
  %

  
	
  55.00

  	
   

  	
  27.2

  	
   

  	
  26.2

  	
   

  	
  25.2

  	
   

  	
  24.8

  	
   

  	
  24.8

  	
   

  	
  24.8

  	
   

  
	
  60.00

  	
   

  	
  24.8

  	
   

  	
  23.5

  	
   

  	
  22.0

  	
   

  	
  20.3

  	
   

  	
  18.1

  	
   

  	
  18.0

  	
   

  
	
  65.00

  	
   

  	
  22.8

  	
   

  	
  21.2

  	
   

  	
  19.4

  	
   

  	
  17.1

  	
   

  	
  14.1

  	
   

  	
  12.2

  	
   

  
	
  70.00

  	
   

  	
  21.2

  	
   

  	
  19.3

  	
   

  	
  17.2

  	
   

  	
  14.5

  	
   

  	
  10.9

  	
   

  	
  4.5

  	
   

  
	
  75.00

  	
   

  	
  19.8

  	
   

  	
  17.8

  	
   

  	
  15.4

  	
   

  	
  12.4

  	
   

  	
  8.5

  	
   

  	
  0.0

  	
   

  
	
  80.00

  	
   

  	
  18.7

  	
   

  	
  16.5

  	
   

  	
  13.9

  	
   

  	
  10.8

  	
   

  	
  6.6

  	
   

  	
  0.0

  	
   

  
	
  85.00

  	
   

  	
  17.7

  	
   

  	
  15.4

  	
   

  	
  12.7

  	
   

  	
  9.5

  	
   

  	
  5.4

  	
   

  	
  0.0

  	
   

  
	
  90.00

  	
   

  	
  16.9

  	
   

  	
  14.5

  	
   

  	
  11.8

  	
   

  	
  8.5

  	
   

  	
  4.5

  	
   

  	
  0.0

  	
   

  
	
  95.00

  	
   

  	
  16.3

  	
   

  	
  13.8

  	
   

  	
  11.0

  	
   

  	
  7.7

  	
   

  	
  3.9

  	
   

  	
  0.0

  	
   

  
	
  100.00

  	
   

  	
  15.6

  	
   

  	
  13.2

  	
   

  	
  10.4

  	
   

  	
  7.1

  	
   

  	
  3.5

  	
   

  	
  0.0

  	
   

  
	
  105.00

  	
   

  	
  15.2

  	
   

  	
  12.7

  	
   

  	
  9.9

  	
   

  	
  6.7

  	
   

  	
  3.2

  	
   

  	
  0.0

  	
   

  
	
  110.00

  	
   

  	
  14.8

  	
   

  	
  12.3

  	
   

  	
  9.5

  	
   

  	
  6.4

  	
   

  	
  3.0

  	
   

  	
  0.0

  	
   

  
	
  115.00

  	
   

  	
  14.5

  	
   

  	
  12.0

  	
   

  	
  9.2

  	
   

  	
  6.1

  	
   

  	
  2.9

  	
   

  	
  0.0

  	
   

  
	
  120.00

  	
   

  	
  14.2

  	
   

  	
  11.7

  	
   

  	
  8.9

  	
   

  	
  6.0

  	
   

  	
  2.9

  	
   

  	
  0.0

  	
   

  
	
  130.00

  	
   

  	
  13.7

  	
   

  	
  11.3

  	
   

  	
  8.6

  	
   

  	
  5.7

  	
   

  	
  2.8

  	
   

  	
  0.0

  	
   

  
	
  140.00

  	
   

  	
  13.4

  	
   

  	
  11.0

  	
   

  	
  8.4

  	
   

  	
  5.6

  	
   

  	
  2.8

  	
   

  	
  0.0

  	
   

  
	
  150.00

  	
   

  	
  13.2

  	
   

  	
  10.8

  	
   

  	
  8.2

  	
   

  	
  5.5

  	
   

  	
  2.8

  	
   

  	
  0.0

  	
   

  
															



 


The exact Stock Price and
Effective Dates may not be set forth on the Additional Premium Table, in which
case, if the Stock Price is between two Stock Prices on the Additional Premium
Table or the Effective Date is between two Effective Dates on the Additional
Premium Table, the Additional Premium shall be determined by straight-line
interpolation between Additional Premium amounts set forth for the higher and
lower Stock Prices and the two Effective Dates, as applicable, based on a 365-day
year.  The Stock Prices set forth in the
first column of the Additional Premium Table are subject to adjustment in
accordance with Section 6.2.


 


(iv)          “Make-Whole
Premium” means the amount per $1,000 principal amount of Securities equal to:


 


(1)           if the
Effective Date is on or after December 20, 2009, $0;


 


(2)           if the
Stock Price is less than or equal to $52.25 (subject to adjustment in accordance
with to Section 6.2) (the “Stock Price Threshold”), $0;


 


37





















 


(3)           if the
Stock Price is in excess of $150.00 (subject to adjustment in accordance with Section 6.2)
(the “Stock Price Cap”), the payment corresponding to the row captioned $150.00
in the Additional Premium Table; and


 


(4)           otherwise,
the dollar amount equal to the Additional Premium in the Additional Premium
Table times $1,000 divided by 100.


 


(c)           The
Company shall pay the Make-Whole Premium solely in shares of Common Stock
(other than cash paid in lieu of fractional shares) or in the same form of
consideration into which all or substantially all of the shares of Common Stock
have been converted or exchanged in connection with the Fundamental Change; provided, however, that the Company will pay cash in lieu of
fractional interests in any security or other property delivered in connection
with such Fundamental Change.  If
holders of the Common Stock receive or have the right to receive more than one
form of consideration in connection with such Fundamental Change, then, for
purposes of the foregoing, the forms of consideration in which the Make-Whole
Premium shall be paid shall be in proportion to the relative value, determined
in accordance with Section 6.1(d), of the different forms of consideration
paid to holders of Common Stock in connection with such Fundamental Change.


 


(d)           The
value of the shares of Common Stock or other consideration for purposes of
determining the number of shares of Common Stock or other consideration to be
issued or delivered, as the case may be, in respect of the Make-Whole Premium
shall be calculated as follows:


 


(i)            in the
case of a Fundamental Change in which all or substantially all of the shares of
Common Stock have been, as of the Effective Date, converted into or exchanged
for the right to receive securities or other assets or property (including
cash), the consideration shall be valued as follows:


 


(1)           securities
that are traded on a U.S.  national
securities exchange or approved for quotation on Nasdaq or any similar system
of automated dissemination of quotations of securities prices shall be valued
at 98% of the average Closing Sale Price for the 10 Trading Days immediately
prior to but excluding the Fundamental Change Purchase Date,


 


(2)           other
securities, assets or property (other than cash) that holders will have the
right to receive shall be valued based on 98% of the average of the fair market
value of such securities, assets or property (other than cash) as determined on
the Business Day immediately prior to the Fundamental Change Purchase Date by
two independent nationally recognized investment banks selected by the Trustee,
and


 


(3)           100% of
any cash.


 


(ii)           in all
other cases, the value of each share of Common Stock shall equal 98% of the
average Closing Sale Price of the Common Stock for the 10 consecutive Trading
Days prior to but excluding the Fundamental Change Purchase Date.


 


38





















 


Notwithstanding the foregoing,
in no event shall the value of each share of Common Stock be less than 50% of
the Stock Price used to determine the amount of the Make-Whole Premium.


 


(e)           A
Calculation Agent appointed from time to time by the Company shall, on behalf
of and on request by the Company, calculate (A) the Stock Price and (B) the
Additional Premium and Make-Whole Premium with respect to such Stock Price,
based on the Effective Date specified by the Company, and shall deliver its
calculation of the Stock Price, Additional Premium and Make-Whole Premium to
the Company and the Trustee within three Business Days of the request by the
Company or the Trustee.  In addition, the
Calculation Agent shall, on behalf of and upon request by the Company or the
Trustee, make the determinations described in Section 6.1(d) above
and deliver its calculations to the Company or the Trustee by 9:00 p.m.,
New York City time, on the Business Day prior to the Fundamental Change
Purchase Date.  The Company or, at the
Company’s request, the Trustee, in the name and at the expense of the Company,
(x) shall notify the Holders of the Stock Price and Make-Whole Premium per
$1,000 principal amount of Securities with respect to a Fundamental Change as
part of the Fundamental Change Purchase Notice and (y) shall notify the
Holders, by registered first-class mail, promptly upon the opening of business
on the Fundamental Change Purchase Date of the number of shares of Common Stock
(or such other securities, assets or property (including cash) into which all or
substantially all of the shares of Common Stock have been converted as of the
Effective Date as described above) to be paid in respect of the Make-Whole
Premium in connection with such Fundamental Change, in the manner provided in
this Indenture.  Any notice so given
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.  The Company
shall verify, in writing, to the Trustee all calculations made by the
Calculation Agent pursuant to this Section 6.1(e).  A Calculation
Agent shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.  The Trustee
shall not be responsible for any of the aforementioned calculations and shall
be entitled to rely on an Officer’s Certificate with respect to the same.


 


(f)            On
or prior to the Fundamental Change Purchase Date, the Company shall deposit
with the Trustee or with one or more Paying Agents (or, if the Company or an
Affiliate or Subsidiary of the Company is acting as the Paying Agent, set aside,
segregate and hold in trust) an amount of shares of Common Stock (or, in the
case of a Fundamental Change in which all or substantially all of the shares of
Common Stock have been, as of the Effective Date, converted into or exchanged
for the right to receive securities or other assets or property (including
cash), an amount of such other securities or other assets or property
(including cash)) sufficient to pay the Make-Whole Premium with respect to all
the Securities converted in connection with such Fundamental Change; provided, however, that, if such payment
is made on the Fundamental Change Purchase Date, it must be received by the
Trustee or Paying Agent, as the case may be, by 10:00 a.m., New York City
time, on that Fundamental Change Purchase Date. 
Payment of the Make-Whole Premium for Securities surrendered for
conversion within the period described in Section 5.1 shall be made
promptly on the Fundamental Change Purchase Date by mailing checks in respect
of cash and otherwise delivering entitlements to securities, other assets or
property for the amount payable to the Holders of such Securities entitled
thereto as they shall appear in the Register.


 


39





















 


Section 6.2             Adjustments Relating to
Make-Whole Premium


 


Whenever the Conversion
Price shall be adjusted from time to time by the Company pursuant to Section 7.6,
the Stock Price Threshold and the Stock Price Cap shall be adjusted and each of
the Stock Prices set forth in the Additional Premium Table shall be
adjusted.  The adjusted Stock Price
Threshold, Stock Price Cap and Stock Prices set forth in the Additional Premium
Table shall equal the Stock Price Threshold, Stock Price Cap and such Stock
Prices, as the case may be, applicable immediately prior to such adjustment
multiplied by a fraction, the numerator of which is the adjusted Conversion
Price and the denominator of which is the Conversion Price immediately prior to
the adjustment giving rise to such adjustment.


 


ARTICLE 7

CONVERSION


 


Section 7.1             Conversion Privilege


 


Subject to the further
provisions of this Article 7, including Section 7.14, and paragraph 7
of the Securities, a Holder of a Security may convert the principal amount of
such Security (or any portion thereof equal to $1,000 principal amount or an
integral multiple of $1,000 principal amount in excess thereof) into Common
Stock at any time prior to 5:00 p.m., New York City time, on the Business
Day immediately preceding the Final Maturity Date, at the Conversion Price then
in effect; provided, however, that, if such Security is called
for redemption pursuant to Article 3 or submitted or presented for
purchase pursuant to Article 4 or 5, such conversion right shall terminate
at the close of business on the second Trading Day immediately preceding the
Redemption Date, Purchase Date or Fundamental Change Purchase Date, as the case
may be, for such Security or such earlier date as the Holder presents such
Security for redemption or for purchase (unless the Company shall default in
paying the Redemption Price, Purchase Price or Fundamental Change Purchase
Price when due, in which case the conversion right shall terminate at 5:00 p.m.,
New York City time, on the date such default is cured and such Security is
redeemed or purchased, as the case may be).


 


Provisions of this
Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.


 


A Security in respect of
which a Holder has delivered a Fundamental Change Purchase Notice pursuant to Section 5.1(c) exercising
the option of such Holder to require the Company to purchase such Security may
be converted only if such Fundamental Change Purchase Notice is withdrawn by a
written notice of withdrawal delivered to a Paying Agent prior to 5:00 p.m.,
New York City time, on the second Trading Day immediately preceding the
Fundamental Change Purchase Date in accordance with Section 5.2.  A Security in respect of which a Holder has
delivered a Purchase Notice pursuant to Section 4.1(c) exercising the
option of such Holder to require the Company to purchase such Security may be
converted only if such Put Right Purchase Notice is withdrawn by a written
notice of withdrawal delivered to a Paying Agent prior to 5:00 p.m., New
York City time, on the second Business Day immediately preceding the Put Right
Purchase Date in accordance with Section 4.2.


 


40





















 


Securities delivered for
conversion will be deemed to have been converted at immediately prior to 5:00 p.m.
on the Conversion Date.  A Holder of
Securities is not entitled to any rights of a holder of Common Stock until such
Holder has converted its Securities to Common Stock and only to the extent such
Securities are deemed to have been converted into Common Stock pursuant to this
Article 7.


 


Section 7.2             Conversion Procedure


 


(a)           The
right of conversion attaching to any Security may be exercised (i) if such
Security is represented by a Global Security, by book-entry transfer to the
Conversion Agent through the facilities of the Depositary in accordance with
the Applicable Procedures, or (ii) if such Security is represented by a
Certificated Security, by delivery of such Security at the specified office of
the Conversion Agent, accompanied, in either case, by: (1) a duly signed
and completed conversion notice, in the form as set forth on the reverse of
Security attached hereto as Exhibit A (a “Conversion Notice”); (2) if
such Certificated Security has been lost, stolen, destroyed or mutilated, a
notice to the Conversion Agent in accordance with Section 2.7 regarding
the loss, theft, destruction or mutilation of the Security; (3) appropriate
endorsements and transfer documents if required by the Conversion Agent; and (4) payment
of any tax or duty, in accordance with Section 7.4, which may be payable
in respect of any transfer involving the issue or delivery of the Common Stock
in the name of a Person other than the Holder of the Security.  The date on which the Holder satisfies all of
those requirements is the “Conversion Date.” 
The Company shall deliver to the Holder through a Conversion Agent a
certificate for the number of whole shares of Common Stock issuable upon the
conversion and cash in lieu of any fractional shares pursuant to Section 7.3
as soon as practicable after the Company issues the notification of its elected
settlement method in accordance with Section 7.14, but in no event later
than the fifth Business Day following the applicable Conversion Date.


 


(b)           The
person in whose name the Common Stock certificate is registered shall be deemed
to be a stockholder of record on the Conversion Date; provided, however, that no surrender of a
Security on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the person or persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall
be effective to constitute the person or persons entitled to receive such shares
of Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided  further,
however, that such conversion shall be at the Conversion Price in effect
for the date on which such Security was delivered as if the stock transfer
books of the Company had not been closed. 
Upon conversion of a Security, such person shall no longer be a Holder
of such Security.  No separate payment or
adjustment will be made for accrued and unpaid interest on a converted Security
or for dividends or distributions on shares of Common Stock issued upon
conversion of a Security except as provided in this Indenture.


 


(c)           Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder, a new Security
equal in principal amount to the unconverted portion of the Security
surrendered.


 


41





















 


Section 7.3             Fractional Shares


 


The Company will not
issue fractional shares of Common Stock upon conversion of Securities.  In lieu thereof, the Company will deliver a
number of shares of Common Stock equal to the aggregate of the fractional shares
otherwise deliverable for each Trading Day during the Conversion Period
(rounding down to the nearest whole number) and pay an amount in cash for the
“current market value” of the remaining fractional shares.  The “current market value” of a fractional
share shall be determined (calculated to the nearest 1/1000th of a
share) by multiplying the Volume-Weighted Average Price of the Common Stock on
the tenth Trading Day immediately following the Conversion Date by such
fractional share and rounding the product to the nearest whole cent.


 


Section 7.4             Taxes on Conversion


 


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


 


Section 7.5             Company to Provide Stock


 


(a)           The
Company shall, prior to the issuance of any Securities hereunder, and from time
to time as may be necessary, reserve at all times and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock deliverable upon conversion of all
of the Securities.


 


(b)           All
shares of Common Stock that may be issued upon conversion of the Securities
shall be newly issued shares or shares held in the treasury of the Company,
shall be duly authorized, validly issued, fully paid and nonassessable and
shall be free of any preemptive rights and free of any lien or adverse claim.


 


(c)           The
Company shall endeavor to comply with all applicable securities laws regulating
the offer and delivery of any Common Stock upon conversion of Securities and
shall list or cause to have quoted such shares of Common Stock on each national
and regional securities exchange or on Nasdaq or other markets or such other
market on which the Common Stock is then listed or quoted; provided, however,
that, if the rules of such automated quotation system or exchange permit
the Company to defer the listing of such Common Stock until the first
conversion of the Securities into Common Stock in accordance with the
provisions of this Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Securities in accordance with the requirements
of such automated quotation system or exchange at such time.  Any Common Stock issued upon conversion of a
Security hereunder which at the time of conversion was a Restricted Security
shall also be a Restricted Security.


 


42





















 


(d)           Notwithstanding
anything herein to the contrary, nothing herein shall give to any Holder any
rights as a creditor in respect of its right to conversion.


 


Section 7.6             Adjustment of Conversion
Price


 


The Conversion Price
shall be adjusted from time to time by the Company as follows:


 


(a)           In
case the Company shall (i) issue shares of its Common Stock as a dividend
or distribution on its Common Stock or (ii) subdivide or combine its
outstanding Common Stock, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares
of Common Stock which it would have received had such Security been converted immediately
prior to the record date of such event or the happening of such event (assuming
such Security were convertible solely into shares of Common Stock, based on the
relevant Conversion Price, rather than cash or cash and Common Stock as set
forth in Section 7.14).  An
adjustment made pursuant to this subsection (a) shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination.


 


(b)           In
case the Company shall issue rights or warrants to all or substantially all
holders of its Common Stock entitling them (for a period of not more than 60
days) to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share (or a conversion price per share) less
than the Current Market Price per share of Common Stock (as determined in
accordance with subsection (d) of this Section 7.6), the
Conversion Price in effect immediately prior to the record date for the
issuance shall be adjusted so that the Conversion Price shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding (excluding shares held in the treasury of
the Company) on such record date plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered (or the
aggregate conversion price of the convertible securities so offered, which
shall be determined by multiplying the number of shares of Common Stock
issuable upon conversion of such convertible securities by the conversion price
per share of Common Stock pursuant to the terms of such convertible securities)
would purchase at the Current Market Price per share (as defined in subsection (d) of
this Section 7.6) of Common Stock on such record date, and of which the
denominator shall be the number of shares of Common Stock outstanding
(excluding shares held in the treasury of the Company) on such record date plus
the number of additional shares of Common Stock offered (or into which the
convertible securities so offered are convertible).  Such adjustment shall be made successively
whenever any such rights or warrants are issued and shall become effective
immediately after such record date.  If
at the end of the period during which such rights or warrants are exercisable
not all rights or warrants shall have been exercised, the adjusted Conversion
Price shall be immediately readjusted to what it would have been based upon the
number of additional shares of Common Stock actually issued (or the number of
shares of Common Stock issuable upon conversion of convertible securities actually
issued).


 


(c)           In
case the Company shall distribute to all or substantially all holders of its
Common Stock any shares of capital stock of the Company, evidences of
indebtedness or other


 


43





















 


non-cash assets, or
rights or warrants (excluding (i) dividends, distributions and rights or
warrants referred to in subsection (a) or (b) of this Section 7.6,
and (ii) the distribution of rights to all holders of Common Stock
pursuant to an adoption of a Rights Plan (as defined below)), the Conversion
Price in effect immediately prior to the record date for the distribution shall
be adjusted so that the Conversion Price shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to such record
date by a fraction of which the numerator shall be the Current Market Price per
share (as defined in subsection (d) of this Section 7.6) of the
Common Stock on the record date mentioned below less the fair market value on
such record date (as determined by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value and which shall be
evidenced by an Officer’s Certificate delivered to the Trustee) of the portion
of the capital stock, evidences of indebtedness or other non-cash assets so
distributed or of such rights or warrants applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the record date), and of which the denominator shall be the
Current Market Price per share of the Common Stock on such record date; provided, however, that, in the event the
then fair market value (as so determined) of the portion of the capital stock,
evidences of indebtedness or other non-cash assets so distributed or of such
rights or warrants applicable to one share of Common Stock is equal to or
greater than the Current Market Price per share of the Common Stock on such
record date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion the
amount of capital stock, evidences of indebtedness or other non-cash assets so
distributed or of such rights or warrants such holder would have received had
such holder converted each Security on such record date.  .  Such
adjustment shall be made successively whenever any such distribution is made
and shall become effective immediately after such record date.


 


In the event that such
dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.  If the Board of Directors of the Company
determines the fair market value of any distribution for purposes of this Section 7.6(c) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used
in computing the Current Market Price per share of Common Stock.


 


In the event that the
Company implements a preferred shares rights plan (“Rights Plan”), upon
conversion of the Securities into Common Stock, to the extent that the Rights
Plan has been implemented and is still in effect upon such conversion, the
holders of Securities will receive, in addition to the Common Stock, the rights
described in such Rights Plan (whether or not the rights have separated from
the Common Stock at the time of conversion), subject to the limitations set
forth in the Rights Plan.  Any
distribution of rights or warrants pursuant to a Rights Plan complying with the
requirements set forth in the immediately preceding sentence of this paragraph
shall not constitute a distribution of rights or warrants pursuant to this Section 7.6(c).


 


Rights or warrants
distributed by the Company to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Company’s Capital Stock
(either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events (“Trigger Event”) (i) are
deemed to be transferred with such shares of


 


44





















 


Common Stock, (ii) are
not exercisable, and (iii) are also issued in respect of future issuances
of Common Stock, shall be deemed not to have been distributed for purposes of
this Section 7.6 (and no adjustment to the Conversion Price under this Section 7.6
will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Price shall be
made under this Section 7.6(c).  If
any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon
the occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof).  In addition, in the event of any distribution
(or deemed distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Price under this Section 7.6 was made, (1) in
the case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Price shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or repurchase, and (2) in
the case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Price shall be
readjusted as if such rights and warrants had not been issued.


 


In case the Company shall
make any dividend or distribution to all or substantially all holders of its
Common Stock (other than in connection with a liquidation, dissolution or
winding up of the Company) consisting exclusively of cash (a “Triggering
Distribution”), the Conversion Price shall be reduced so that the same shall
equal the price determined by dividing the Conversion Price in effect on the
record date with respect to such cash dividend or distribution by a fraction,
the numerator of which shall be the Current Market Price per share of the
Common Stock as of the day before the “ex” date (as defined in Section 7.6(d) below)
with respect to the dividend or distribution, and the denominator of which
shall be such Current Market Price per share of the Common Stock as of the day
before the “ex” date with respect to the dividend or distribution less the
amount per share of the cash dividend or distribution, such decrease to become
effective immediately prior to the opening of business on the day following the
date on which the Triggering Distribution is paid; provided, however,
that, in the event the portion of the Triggering Distribution applicable to one
share of Common Stock is equal to or greater than the Current Market Price per
share of Common Stock on such record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each Security on such record date.  In the event that such dividend or distribution
is not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.


 


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In case of the purchase
of the Company’s Common Stock pursuant to a tender offer made by the Company or
any of its Subsidiaries for Common Stock at a price per share in excess of the
Current Market Price per share of Common Stock on the last date tenders may be
made pursuant to such tender offer (the “Expiration Date”), then, immediately
prior to the opening of business on the day after the Expiration Date, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to the
close of business on the Expiration Date by a fraction, the numerator of which
shall be the product of the number of shares of Common Stock outstanding
(including tendered shares but excluding any shares held in the treasury of the
Company) on the Expiration Date multiplied by the Current Market Price per
share of the Common Stock on the Trading Day next succeeding the Expiration
Date and the denominator of which shall be the sum of (x) the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Date (the “Purchased Shares”)
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Date and the Current Market Price per share of
Common Stock on the Trading Day next succeeding the Expiration Date, such
reduction to become effective immediately prior to the opening of business on
the day following the Expiration Date. 
In the event that the Company is obligated to purchase shares pursuant
to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of
shares actually purchased.  If the
application of this paragraph to any tender offer would result in an increase
in the Conversion Price, no adjustment shall be made for such tender offer
under this paragraph.


 


For purposes of this Section 7.6(c),
the term “tender offer” shall mean and include both tender offers and exchange
offers, all references to “purchases” of shares in tender offers (and all
similar references) shall mean and include both the purchase of shares in
tender offers and the acquisition of shares pursuant to exchange offers, and
all references to “tendered shares” (and all similar references) shall mean and
include shares tendered in both tender offers and exchange offers.


 


(d)           For
the purpose of any computation under subsections (b) and (c) of this Section 7.6,
the current market price (the “Current Market Price”) shall mean with respect
to any date of determination, the average of the Closing Sale Price per share
of Common Stock for the five consecutive Trading Days ending on the date of
determination.  For purposes hereof, the
term “ex” date, when used with respect to any dividend or distribution, means
the first date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Closing Sale Price was
obtained without the right to receive such dividend or distribution.


 


(e)           In
any case in which this Section 7.6 shall require that an adjustment be
made following a record date or Expiration Date, as the case may be,
established for purposes of this Section 7.6, the Company may elect to
defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 7.9) issuing to
the Holder of any Security converted after such record date or Expiration Date
the shares of


 


46





















 


Common Stock and other
capital stock of the Company, evidences of indebtedness or other non-cash
assets or rights or warrants issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company, evidences of
indebtedness or other non-cash assets or rights or warrants issuable, or cash
payable, upon such conversion only on the basis of the Conversion Price prior
to adjustment; and, in lieu of the shares, evidences of indebtedness or other
non-cash assets or rights or warrants the issuance of which, or cash the
payment of which, is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares or cash, as the case may be.  If any distribution in respect of which an
adjustment to the Conversion Price is required to be made as of the record date
or Expiration Date therefor is not thereafter made or paid by the Company for
any reason, the Conversion Price shall be readjusted to the Conversion Price
which would then be in effect if such record date had not been fixed or such
effective date or Expiration Date had not occurred.


 


Section 7.7             No Adjustment


 


No adjustment in the
Conversion Price shall be required unless the adjustment would result in a
change in the Conversion Price of at least 1%; provided,
however, that any adjustment
which by reason of this Section 7.7 is not required to be made shall be
carried forward and taken into account in subsequent adjustments.  All calculations under this Article 7
shall be made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be.


 


Except as otherwise
provided for in this Indenture, the Company shall not be required to adjust the
Conversion Price for the issuance of its Common Stock or any securities
convertible or exchangeable for its Common Stock or the right to purchase its
Common Stock or such convertible or exchangeable securities.


 


No adjustment need be
made for issuances of Common Stock pursuant to a Company plan for reinvestment
of dividends or interest or for a change in the par value or a change to no par
value of the Common Stock.


 


To the extent that the
Securities become convertible into the right to receive cash, no adjustment
need be made thereafter as to the cash. 
Interest will not accrue on the cash.


 


Section 7.8             Adjustment for Tax
Purposes


 


The Company shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by Section 7.6, as it in its discretion shall determine to be
advisable in order to avoid or diminish any tax to stockholders in connection
with any stock dividends, subdivisions of shares, distributions of rights to
purchase stock or securities or distributions of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders.


 


Section 7.9             Notice of Adjustment


 


Whenever the Conversion
Price or conversion privilege is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment in accordance with Section 16.2,
and file with the Trustee an Officer’s Certificate briefly stating the facts
requiring the adjustment and


 


47





















 


the manner of computing
it.  Unless and until the Trustee shall
receive an Officer’s Certificate setting forth an adjustment of the Conversion
Price, the Trustee may assume without inquiry that the Conversion Price has not
been adjusted and that the last Conversion Price of which it has knowledge
remains in effect.


 


Section 7.10           Notice of Certain
Transactions


 


If not otherwise required
in connection with a Fundamental Change, in the event that:


 


(a)           the
Company takes any action which would require an adjustment in the Conversion
Price;


 


(b)           the
Company consolidates or merges with, or transfers all or substantially all of
its property and assets to, another corporation and stockholders of the Company
must approve the transaction; or


 


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


 


the Company shall
mail to Holders and file with the Trustee a notice stating the proposed record
or effective date, as the case may be. 
The Company shall mail the notice at least ten days before such date.  Failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause
(a), (b) or (c) of this Section 7.10.


 


Section 7.11           Effect of
Reclassification, Consolidation, Merger or Sale on Conversion Privilege


 


In the event of: (a) any
reclassification of the Company’s Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination, or any other change for which an
adjustment is provided in Section 7.6); (b) a consolidation, merger
or combination involving the Company other than a merger in which the Company
is the continuing corporation and which does not result in any reclassification
of, or change (other than in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of Common Stock; or (c) a sale or conveyance as an
entirety or substantially as an entirety of the property and assets of the
Company, directly or indirectly, to another Person, then the Company, or such
successor, purchasing or transferee Person, as the case may be, shall, as a
condition precedent to such reclassification, change, combination,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into cash and, with
respect to the portion of the Company’s obligation to settle upon conversion in
excess (if any) of the principal amount of Securities being converted, the kind
and amount of shares of stock and other securities and property (including
cash) receivable upon such reclassification, change, combination,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock deliverable upon conversion of such Security immediately prior
to such reclassification, change, combination, consolidation, merger, sale or
conveyance.  Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article 7.  If,
in the case of any such consolidation, merger, combination, sale or


 


48





















 


conveyance, the stock or
other securities and property (including cash) receivable thereupon by a holder
of Common Stock include shares of stock or other securities and property of a
Person other than the successor, purchasing or transferee Person, as the case
may be, in such consolidation, merger, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other Person and
shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing.  The provisions of this Section 7.11
shall similarly apply to successive reclassifications, changes, combinations,
consolidations, mergers, sales or conveyances.


 


In the event the Company
shall execute a supplemental indenture pursuant to this Section 7.11, the
Company shall promptly file with the Trustee (x) an Officer’s Certificate
briefly stating the reasons therefor, the kind or amount of shares of stock or
other securities or property (including cash) receivable by Holders of the
Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or conveyance,
any adjustment to be made with respect thereto and that all conditions
precedent have been satisfied and (y) an Opinion of Counsel that all conditions
precedent have been satisfied, and shall promptly mail notice thereof to all
Holders.


 


Section 7.12           Trustee’s Disclaimer


 


The Trustee shall have no
duty to determine when an adjustment under this Article 7 should be made,
how it should be made or what such adjustment should be, but may accept as
conclusive evidence of that fact or the correctness of any such adjustment, and
shall be protected in relying upon, an Officer’s Certificate, including the
Officer’s Certificate with respect thereto which the Company is obligated to
file with the Trustee pursuant to Section 7.9.  The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company’s failure
to comply with any provisions of this Article 7.


 


The Trustee shall not be
under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 7.11,
but may accept as conclusive evidence of the correctness thereof, and shall be
fully protected in relying upon, the Officer’s Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to Section 7.11.


 


Section 7.13           [Reserved]


 


Section 7.14           Option to Satisfy
Conversion Obligation with Cash, Common Stock or Combination Thereof


 


(a)           In
lieu of delivery of shares of Common Stock upon receipt of a Conversion Notice,
the Company may, in its discretion, elect to settle the conversion obligation
relating to the principal amount of such Security either in cash or a
combination of cash and Common Stock, subject to limitations on foreign
ownership of Common Stock set out in Section 7.16 and paragraph 7 of the
Securities.  Unless the Company shall
have already informed Holders of its election to deliver shares of Common
Stock, cash or a combination of cash and shares of


 


49





















 


Common Stock in
connection with a Redemption Notice pursuant to Article 3, the Company
shall, no later than the date that is three Trading Days following receipt of a
Conversion Notice, notify in writing all Holders exercising conversion rights
of the Company’s chosen method of settlement pursuant to this Section 7.14(a) (the
“Settlement Method Notice”) in accordance with Section 16.2.


 


(b)           Settlement
of the Company’s entire conversion obligation in Common Stock only shall occur
in accordance with Sections 7.1 and 7.2, and shall be delivered through the
Conversion Agent no later than the fifth Business Day following the applicable
Conversion Date.  Settlement in cash or
in a combination of cash and Common Stock shall, subject to Section 7.14(d),
occur no later than the 20th Business Day following the applicable Conversion
Date unless the Holder submits its Conversion Notice within 30 Trading Days
prior to the Final Maturity Date, in which case such settlement shall occur on
the Final Maturity Date.


 


(c)           If
the Company elects to settle the conversion obligation in a combination of cash
and Common Stock, the Company shall specify in the Settlement Method Notice the
percentage of the obligation to be settled in cash.  The Company shall treat all Holders
converting on the same Trading Day in the same manner and the Company shall not
have any obligation to settle its obligations upon conversion arising on different
Trading Days in the same manner.


 


Settlement amounts for
all cash or a combination of cash and Common Stock shall be computed as
follows:


 


(i)            if the
Company elects to satisfy its entire conversion obligation in cash, the Company
shall deliver to a Holder, for each $1,000 principal amount of Securities being
converted, cash in an amount equal to the average of the “Applicable Stock
Price” (defined below) of Common Stock for the ten consecutive Trading Days
beginning on the third Trading Day immediately following the Conversion Date
(the “Cash Settlement Averaging Period”), multiplied by (i) the then
applicable Conversion Rate and (ii) the percentage of each such $1,000
principal amount of Securities with respect to which the Company elects to
deliver cash; and


 


(ii)           if the
Company elects to satisfy its conversion obligation in a combination of cash
and Common Stock, the Company shall deliver to a Holder, for each $1,000
principal amount of Securities:


 


(1)           a cash
amount (the “Cash Amount”) (excluding any cash in lieu of fractional shares) equal
to the product of (x) $1,000 multiplied by (y) the percentage of such principal
amount of a Security to be satisfied in cash


 


and


 


(2)           a number
of shares of Common Stock equal to the difference between:


 


(A)          the number
of shares of Common Stock that would be issued pursuant to clause (i) immediately
above, minus


 


50





















 


(B)           the number
of shares equal to the quotient of (x) the Cash Amount divided by (y) the
Volume-Weighted Average Price of the Common Stock during the Cash Settlement
Averaging Period.


 


The “Applicable Stock
Price,” with respect to a Trading Day, is equal to the Volume-Weighted Average
Price per share of Common Stock (or any security into which Common Stock has
been converted in connection with a Fundamental Change) on such Trading Day.


 


The ‘‘Volume-Weighted
Average Price,’’ on any Trading Day means such price in respect of the period
from 9:30 a.m. to 4:00 p.m. (New York City time) on that Trading Day
as displayed under the heading ‘‘Bloomberg VWAP’’ on Bloomberg (or any
successor service) page CKH <equity> AQR (or any successor
page).  If such Volume-Weighted Average
Price is not available, the “Applicable Stock Price” means the Closing Sales
Price per share of Common Stock on such day, or if the Closing Sales Price is
unavailable, the ‘‘Applicable Stock Price’’ means the market value per share of
the Common Stock on such day as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.


 


(d)           If
any Trading Day during a Cash Settlement Averaging Period is not an Undisrupted
Trading Day, then determination of the price for that day shall be delayed
until the next Undisrupted Trading Day and such day shall not count as one of
the ten Trading Days that constitute the Cash Settlement Averaging Period.  If this results in the Cash Settlement
Averaging Period extending beyond the eighth Trading Day after the last of the
original 10 Trading Days in the Cash Settlement Averaging Period, then the Company
shall determine all prices for all delayed and undetermined prices on that
eighth Trading Day based on its good faith estimate of the value of the Common
Stock on that date.  In the event that
any Trading Day during the Cash Settlement Averaging Period beginning on the
date that is the 13th Trading Day prior to the Final Maturity Date
is not an Undisrupted Trading Day, settlement will occur after the Final
Maturity Date.


 


Section 7.15           Effect of Conversion;
Conversion After Record Date


 


Except as provided in
this Section 7.15, a converting Holder of Securities shall not be entitled
to receive any separate cash payments with respect to accrued and unpaid
interest on any such Securities being converted.  By delivery to the Holder of the number of
shares of Common Stock or other consideration issuable or cash payable upon
conversion in accordance with this Article 7, any accrued and unpaid
interest on such Securities shall be deemed to have been paid in full.  If any Securities are converted after the
close of business on an Interest Payment Record Date but prior to the
corresponding Interest Payment Date, the Holder of such Securities on such
Interest Payment Record Date shall receive the interest payable on such
Security on such Interest Payment Date notwithstanding the conversion
thereof.  Securities surrendered for
conversion after the close of business on an Interest Payment Record Date but
prior to the corresponding Interest Payment Date shall be accompanied by payment
from converting Holders, for the account of the Company, in New York Clearing
House funds, or other funds in amount equal to the interest that has accrued
and is payable on such Interest Payment Date on the Securities being
surrendered for conversion; provided, however that no such payment need be made (a) if
the Company has specified a Redemption Date that is after the close of business
on an Interest


 


51





















 


Payment Record Date but
prior to the corresponding Interest Payment Date or (b) any overdue
interest exists at the time of conversion with respect to the Securities being
converted, but only to the extent of the amount of such overdue interest.


 


Except as provided in Section 7.2
and this Section 7.12, no payment or adjustments in respect of payments of
interest on Securities surrendered for conversion or any dividends or
distributions on the Common Stock issued upon conversion shall be made upon the
conversion of any Securities.


 


Section 7.16           Limitations
on Foreign Ownership of Capital Stock


 


For so long as the
Company’s vessels operate in the United States coastwise trade, the Shipping
Act, 1916, as amended, shall require that not more than twenty-five percent
(25%) of the Company’s capital stock may be owned or controlled by Foreigners,
and the Holder of a Security shall be entitled to receive, upon conversion, a
Domestic Share Certificate only if the shares of Common Stock represented by
the Domestic Share Certificate are not to be held by or for the account of a
Foreigner.  Otherwise, the Holder of a
Security shall be entitled to receive, upon conversion, only a Foreign Share
Certificate.


 


If the holder of a
Domestic Share Certificate is a Foreigner, or holds shares for the account of a
Foreigner, such certificate must be exchanged immediately for a Foreign Share
Certificate, subject to the limitations set forth below.  If the holder of a Foreign Share Certificate
is a U.S. citizen, or should shares of Common Stock which are represented by a
Foreign Share Certificate be sold or transferred to a U.S. citizen, such holder
or transferee may exchange his or its certificate for a Domestic Share
Certificate.


 


The Company’s certificate
of incorporation contains provisions limiting the aggregate percentage
ownership by Foreigners of any class of the Company’s capital stock (including
the Common Stock) to twenty-two and one-half percent (22.5%) of the outstanding
shares of such class (the “Permitted Percentage”) to ensure that such Foreign
ownership will not exceed the maximum percentage permitted by applicable law,
and authorizes the Board of Directors, under certain circumstances, to increase
the foregoing percentage to twenty-four percent (24%).


 


Any purported transfer to
Foreigners of shares of Common Stock or of an interest in shares of Common
Stock of the Company represented by a Domestic Share Certificate which
increases the aggregate ownership by Foreigners above the then Permitted
Percentage (the “Excess Shares”) will be ineffective as against the Company for
all purposes (including for purposes of voting and dividends), and such
transfer shall not be recognized or recorded on the books of the Company,
except that a subsequent transfer of such Excess Shares to a U.S. citizen would
be recognized by the Company as valid and recorded as such.  If a Holder is a Foreigner or holding for the
account of a Foreigner and the conversion will, in the good faith judgment of
the Company, increase the aggregate ownership by Foreigners above the then
Permitted Percentage, the Holder will not be entitled to convert its Security,
or a portion thereof.


 


If the Permitted
Percentage is exceeded, the Company is authorized pursuant to its certificate
of incorporation to temporarily withhold dividends and other distributions on
the Excess Shares, pending the transfer of such shares to a U.S. citizen or a
reduction in the


 


52





















 


aggregate percentage of
shares owned by Foreigners to or below the Permitted Percentage, and to deny
voting rights with respect to the Excess Shares.  In addition, the Company is authorized, in
its discretion, to redeem (upon written notice) the Excess Shares in order to
reduce the aggregate Foreign ownership thereof to the Permitted
Percentage.  The Foreign-owned shares to
be redeemed would be selected solely by reference to the date or dates on which
such shares were acquired, starting with the most recently acquired shares and
including, in reverse chronological order, all other acquisitions of shares by
Foreigners from and after the acquisition which first caused the Permitted
Percentage to be exceeded; provided,
however, that if more than one such acquisition by Foreigners is
made on a particular day which results in the Permitted Percentage being
exceeded, the selection of shares to be redeemed would be made on a pro rata
basis in proportion to the respective number of shares acquired by each such
Foreign acquiror on such date.


 


The Company will furnish
to any Holder, upon request and without charge, copies of the certificate of
incorporation and by-laws of the Company then in effect.  Any such request may be addressed to the
Company or to the Registrar.


 


ARTICLE 8

CONTINGENT INTEREST


 


Section 8.1             Contingent Interest


 


The Company shall make
Contingent Interest payments to the Holders of Securities, as set forth in Section 8.2
below, during any period from December 15 to June 14 and from June 15
to December 14, commencing with the period beginning December 15,
2011 (each a “Contingent Interest Period”), if the average Debenture Price of a
Security for the five Trading Days (each a “Determination Date”) ending on the
third Trading Day immediately preceding the first day of the relevant
Contingent Interest Period (the “Average Debenture Price”) equals 120% or more
of the principal amount of $1,000 principal amount of Securities.  During any Contingent Interest Period when
Contingent Interest is payable pursuant to this Section 8.1, each
Contingent Interest payment due and payable on each $1,000 principal amount of
Securities shall equal 0.35% per annum of the Average Debenture Price.  Contingent Interest, if any, shall accrue and
be payable to Holders in the same manner as regular cash interest. Regular cash
interest shall continue to accrue at the rate specified in the Securities
whether Contingent Interest is paid.


 


Section 8.2             Payment of Contingent
Interest; Contingent Interest Rights Preserved


 


(a)           The
Company shall pay Contingent Interest owed pursuant to Section 8.1 for any
Contingent Interest Period on the Interest Payment Date immediately succeeding
the applicable Contingent Interest Period to Holders of Securities as of the
Interest Payment Record Date relating to such Interest Payment Date, except as
otherwise provided in the Securities.


 


(b)           Upon
determination by the Company that Holders of Securities shall be entitled to
receive Contingent Interest during a Contingent Interest Period, on or prior to
the first day of such Contingent Interest Period, the Company shall provide
notice to all Holders of such determination by disseminating a press release setting
forth the amount of Contingent Interest


 


53





















 


per $1,000 principal
amount of Securities and publishing such release on the Company’s website.


 


ARTICLE 9

COVENANTS


 


Section 9.1             Payment of Securities


 


The Company shall
promptly make all payments in respect of the Securities on the dates and in the
manner provided in the Securities and this Indenture.  Principal amount, Redemption Price, Purchase
Price and Fundamental Change Purchase Price and accrued and unpaid interest
shall be considered paid on the date it is due if the Paying Agent holds by
10:00 a.m., New York City time, on such date the Paying Agent holds, in
accordance with this Indenture, cash or securities, if permitted hereunder,
designated and sufficient for the payment of all such amounts then due. The
Company shall, to the fullest extent permitted by law, pay interest on overdue
principal and overdue installments of interest at the rate borne by the
Securities per annum.  Except as
otherwise specified, all references in this Indenture or the Securities to
interest shall be deemed to include, without duplication, Additional Interest,
if any, payable pursuant to the Registration Rights Agreement.


 


Payment of the principal
of, interest on the Securities shall be made at the Corporate Trust Office of
the Trustee in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.  Payment of interest on Certificated
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address appears in the Register; provided, however, that Holders with Securities in an
aggregate principal amount in excess of $2.0 million shall be paid, at their
written election, by wire transfer of immediately available funds.  Notwithstanding the foregoing, so long as the
Securities are registered in the name of a Depositary or its nominee, all
payments with respect to the Securities shall be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.


 


The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue amounts from time to time on demand at the rate then
in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful.  Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 9.2             Reports and Certain
Information


 


(a)           The Company shall file with the Trustee,
within 15 days after it files them with the SEC, copies of its annual report
and the information, documents and other reports which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act.  Notwithstanding that the Company
may not be required to remain subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall continue to file with the
SEC and provide the Trustee with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of
the Exchange Act and applicable to a U.S.


 


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corporation subject to
such Sections, such information, documents and reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections.  The
Company also shall comply with the other provisions of TIA Section 314(a).  Notwithstanding anything to the contrary
herein, the Trustee shall have no duty to review such documents for purposes of
determining compliance with any provisions of this Indenture.


 


(b)           At
any time when the Company is not subject to, or is not in compliance with, Section 13
or 15(d) of the Exchange Act, upon the request of a Holder or the holder
of shares of Common Stock issued upon conversion thereof, the Company will
promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder or such holder of shares of Common Stock issued
upon conversion of Securities, or to a prospective purchaser of any such
security designated by any such Holder or holder, as the case may be, to the
extent required to permit compliance by such Holder or holder with Rule 144A
under the Securities Act in connection with the resale of any such
security.  “Rule 144A Information”
shall be such information as is specified pursuant to Rule 144A(d)(4) under
the Securities Act or any successor provision.


 


Section 9.3             Compliance Certificates


 


The Company will deliver
to the Trustee, within 90 days after the end of each fiscal year of the Company
ending after the date hereof, an Officer’s Certificate signed by the principal
executive officer, principal financial officer or principal accounting officer,
as to his or her knowledge of the Company’s compliance with all conditions and
covenants under the Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.


 


Section 9.4             Maintenance of Corporate Existence


 


Subject to Article 10,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


Section 9.5             Stay, Extension and 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 the 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 amount, Redemption
Price, Purchase Price or Fundamental Change Purchase Price in respect of
Securities, or any interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture, and the Company, to the extent
it may lawfully do so, hereby expressly waives all benefit or advantage of any
such law and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee or any
Agent, but shall suffer and permit the execution of every such power as though
no such law had been enacted.


 


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Section 9.6             Maintenance of Office or
Agency of the Trustee, Registrar, Paying Agent and Conversion Agent


 


The Company shall
maintain an office or agency of the Trustee, Registrar, Paying Agent and
Conversion Agent where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
redemption, purchase or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served.  The Company hereby designates the Corporate
Trust Office as one such office or agency for all of the aforesaid
purposes.  The Company shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee).  If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 16.2.


 


ARTICLE 10

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


Section 10.1           Company
May Consolidate, Etc., Only on Certain Terms


 


The Company shall not
consolidate with or merge into any other Person (in a transaction in which the
Company is not the surviving Person) or convey, transfer or lease all or
substantially of its properties and assets to any successor Person, unless:


 


(1)           the
resulting, surviving or transferee Person is organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all of the obligations of the Company under the Securities and
this Indenture;


 


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


 


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


 


Section 10.2           Successor Substituted


 


Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any
conveyance, transfer or lease of all or substantially all of the properties and
assets of the Company in accordance with Section 10.1, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of,


 


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the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.


 


ARTICLE 11

DEFAULT AND REMEDIES


 


Section 11.1           Events of Default


 


An “Event of Default”
shall occur if:


 


(1)           the
Company defaults in the payment of any principal of any of the Securities when
the same becomes due and payable (whether at maturity, upon redemption, on a
Purchase Date or Fundamental Change Purchase Date or otherwise);


 


(2)           the
Company defaults in the payment of any accrued and unpaid interest (including
any Make-Whole Premium), in each case, when due and payable, and such default
continues for a period of 30 days;


 


(3)           following
the exercise by the Holder of the right to convert a Security pursuant to and
in accordance with Article 7, the Company (i) fails to deliver the
cash, if any, when required to be delivered following the Company’s election to
so deliver cash upon conversion pursuant to Section 7.1 or (ii) fails
to deliver the Common Stock, if any, when required to be delivered following
the Company’s election to so deliver Common Stock upon conversion pursuant to Section 7.1,
other than as a result of the limitation on foreign ownership of shares of Common
Stock in paragraph 7 of the Securities;


 


(4)           the
Company fails to provide the Fundamental Change Company Notice when required by
this Indenture;


 


(5)           the
Company fails to comply with any of its other agreements contained in the
Securities or in this Indenture (other than those referred to in clauses 1
through 4 above) and such failure continues for 60 days after receipt by the
Company of a Notice of Default;


 


(6)           the
Company fails to pay when due the principal of, or acceleration of, any
indebtedness for money borrowed by the Company or any of its Subsidiaries in
excess of $25,000,000 principal amount, if such Indebtedness is not discharged,
or such acceleration is not annulled, by the end of a period of 10 days after
receipt by the Company of a Notice of Default;


 


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


 


(A)          commences a
voluntary case or proceeding;


 


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


 


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


 


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


 


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


 


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


 


(B)           appoints a
Custodian of the Company or any Significant Subsidiary of the Company, or for
any substantial part of the property of the Company or any Significant
Subsidiary of the Company; or


 


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


 


and in each case
of this subclause (8) the order or decree remains unstayed and in effect
for 60 consecutive days.


 


The term “Bankruptcy Law”
means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.


 


A default under clause (5) or
(6) above is not an Event of Default until the Trustee notifies the
Company, or the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee, in writing of
the Default, and the Company does not cure the Default (and such Default is not
waived) within the time period specified in clauses (5) or (6) above
after actual receipt of such notice.  The
notice given pursuant to this Section 11.1 must specify the Default,
demand that it be remedied and state that the notice is a “Notice of Default.”
When any Default under this Section 11.1 is cured, it shall cease to be a
Default.


 


The Trustee shall not be
charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Trust Officer at the Corporate Trust Office of the
Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.


 


Section 11.2           Acceleration


 


If an Event of Default
(other than an Event of Default specified in clause (7) or (8) of Section 11.1)
occurs and is continuing, the Trustee may, by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may, by


 


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notice to the
Company and the Trustee, declare all unpaid principal of plus accrued and
unpaid interest on all the Securities then outstanding to be due and payable
upon any such declaration, and the same shall become and be immediately due and
payable.


 


If an Event of Default
specified in clause (7) or (8) of Section 11.1 occurs, all
unpaid principal of plus accrued and unpaid interest on all the Securities then
outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


The Holders of a majority
in aggregate principal amount of the Securities then outstanding by notice to
the Trustee may rescind an acceleration of Securities and its consequences
before a judgment or decree for the payment of money has been obtained by the
Trustee if (a) all existing Events of Default, other than the nonpayment
of the principal of plus accrued and unpaid interest on the Securities that has
become due solely by such declaration of acceleration, have been cured or
waived and (b) all payments due to the Trustee and any predecessor Trustee
under Section 12.7 have been made. 
No such rescission shall affect any subsequent Default or impair any
right consequent thereto.


 


Section 11.3           Other Remedies


 


If an Event of Default
occurs and is continuing, the Trustee may, but shall not be obligated to,
pursue any available remedy by proceeding at law or in equity to collect the
payment of the principal of or accrued and unpaid interest on the Securities or
to enforce the performance of any provision of the Securities or this
Indenture.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Securities or does not
produce any of them in the proceeding.  A
delay or omission by the Trustee or any Securityholder 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 to the extent permitted by law.


 


Section 11.4           Waiver of Defaults and
Events of Default


 


Subject to Sections 11.7
and 13.2, the Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to the Trustee may waive an existing
Default or Event of Default and its consequence, except a Default or Event of
Default in the payment of the principal of, or any interest on any Security, or
the payment of any applicable Purchase Price, Fundamental Change Purchase Price
or Redemption Price, or a failure by the Company to convert any Securities into
Common Stock and/or cash or any Default or Event of Default in respect of any
provision of this Indenture or the Securities that, under Section 13.2,
cannot be modified or amended without the consent of the Holder of each Security
affected.  When a Default or Event of
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.  This Section 11.4 shall be in lieu of Section 316(a)1(B) of
the TIA and such Section 316(a)1(B) is hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


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Section 11.5           Control by Majority


 


The Holders of a majority
in aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Holder or the
Trustee, or that may involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it; provided that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.  This Section 11.5
shall be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is
hereby expressly excluded from this Indenture, as permitted by the TIA.


 


Section 11.6           Limitations on Suits


 


A Holder of a Security
may not pursue any remedy with respect to this Indenture or the Securities
unless:


 


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


 


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


 


(3)           such
Holder or Holders offer to the Trustee reasonable indemnity to the Trustee
against any loss, liability or expense;


 


(4)           the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and


 


(5)           no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal
amount of the Securities then outstanding.


 


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


 


Section 11.7           Rights of Holders to
Receive Payment and to Convert


 


Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive
payment of the principal amount, Redemption Price, Purchase Price, Fundamental
Change Purchase Price or interest on any Security, on or after the respective
due dates expressed in the Security and this Indenture, to convert such
Security in accordance with Article 7 and to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.


 


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Section 11.8           Collection Suit by Trustee


 


If an Event of Default in
the payment of principal or interest specified in clause (1) or (2) of
Section 11.1 occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company or another
obligor on the Securities for the whole amount owing with respect to the
Securities and the amounts provided for in Section 12.7.


 


Section 11.9           Trustee May File
Proofs of Claim


 


The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor on the Securities), its creditors
or its property and shall be entitled and empowered to collect and receive any
money or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 12.7,
and to the extent that such payment of the reasonable compensation, expenses,
disbursements and advances in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to, or, on
behalf of any Holder, to authorize, accept or adopt any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 11.10         Priorities


 


If the Trustee collects
any money pursuant to this Article 11, it shall pay out the money in the
following order:


 


First,
to the Trustee for amounts due under Section 12.7;


 


Second,
to Securityholders for amounts due and unpaid on the Securities for the
principal amount, Redemption Price, Purchase Price, Fundamental Change Purchase
Price or interest, as the case may be, ratably, without preference or priority
of any kind, according to such amounts due and payable on the Securities; and


 


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


 


The Trustee may fix a
record date and payment date for any payment to Holders pursuant to this Section 11.10.  At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.


 


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Section 11.11         Undertaking for Costs


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant.  This Section 11.11 does not apply to a
suit made by the Trustee, a suit by a Holder pursuant to Section 11.7, or
a suit by Holders of more than 10% in aggregate principal amount of the
Securities then outstanding.  This Section 11.11
shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is
hereby expressly excluded from this Indenture, as permitted by the TIA.


 


ARTICLE 12

TRUSTEE


 


Section 12.1           Certain Duties and
Responsibilities of Trustee


 


(a)           The
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing of all Events of Default with
respect to the Securities of that series that may have occurred, shall
undertake to perform with respect to the Securities of such series such duties
and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee.  In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.


 


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


 


(i)            prior to
the occurrence of an Event of Default with respect to the Securities of a
series and after the curing or waiving of all such Events of Default with
respect to that series that may have occurred:


 


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


 


(2)           in the
absence of bad faith on the part of the Trustee, the Trustee may with respect
to the Securities of such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the


 


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requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirement of this
Indenture;


 


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


 


(iii)          the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of
not less than a majority in principal amount of the Securities of any series at
the time Outstanding (determined as provided in Section 2.8) relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Securities of that series; and


 


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


 


Section 12.2           Certain Rights of Trustee


 


Except as otherwise
provided in Section 7.1:


 


(a)           The
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;


 


(b)           Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the
name of the Company, by one or more Officers thereof (unless other evidence in
respect thereof is specifically prescribed herein);


 


(c)           The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in good faith and
in reliance thereon;


 


(d)           The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities


 


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(that has not been cured or waived) to exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs;


 


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


 


(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, security, or other papers or
documents, unless requested in writing so to do by the holders of not less than
a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 2.8); provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding.  The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;


 


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


 


(h)           Except
with respect to Section 9.1, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to the covenants contained in Article 9.  In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event
of Default occurring pursuant to Sections 9.1, 11.1(1) or 11.1(2) any
Default of Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge; and (ii) delivery of reports,
information and documents to the Trustee under Sections 9.2 and 9.4 for
informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).


 


Section 12.3           Trustee Not Responsible
for Recitals or Issuance or Securities


 


(a)           The
recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.


 


(b)           The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.


 


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(c)           The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.1, or for
the use or application of any moneys received by any paying agent other than
the Trustee.


 


Section 12.4           May Hold Securities


 


The Trustee or any paying
agent or Security Registrar, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would have if
it were not Trustee, paying agent or Security Registrar.


 


Section 12.5           Moneys Held in Trust


 


Subject to the provisions
of Section 11.5, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law.  The Trustee shall be
under no liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon.


 


Section 12.6           Compensation and
Reimbursement


 


(a)           The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be
entitled to, such compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), as the
Company, and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. 
The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises.


 


(b)           The
obligations of the Company under this Section to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute additional indebtedness
hereunder.  Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.


 


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Section 12.7           Reliance on Officer’s
Certificate


 


Except as otherwise
provided in Section 7.1, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting to
take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.


 


Section 12.8           Disqualification;
Conflicting Interests


 


If the Trustee has or
shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.


 


Section 12.9           Corporate Trustee
Required; Eligibility


 


There shall at all times
be a Trustee with respect to the Securities issued hereunder which shall at all
times be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District
of Columbia, or a corporation or other Person permitted to act as trustee by
the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus, or being a member of a bank holding
company with a combined capital and surplus, of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority.  If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published.  The Company
may not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee.  In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.


 


Section 12.10         Resignation and Removal;
Appointment of Successor


 


(a)           The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register.  Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to
Securities of such series by or pursuant to a Board Resolution.  If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of


 


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competent jurisdiction for the appointment of a
successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee.  Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.


 


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


 


(i)            the
Trustee shall fail to comply with the provisions of Section 7.8 after
written request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or


 


(ii)           the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.9
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


(iii)          the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then, in any
such case, the Company may remove the Trustee with respect to all Securities
and appoint a successor trustee by or pursuant to a Board Resolution, or,
unless the Trustee’s duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of that holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.  Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.


 


(c)           The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding may at any time remove the Trustee with respect
to such series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the Company.


 


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


 


(e)           Any
successor trustee appointed pursuant to this Section may be appointed with
respect to the Securities of one or more series or all of such series, and at
any time there shall be only one Trustee with respect to the Securities of any
particular series.


 


Section 12.11         Acceptance of Appointment
By Successor


 


(a)           In
case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute, acknowledge
and deliver to


 


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the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.


 


(b)           In
case of the appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (2) shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the Securities of
that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.


 


(c)           Upon
request of any such successor trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.


 


(d)           No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this Article 12.


 


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(e)           Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder
by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register.  If the Company fails to transmit such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense of the
Company.


 


Section 12.12         Merger, Conversion,
Consolidation or Succession to Business


 


Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.8 and eligible under the
provisions of Section 7.9, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.  In case
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


Section 12.13         Preferential Collection of
Claims Against the Company


 


The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship described in Section 311(b) of the Trust
Indenture Act.  A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the
Trust Indenture Act to the extent included therein.


 


Section 12.14         Notice of Defaults


 


If a default occurs and
is continuing hereunder with respect to Securities of any series and if it is
actually known to a Trust Officer of the Trustee, the Trustee shall mail to
each holder of such Securities notice of the default within 90 days after it
occurs; provided, however, that
in the case of any default of the character specified in Section 11.4 with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.  Except in the case of a default in payment of
principal of or interest on any Security (including payments pursuant to the
mandatory redemption provisions of such Security, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is not opposed to the interest of
the holders of such Securities.  For the
purpose of this Section, the term “default” means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.


 


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ARTICLE 13

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section 13.1           Without Consent of Holders


 


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


 


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


 


(b)           to
provide for uncertificated Securities in addition to or in place of
Certificated Securities;


 


(c)           to
provide for the assumption of the Company’s obligations to Holders of
Securities in the case of a share exchange, merger or consolidation or sale of
all or substantially all of the Company’s assets;


 


(d)           to
make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect in any material respect
the legal rights under this Indenture of any Securityholder;


 


(e)           to add a guarantor;


 


(f)            to
comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


 


(g)           to
secure the Securities;


 


(h)           to
comply with the rules of any applicable securities depositary, including
the Depositary;


 


(i)            to
conform the text of this Indenture or the Securities to any provision of the
“Description of the Debentures” contained in the Offering Circular to the
extent that such provision was intended to be a recitation of the text of such
“Description of the Debentures;”


 


(j)            to
provide for a successor Trustee in accordance with the terms of this Indenture
or to otherwise comply with any requirement of this Indenture; or


 


(k)           to
make any change in Section 7.16 (including any related definitions) and
the corresponding provisions of the Securities in order to comply with
applicable U.S. maritime laws as in effect from time to time.


 


Section 13.2           With Consent of Holders


 


The Company and the
Trustee may amend or supplement the Securities or this Indenture with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding.  The
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding may waive compliance in any instance by the Company with any


 


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provision of the
Securities or this Indenture without notice to any Securityholder.  However, notwithstanding the foregoing but
subject to Section 13.4, without the consent of the Holders of each
Security then outstanding, an amendment, supplement or waiver may not:


 


(a)           change
the stated maturity of the principal of or the payment date of any installment
of interest on or with respect to the Securities;


 


(b)           reduce
the principal amount of, the Redemption Price, Purchase Price or Fundamental
Change Purchase Price of, the Make-Whole Premium or rate of interest on any
Security;


 


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


 


(d)           change
the currency of payment of principal of, the Redemption Price, Purchase Price
or Fundamental Change Purchase Price of, or rate of interest with respect to
which the Securities is payable;


 


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


 


(f)            modify
the provisions with respect to the purchase rights of Holders as provided in
Articles 4 and 5 in a manner adverse to Holders;


 


(g)           adversely
affect the right of Holders to convert Securities other than as provided in
this Indenture;


 


(h)           reduce
the percentage in principal amount of the outstanding Securities, the consent
of whose Holders is required to take specific actions including, but not
limited to, the waiver of past defaults or the modification or amendment of
this Indenture; or


 


(i)            alter
the manner of calculation or rate of accrual of interest, Contingent Interest
or Additional Interest, Redemption Price, Purchase Price or Fundamental Change
Purchase Price or the Make-Whole Premium on any Security or extend the time or
payment of any such amount.


 


It shall not be necessary
for the consent of the Holders under this Section 13.2 to approve the particular
form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section 13.2 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver.  Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver.


 


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Section 13.3           Compliance with Trust
Indenture Act


 


Every amendment to or
supplement of this Indenture or the Securities shall comply with the TIA as in
effect at the date of such amendment or supplement.


 


Section 13.4           Revocation and Effect of
Consents


 


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


 


After an amendment,
supplement or waiver becomes effective, it shall bind every applicable
Securityholder.


 


Section 13.5           Notation on or Exchange of
Securities


 


If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee.  The Trustee may place an appropriate notation
on the Security about the changed terms and return it to the Holder.  Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.


 


Section 13.6           Trustee to Sign Amendments,
Etc.


 


The Trustee shall sign
any amendment or supplemental indenture authorized pursuant to this Article 13
if the amendment or supplemental indenture does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.  If it does, the Trustee may, in its sole
discretion, but need not sign it.  In
signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 12.1, shall
be fully protected in relying upon, an Officer’s Certificate and an Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture.


 


Section 13.7           Effect of Supplemental
Indentures


 


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


 


ARTICLE 14

TAX TREATMENT


 


The Company agrees, and
by acceptance of a beneficial ownership interest in the Securities each Holder
and each beneficial owner of the Securities shall be deemed to have


 


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agreed, for United
States federal income tax purposes (1) to treat the Securities as
indebtedness that is subject to Treasury Regulations Section 1.1275-4 (the
“Contingent Debt Regulations”) and, for purposes of the Contingent Debt
Regulations, to treat the cash and the fair market value of any stock
beneficially received upon any conversion of the Securities as a contingent
payment, (2) to accrue interest with respect to the Securities as original
issue discount, according to the “noncontingent bond method” set forth in
Treasury Regulations Section 1.1275-4(b), on a constant yield basis using
the comparable yield of 6.75% per annum compounded semi-annually and (3) in
the absence of an administrative determination or judicial ruling to the
contrary, to be bound by the Company’s determination of the “comparable yield”
and “projected payment schedule,” within the meaning of the Contingent Payment
Regulations, with respect to the Securities. 
A Holder may obtain the issue price, amount of original issue discount,
issue date, yield to maturity, comparable yield and projected payment schedule for
the Securities by submitting a written request for such information to the
Company, c/o INVESTOR RELATIONS, at the address set forth in Section 16.2.


 


The Company shall file
with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount for United States
federal income tax purposes (including daily rates and accrual periods) accrued
on outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time,
including the amount of any adjustment made under the noncontingent bond method
to account for the amount of any difference between the amount of an actual
payment and the amount of a projected payment.


 


The Company acknowledges
and agrees, and each Holder and any beneficial holder of a Security by its
purchase thereof shall be deemed to acknowledge and agree, that (i) the
comparable yield and the schedule of projected payments are not determined
for any purpose other than for the determination of interest accruals and
adjustments thereof in respect of the Securities for United States federal
income tax purposes and (ii) the comparable yield and the schedule of
projected payments do not constitute a projection or representation regarding
the amounts payable on the Securities.


 


The Company may cause to be
withheld from any payment hereunder any tax withholding required by law or
regulations, including, in the case of any withholding obligation arising from
income that does not give rise to any cash or property from which any
applicable withholding tax could be satisfied, set off against any subsequent
payment of cash or property hereunder.


 


ARTICLE 15

SATISFACTION AND DISCHARGE


 


Section 15.1           Satisfaction and Discharge
of the Indenture


 


This Indenture shall
cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when


 


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(a)           either


 


(i)            all
Securities theretofore authenticated and delivered (other than Securities that
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.7) have been delivered to the Trustee for
cancellation; or


 


(ii)           all such
Securities not theretofore delivered to the Trustee for cancellation have
become due and payable or shall become due and payable within one year, in each
case whether at the Final Maturity Date or upon acceleration, or on any
Redemption Date (including under arrangements satisfactory to the Trustee with
respect to the delivery of the notice of redemption), or with respect to any
Purchase Date or Fundamental Change Purchase Date, and the Company deposits
with the Paying Agent cash or Common Stock, as applicable, sufficient to pay
all amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section 2.7);


 


(b)           the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and


 


(c)           the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company as
to conversion of the Securities under Article 7 of this Indenture and to
the Trustee under Section 12.7 and, if money shall have been deposited
with the Trustee pursuant to Section 15.1(a)(ii), the obligations of the
Trustee under Section 15.2 shall survive.


 


Section 15.2           Repayment to the Company


 


The Trustee and the
Paying Agent shall return to the Company upon written request any cash or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable
unclaimed property law.  After return to
the Company, Holders entitled to the cash or securities must look to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Securityholders with respect to such
cash or securities for that period commencing after the return thereof.


 


ARTICLE 16

MISCELLANEOUS


 


Section 16.1           Trust Indenture Act
Controls


 


If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by any of
Sections 310 to 317, inclusive, of the TIA through operation of Section 318(c) thereof,
such imposed duties shall control.


 


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Section 16.2           Notices


 


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


 


If to the Company, to:


 


SEACOR Holdings Inc.

460 Park Avenue, 12th Floor

New York, NY 10022


Attention: 
Alice Gran, Esq.

General Counsel


Fax No.:  (212)
582-8522


 


if to the Trustee, to:


 


U.S. Bank National Association

60 Livingston Avenue

St. Paul, MN 55107

Attention:  Corporate Trust Services

Facsimile No.: (651) 495-8097


 


Such notices or
communications shall be effective when received.


 


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 Securityholder shall be mailed by first-class mail,
postage prepaid, or delivered by an overnight delivery service to it at its
address shown on the Register.


 


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


 


Section 16.3           Communications by Holders
with Other Holders


 


Securityholders may
communicate pursuant to TIA Section 312(b) with other Securityholders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).


 


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Section 16.4           Certificate and Opinion as
to Conditions Precedent


 


(a)           Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee at the request
of the Trustee:


 


(1)           an Officer’s
Certificate stating that, in the opinion of the signers, all conditions
precedent (including any covenants, compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with; and


 


(2)           an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent (including any covenants, compliance with which constitutes a
condition precedent) have been complied with.


 


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


 


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


 


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


 


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


 


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


 


provided
that with respect to matters of fact an Opinion of Counsel may rely on an
Officer’s Certificate or certificates of public officials.


 


Section 16.5           Record Date for Vote or
Consent of Securityholders


 


The Company may set a
record date for purposes of determining the identity of Holders entitled to vote
or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall not be more than 30 days prior to the date
of the commencement of solicitation of such action. Notwithstanding the
provisions of Section 13.4, if a record date is fixed, those persons who
were Holders of Securities at the close of business on such record date (or
their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such persons continue to be Holders after such record
date.


 


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Section 16.6           Rules by Trustee,
Paying Agent, Registrar and Conversion Agent


 


The Trustee may make
reasonable rules (not inconsistent with the terms of this Indenture) for
action by or at a meeting of Holders. Any Registrar, Paying Agent or Conversion
Agent may make reasonable rules for its functions.


 


Section 16.7           Legal Holidays


 


A “Legal Holiday” is a
Saturday, Sunday or a day on which state or federally chartered banking
institutions in New York, New York and the state in which the Corporate Trust
Office is located are not required to be open. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.  If an Interest Payment Record Date is a Legal
Holiday, the record date shall not be affected.


 


Section 16.8           Governing Law


 


This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


Section 16.9           No Adverse Interpretation
of Other Agreements


 


This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a
Subsidiary of the Company. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.


 


Section 16.10         No Recourse Against Others


 


All liability described
in paragraph 14 of the Securities of any director, officer, employee or
shareholder, as such, of the Company is waived and released.


 


Section 16.11         Successors


 


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


 


Section 16.12         Multiple Counterparts


 


The parties may sign
multiple counterparts of this Indenture. Each signed counterpart shall be
deemed an original, but all of them together represent the same agreement.


 


Section 16.13         Separability


 


In case any provisions in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.


 


77





















 


Section 16.14         Table of Contents,
Headings, Etc.


 


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 to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


[SIGNATURE PAGE FOLLOWS]


 


78





















 


IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands as of the date and year first
above written.


 


	
   

  	
  SEACOR HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randall Blank

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


[Signature Page to Indenture]


 





















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, as

  
	
   

  	
   

  	
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Prokosh

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


EXHIBIT A


 


[FORM OF
FACE OF SECURITY]


 


[UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.  THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.](1)


 


[THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE ‘‘SECURITIES ACT’’), AND
THIS DEBENTURE AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.](2)


 


[THE HOLDER OF THIS
SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE ‘‘RESALE RESTRICTION TERMINATION DATE’’)
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE


 










(1)           This
legend to be included only if the Security is a Global Security.


 


(2)           This
legend to be included only if the Security is a Restricted Security.


 


A-1





















 


COMPANY OR ANY
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES WHERE REGISTRATION OR TRANSFER OF
THIS SECURITY IS REQUIRED, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER THE RESALE RESTRICTION
TERMINATION DATE UPON THE REQUEST OF THE HOLDER AND THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.](2)


 


THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION HEREOF ARE SUBJECT TO CERTAIN LIMITATIONS ON
FOREIGN OWNERSHIP AND AS A CONDITION TO THE RECEIPT OF COMMON STOCK UPON
CONVERSION HOLDERS WILL BE REQUIRED TO FURNISH A CERTIFICATION AS TO, AND UNDER
CERTAIN CIRCUMSTANCES, ADDITIONAL PROOF OF, THEIR CITIZENSHIP.  IN ADDITION, A FOREIGN HOLDER MAY, BY REASON
OF SUCH LIMITATIONS, RECEIVE A LESSER NUMBER OF SHARES OF COMMON STOCK UPON
CONVERSION THAN IT OTHERWISE MAY BE ENTITLED TO RECEIVE PURSUANT TO THE
TERMS OF THIS SECURITY AND THE INDENTURE.


 


A-2





















 


SEACOR Holdings Inc.


 


2.875% Convertible Senior Debentures due December 15,
2024


 


	
  No.

  	
  CUSIP:
  811904AH4

  



 


SEACOR Holdings Inc., a
Delaware corporation (the “Company,” which term shall include any successor
Person under the Indenture referred to on the reverse hereof), promises to pay
to                                                           ,
or registered assigns, [up to](3) the principal amount of
($                         )
[, or such greater or lesser amount as is indicated on the Schedule of
Exchanges of Securities on the other side of this Security](3) on December 15,
2024, and to pay interest thereon, in arrears, from December 17, 2004 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, on June 15 and December 15 of each year (each, an
“Interest Payment Date”), beginning on June 15, 2005, at a rate of 2.875%
per annum until the principal hereof is paid or made available for payment at December 15,
2024, or upon acceleration, or until such date on which the Securities are
converted, redeemed or purchased as provided herein.  The interest so payable and punctually paid
or duly provided for on any Interest Payment Date shall, as provided in the
Indenture (as hereinafter defined), be paid to the Person in whose name this Security
is registered at the close of business on the regular record date for such
interest, which shall be the June 1 or December 1 (whether or not a
Business Day), as the case may be, immediately preceding the relevant Interest
Payment Date (an “Interest Payment Record Date”); provided, however, that interest shall be paid to a Person
other than the Person in whose name this Security is registered at the close of
business on the Interest Payment Record Date as provided herein.


 


The Company shall make
Contingent Interest payments to the Holders of Securities during any period
from December 15 to June 14 and from June 15 to December 14,
commencing with the period beginning December 15, 2011 (each, a
“Contingent Interest Period”), if the average Debenture Price of a Security for
the five Trading Days (each, a “Determination Date”) ending on the third
Trading Day immediately preceding the first day of the relevant Contingent
Interest Period (the “Average Debenture Price”) equals 120% or more of the
principal amount of $1,000 principal amount of Securities.  During any Contingent Interest Period when
Contingent Interest is payable, each Contingent Interest payment due and
payable on each $1,000 principal amount of Securities shall equal 0.35% per
annum of the Average Debenture Price. 
Contingent Interest, if any, shall accrue and be payable to Holders in
the same manner as regular cash interest.


 


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


 


[Signature page follows]


 


 










(3)           To
be included only if the Security is a Global Security.


 


A-3





















 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SEACOR Holdings Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


Trustee’s Certificate of
Authentication:  This is one of the
Securities referred to in the within-mentioned Indenture.


 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


A-4





















[FORM OF REVERSE SIDE OF SECURITY]


 


SEACOR Holdings Inc.


 


2.875% Convertible Senior Debentures due December 15,
2024


 


This Security is one of a
duly authorized issue of 2.875% Convertible Senior Debentures due December 15,
2024 (the “Securities”) of the Company issued under an Indenture, dated as of December 17,
2004 (the “Indenture”), between the Company and U.S. Bank National Association,
as trustee (the “Trustee”).  The terms of
the Security include those stated in the Indenture, those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the
“TIA”), and those set forth in this Security. 
This Security is subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of all such terms.  To the extent permitted by applicable law, if
any provision of this Security conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling.  Capitalized terms used but
not defined herein have the meanings assigned to them in the Indenture unless
otherwise indicated.


 


1.             Interest.


 


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


 


If this Security is
redeemed pursuant to paragraph 5 of this Security, or the Holder elects to
require the Company to purchase this Security pursuant to paragraph 6 of this
Security, on a date that is after an Interest Payment Record Date but on or
before the corresponding Interest Payment Date, interest and Contingent
Interest, if any, accrued and unpaid hereon to, but not including, the
applicable Redemption Date, Purchase Date or Fundamental Change Purchase Date
shall be paid to the same Holder to whom the Company pays the principal of this
Security.  Interest and Contingent
Interest, if any, accrued and unpaid hereon at the Final Maturity Date also
shall be paid to the same Holder to whom the Company pays the principal of this
Security.


 


Interest and Contingent
Interest, if any, on Securities converted after the close of business on an
Interest Payment Record Date but prior to the corresponding Interest Payment
Date shall be paid to the Holder of the Securities on the Interest Payment
Record Date but, upon conversion, the Holder must pay the Company an amount
equal to the interest and Contingent Interest, if any, that has accrued and
shall be paid on such Interest Payment Date. 
No such payment need be made with respect to Securities converted after
an Interest Payment Record Date and prior to the corresponding Interest Payment
Date (1) if the Company has specified a Redemption Date that is after the close
of business on an Interest Payment Record Date but prior to the corresponding
Interest Payment Date or (2) any overdue interest and Contingent Interest, if
any, exists at the time of conversion with respect to the Securities being
converted, but only to the extent of the amount of such overdue interest and
Contingent Interest, if any.


 


Except as otherwise
stated herein, any reference herein to interest accrued or payable as of any
date shall include Contingent Interest, if any, and Additional Interest, if
any, accrued or payable on such date as provided in the Indenture or the
Registration Rights Agreement.


 


A-5





















 


2.             Method of Payment.


 


Payment of the principal
of, interest on the Securities shall be made at the Corporate Trust Office of
the Trustee in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.  The Holder must surrender this Security to a
Paying Agent to collect payment of principal. 
Payment of interest on Certificated Securities shall be made by check
mailed to the address of the Person entitled thereto as such address appears in
the Register; provided, however,
that Holders with Securities in an aggregate principal amount in excess of $2.0
million shall be paid, at their written election, by wire transfer of
immediately available funds. 
Notwithstanding the foregoing, so long as the Securities are registered
in the name of a Depositary or its nominee, all payments with respect to the
Securities shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.


 


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


 


Initially, the Trustee
will act as Paying Agent, Registrar, Conversion Agent and Bid Solicitation
Agent.  The Company or any Affiliate of
the Company may act as Paying Agent, Registrar or Conversion Agent.  None of the Company or any Affiliate of any
of them may act as Bid Solicitation Agent.


 


4.             Indenture.


 


The Securities are
general unsecured senior obligations of the Company limited to $250,000,000
aggregate principal amount.  The
Indenture does not limit other debt of the Company, secured or unsecured.


 


5.             Redemption at the Option
of the Company.


 


On or after December 20,
2009, during the periods commencing on the dates set forth below, the Company,
at its option, may redeem the Securities in cash at any time, in whole or in
part, at the corresponding Redemption Prices expressed as a percentage of the
principal amount of the Securities to be redeemed, plus accrued and unpaid
interest to, but not including, the Redemption Date:


 




	
  Date

  	
   

  	
  Price

  	
   

  
	
  December 20, 2009

  	
   

  	
  100.82

  	
  %

  
	
  December 15, 2010

  	
   

  	
  100.41

  	
   

  
	
  December 15, 2011 and thereafter

  	
   

  	
  100.00

  	
   

  






 


A notice of redemption
pursuant to this Section of this Security shall be mailed at least 30 days
but not more than 60 days before a Redemption Date to each Holder of Securities
to be redeemed at the Holder’s address as such address appears in the
Register.  If cash sufficient to pay the
Redemption Price of any Securities for which notice of redemption is given is
deposited with the Paying Agent by 10:00 a.m., New York City time, on the
Redemption Date, then, immediately after such Redemption Date, such Securities
shall cease to be outstanding and interest on such Securities shall cease to
accrue, whether or not such Securities are delivered by


 


A-6





















 


their Holders to
the Paying Agent, and the Holders thereof shall have no other rights as such
other than the right to receive the Redemption Price upon delivery of such
Securities by their Holders to the Paying Agent.  Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in multiples of $1,000
principal amount.


 


6.             Purchase by the Company
at the Option of the Holder or Upon a Fundamental Change.


 


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase, at
the option of any Holder, all or any portion of the Securities held by such
Holder on December 15 of 2011, 2014 and 2019 in multiples of $1,000 at a
purchase price in cash equal to 100% of the principal amount of those
Securities, plus accrued and unpaid interest to, but not including, such
Purchase Date.  To exercise such right, a
Holder shall deliver to the Paying Agent a Purchase Notice containing the
information set forth in the Indenture, at any time from 9:00 a.m., New York
City time, on the date that is 20 Business Days prior to such Purchase Date
until 5:00 p.m., New York City time, on the Business Day immediately preceding
such Purchase Date, and shall deliver the Securities to the Paying Agent as set
forth in the Indenture.


 


Subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase, at
the option of any Holder, all or any portion of the Securities held by such
Holder upon a Fundamental Change in multiples of $1,000 at the Fundamental
Change Purchase Price.  To exercise such
right, a Holder shall deliver to the Paying Agent a Fundamental Change Purchase
Notice containing the information set forth in the Indenture, at any time prior
to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Fundamental Change Purchase Date, and shall deliver the Securities to the
Paying Agent as set forth in the Indenture.


 


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


 


If cash sufficient to pay
the Purchase Price or Fundamental Change Purchase Price, as the case may be, of
all Securities or portions thereof to be purchased with respect to a Purchase
Date or Fundamental Change Purchase Date, as the case may be, is deposited with
the Paying Agent by 10:00 a.m., New York City time, on the Purchase Date or
Fundamental Change Purchase Date, as the case may be, then, immediately after
such Purchase Date or Fundamental Change Purchase Date, as the case may be,
such Securities shall cease to be outstanding and interest on such Securities
shall cease to accrue, whether or not such Securities are delivered by their
Holders to the Paying Agent, and the Holders thereof shall have no other rights
as such other than the right to receive the Purchase Price or Fundamental
Change Purchase Price, as the case may be, upon delivery of such Securities by
their Holders to the Paying Agent.


 


7.             Conversion.


 


Subject to the terms and
conditions of the Indenture, a Holder of a Security may convert the principal
amount of such Security (or any portion thereof equal to $1,000 principal
amount or any integral multiple of $1,000 principal amount in excess thereof)
into Common Stock at any


 


A-7





















 


time prior to 5:00
p.m., New York City time, on the Business Day immediately preceding the Final
Maturity Date, at the Conversion Price then in effect; provided, however,
that, if such Security is called for redemption pursuant to paragraph 5 or
submitted or presented for purchase pursuant to paragraph 6, such conversion
right shall terminate at the close of business on the second Trading Day
immediately preceding the Redemption Date, Purchase Date or Fundamental Change
Purchase Date, as the case may be, for such Security or such earlier date as
the Holder presents such Security for redemption or for purchase (unless the
Company shall default in paying the Redemption Price, Purchase Price or
Fundamental Change Purchase Price when due, in which case the conversion right
shall terminate at 5:00 p.m., New York City time, on the date such default is
cured and such Security is redeemed or purchased, as the case may be).


 


The initial Conversion
Price is $73.15 per share, and the initial Conversion Rate is 13.6705 shares of
Common Stock per $1,000 principal amount of Securities, in each case subject to
adjustment under certain circumstances as provided in the Indenture.  No fractional shares will be issued upon
conversion.  In lieu thereof, the Company
shall deliver a number of shares of Common Stock equal to the aggregate of the
fractional shares otherwise deliverable for each Trading Day during the
Conversion Period (rounding down to the nearest whole number) and shall pay an
amount in cash for the current market value of the remaining fractional shares.


 


In lieu of delivery of
shares of Common Stock upon receipt of a Conversion Notice, the Company may, in
its discretion, elect to settle the conversion obligation relating to the
principal amount of such Securities either in cash or a combination of cash and
Common Stock in accordance with Article 7 of the Indenture.


 


To convert a Security, a
Holder must (i) if the Security is represented by a Global Security, comply
with the Applicable Procedures, or (ii) if the Security is represented by a Certificated
Security, (a) deliver to the Conversion Agent a duly signed and completed
conversion notice set forth below, (b) deliver the Security to the Conversion
Agent, (c) deliver to the Conversion Agent appropriate endorsements and
transfer documents if required by the Conversion Agent and (d) pay any tax or
duty, if required.  A Holder may convert
a portion of a Security equal to $1,000 or any integral multiple thereof.


 


A Security in respect of
which a Holder has delivered a Fundamental Change Purchase Notice or Purchase
Notice exercising the right of such Holder to require the Company to purchase
such Security may be converted only if the Fundamental Change Purchase Notice
or Purchase Notice, as the case may be, is withdrawn in accordance with the terms
of the Indenture.


 


For so long as the
Company’s vessels operate in the United States coastwise trade, the Shipping
Act, 1916, as amended, shall require that not more than twenty-five percent
(25%) of the Company’s capital stock may be owned or controlled by Foreigners,
and the Holder of this Security shall be entitled to receive, upon conversion,
a Domestic Share Certificate only if the shares of Common Stock represented by
the Domestic Share Certificate are not to be held by or for the account of a
Foreigner.  Otherwise, the Holder of this
Security shall be entitled to receive, upon conversion, only a Foreign Share
Certificate.


 


A-8





















 


If the holder of a
Domestic Share Certificate is a Foreigner, or holds shares for the account of a
Foreigner, such certificate must be exchanged immediately for a Foreign Share
Certificate, subject to the limitations set forth below.  If the holder of a Foreign Share Certificate
is a U.S. citizen, or should shares of Common Stock which are represented by a
Foreign Share Certificate be sold or transferred to a U.S. citizen, such holder
or transferee may exchange his or its certificate for a Domestic Share
Certificate.


 


The Company’s certificate
of incorporation contains provisions limiting the aggregate percentage
ownership by Foreigners of any class of the Company’s capital stock (including
the Common Stock) to twenty-two and one-half percent (22.5%) of the outstanding
shares of such class (the “Permitted Percentage”) to ensure that such Foreign
ownership will not exceed the maximum percentage permitted by applicable law,
and authorizes the Board of Directors, under certain circumstances, to increase
the foregoing percentage to twenty-four percent (24%).


 


Any purported transfer to
Foreigners of shares of Common Stock or of an interest in shares of Common
Stock of the Company represented by a Domestic Share Certificate which
increases the aggregate ownership by Foreigners above the then Permitted
Percentage (the “Excess Shares”) will be ineffective as against the Company for
all purposes (including for purposes of voting and dividends), and such
transfer shall not be recognized or recorded on the books of the Company,
except that a subsequent transfer of such Excess Shares to a U.S. citizen would
be recognized by the Company as valid and recorded as such.  If a Holder is a Foreigner or holding for the
account of a Foreigner and the conversion will, in the good faith judgment of
the Company, increase the aggregate ownership by Foreigners above the then
Permitted Percentage, then the Holder of this Security will not be entitled to
convert this Security, or a portion hereof.


 


If the Permitted
Percentage is exceeded, the Company is authorized pursuant to its certificate
of incorporation to temporarily withhold dividends and other distributions on
the Excess Shares, pending the transfer of such shares to a U.S. citizen or a
reduction in the aggregate percentage of shares owned by Foreigners to or below
the Permitted Percentage, and to deny voting rights with respect to the Excess
Shares.  In addition, the Company is
authorized, in its discretion, to redeem (upon written notice) the Excess
Shares in order to reduce the aggregate Foreign ownership thereof to the
Permitted Percentage.  The Foreign-owned
shares to be redeemed would be selected solely by reference to the date or
dates on which such shares were acquired, starting with the most recently
acquired shares and including, in reverse chronological order, all other
acquisitions of shares by Foreigners from and after the acquisition which first
caused the Permitted Percentage to be exceeded; provided, however, that if more than one such acquisition by
Foreigners is made on a particular day which results in the Permitted
Percentage being exceeded, the selection of shares to be redeemed would be made
on a pro rata basis in proportion to the respective number of shares acquired
by each such Foreign acquiror on such date.


 


The Company will furnish
to any Holder, upon request and without charge, copies of the certificate of
incorporation and by-laws of the Company then in effect.  Any such request may be addressed to the
Company or to the Registrar.


 


A-9





















 


8.             Make – Whole Premium


 


If a Fundamental Change occurs
prior to December 20, 2009, the Company shall pay the Make-Whole Premium
to Holders of the Securities who convert their Securities in connection with a
Fundamental Change.  The Make-Whole
Premium shall be paid on the Fundamental Change Purchase Date and shall be paid
solely in shares of the Common Stock (other than cash paid in lieu of
fractional shares) or in the same form of consideration into which all or
substantially all of the shares of Common Stock have been converted or
exchanged in connection with the Fundamental Change, as described in the
Indenture.  The Make-Whole Premium shall
be equal to an applicable percentage of the principal amount of the Securities
specified in the Indenture.  The
Make-Whole Premium will be in addition to, and not in substitution for, any
cash, securities or other assets otherwise due to Holders of Securities upon
conversion as described in the Indenture.


 


9.             Denominations; Transfer;
Exchange.


 


The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000.  A Holder may
register the transfer of or exchange Securities in accordance with the
Indenture.  The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes, assessments or other governmental charges that
may be imposed in relation thereto by law or permitted by the Indenture.


 


10.           Persons Deemed Owners.


 


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


 


11.           Unclaimed Money or
Securities.


 


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


 


12.           Amendment, Supplement
and Waiver.


 


Subject to certain
exceptions, the Securities or the Indenture may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then outstanding, and an existing Default or Event of Default
with respect to the Securities and its consequence or compliance with any
provision of the Securities or the Indenture may be waived in any instance with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities then outstanding. 
Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect, omission, mistake or inconsistency or make
any change that does not adversely affect in any material respect the legal
rights under the Indenture of any Holder.


 


A-10





















 


13.           Defaults and Remedies.


 


If any Event of Default other
than as a result of certain events of bankruptcy, insolvency or reorganization
of the Company or its Significant Subsidiaries occurs and is continuing, the
principal of all the Securities then outstanding plus accrued and unpaid
interest may be declared due and payable in the manner and with the effect
provided in the Indenture.  If an Event
of Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company or its Significant Subsidiaries, the principal
amount of the Securities plus accrued and unpaid interest shall become due and
payable immediately without any declaration or other act on the part of the
Trustee or any Holder, all to the extent provided in the Indenture.


 


14.           Trustee Dealings with
the Company.


 


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


 


15.           No Recourse Against
Others.


 


No recourse under or upon
any obligation, covenant or agreement contained in the Indenture, or in this
Security, or because of any indebtedness evidenced thereby or hereby, shall be
had against any incorporator, as such, or against any past, present or future
employee, stockholder, officer or director, as such, of the Company or of any
successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issuance of
the Securities.


 


16.           Authentication.


 


This Security shall not
be valid until the Trustee or an authenticating agent manually signs the certificate
of authentication on the other side of this Security.


 


17.           Abbreviations.


 


Customary abbreviations
may be used in the name of the Holder or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= Custodian)
and UGMA (= Uniform Gifts to Minors Act).


 


18.           Indenture to Control;
Governing Law.


 


To the extent permitted
by applicable law, if any provision of this Security conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling.  This Security shall be
governed by, and construed in accordance with, the laws of the State of New
York.


 


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19.           Copies of Indenture.


 


The Company will furnish
to any Holder, upon written request and without charge, a copy of the
Indenture.  Requests may be made to:
SEACOR Holdings Inc., 460 Park Avenue, 12th Floor, New York, NY 10022, Fax no.:
212-582-8522, Attention: General Counsel.


 


[20.          Registration Rights.


 


The Holders of the
Securities are entitled to the benefits of a Registration Rights Agreement,
dated as of December 17, 2004, between the Company and the Initial
Purchaser, including, in certain circumstances, the receipt of Additional
Interest upon a registration default (as defined in such agreement).](4)


 










(4)           This
Section to be included only if the Security is a Restricted Security.


 


A-12





















 


SCHEDULE OF EXCHANGES OF SECURITIES(5)


 


The following exchanges,
redemptions, purchases or conversions of a part of this Global Security have
been made:


 


	
  Date of Decrease

  or Increase

  	
   

  	
  Authorized

  Signatory of

  Securities Custodian

  	
   

  	
  Decrease in

  Principal Amount of

  this Global Security

  	
   

  	
  Increase in Principal

  Amount of this

  Global Security

  	
   

  	
  Principal Amount of

  this Global Security

  Following Such

  Decrease or Increase

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 










(5)           This
schedule to be included only if the Security is a Global Security.


 


A-13





















 


ASSIGNMENT FORM(6)


 


To assign this Security,
fill in the form below:


 


I or we assign and
transfer this Security to


 


	
   

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

  
	
   

  
	
   

  
	
   

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

  



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


 


 


	
   

  	
   

  	
   

  	
  Your Signature:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  (Sign exactly as
  your name appears on the

  other side of this Security)

  
	
   

  	
   

  
	
  Signature
  Guaranteed

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Participant in a
  Recognized Signature

  Guarantee Medallion Program

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  
						



 










(6)           This
Form and the following Forms to be included only if the Security is a
Certificated Security.


 


A-14





















 


FORM OF CONVERSION NOTICE


 


To convert this Security
into shares of Common Stock of the Company (or cash or a combination of shares
of Common Stock and cash, if the Company so elects), check the box o


 


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


 


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


 


	
   

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

  
	
   

  
	
   

  
	
   

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

  



 


 


The undersigned (the
“Applicant”) hereby makes application for the issuance of record to the name of
the Applicant of shares of Common Stock and hereby certifies to the Company
that:


 


	
  The Applicant

  	
   

  	
  IS o

  	
   

  	
  IS NOT o

  	
   

  	
  a “Foreigner.”*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Applicant

  	
   

  	
  WILL o

  	
   

  	
  WILL NOT o

  	
   

  	
  hold or control
  the shares 

  
	
  applied for, or
  any of them, or any interest in any of them, for or on behalf of a
  “Foreigner.”

  



 


The Applicant hereby
agrees that, promptly after request of the Company, he or it will furnish such
proof in support of this certification as the Company or the registrar for the
Common Stock may, from time to time, request.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Your Signature:

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  
	
   

  
	
  Signature Guaranteed

  
	
   

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  
	
  Guarantee Medallion Program

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
						



 


A-15





















 










* Definition of
“Foreigner”


 


A “Foreigner” is:


 


(a)           any
foreign government or the representative thereof;


 


(b)           any
corporation of which its president, chief executive officer (or equivalent
position) or chairman of the board of directors, or Person authorized to act in
the absence or disability of any of them, is a Foreigner, or of which more than
a minority of its directors necessary to constitute a quorum are Foreigners;


 


(c)           any
corporation, partnership or association which is not organized under the laws
of the United States or a state, territory, district or possession thereof;


 


(d)           any
corporation of which a twenty-five percent (25%) or greater interest is owned
beneficially or of record by, or may be voted by, Persons who are Foreigners,
or which by any other means whatsoever is controlled by or in which control is
permitted to be exercised by Persons who are Foreigners;


 


(e)           any
partnership one or more of the general partners of which are Foreigners, or any
partnership or association of which a twenty five percent (25%) or greater
interest is owned beneficially or of record by Foreigners or which by any other
means is controlled by Foreigners; or


 


(f)            any
other Person who is not a citizen of the United States as defined under
applicable U.S. maritime laws;


 


(g)           any
Person who acts as a representative or fiduciary for a Person described in
clauses (a) through (f) above.


 


NOTICE:                This
certification constitutes a basis for the Company’s representation to the
United States Government that it is a citizen within the meaning of the
Shipping Act, 1916, as amended. Any person making a statement herein which he
or it knows to be false may be proceeded against under Title 18, United States
Code, Section 1001, which section provides penalties of up to five
years imprisonment or a fine of up to $10,000.


 


A-16





















 


FORM OF PURCHASE NOTICE


 


U.S. Bank National
Association

60 Livingston Avenue


St. Paul, MN 55107


Attention:  Corporate Trust Services


 


Re:          SEACOR
Holdings Inc. (the “Company”)

2.875% Convertible Senior Debentures due December 15,
2024


 


This is a Purchase Notice
as defined in Section 4.1(c) of the Indenture, dated as of December 17,
2004 (the “Indenture”), between the Company and U.S. Bank National Association,
as Trustee.  Terms used but not defined
herein shall have the meanings ascribed to them in the Indenture.


 


Certificate No(s).
of Securities:


 


I intend to
deliver the following aggregate principal amount of Securities for purchase by
the Company pursuant to Article 4 of the Indenture (in multiples of
$1,000):


 


$


 


I hereby agree that the
Securities will be purchased on the Purchase Date pursuant to the terms and
conditions specified in paragraph 6 of the Securities and in the Indenture.


 


	
   

  	
  Signed:

  	
   

  



 


A-17





















 


FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE


 


U.S. Bank National
Association


60 Livingston Avenue


St. Paul, MN 55107


Attention:  Corporate Trust Services


 


Re:          SEACOR
Holdings Inc. (the “Company”)

2.875% Convertible Senior Debentures due December 15,
2024


 


This is a Fundamental
Change Purchase Notice as defined in Section 5.1(c) of the Indenture,
dated as of December 17, 2004 (the “Indenture”), between the Company and
U.S. Bank National Association, as Trustee. 
Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.


 


Certificate No(s).
of Securities:


 


I intend to deliver the
following aggregate principal amount of Securities for purchase by the Company
pursuant to Article 5 of the Indenture (in multiples of $1,000):


 


$


 


I hereby agree that the
Securities will be purchased on the Fundamental Change Purchase Date pursuant
to the terms and conditions specified in paragraph 6 of the Securities and in
the Indenture.


 


	
   

  	
  Signed:

  	
   

  



 


 


A-18





















 


EXHIBIT B


 


CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF RESTRICTED SECURITIES(7)


 


Re:          2.875%
Convertible Senior Debentures due December 15, 2024 

(the “Securities”) of SEACOR Holdings Inc.


 


This certificate relates
to
$                        principal
amount of Securities owned in (check applicable box):


 


	
  o

  	
  book-entry or

  	
  o

  	
  definitive form
  by                        
  (the “Transferor”).

  



 


The Transferor has
requested a Registrar or the Trustee to exchange or register the transfer of
such Securities.  In connection with such
request and in respect of each such Security, the Transferor does hereby certify
that the Transferor is familiar with transfer restrictions relating to the
Securities as provided in Section 2.12 of the Indenture, dated as of December 17,
2004, between SEACOR Holdings Inc. and U.S. Bank National Association, as
trustee (the “Indenture”), and the transfer of such Security is being made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”) (check applicable box) or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):


 


o            Such Security is being
transferred pursuant to an effective registration statement under the
Securities Act.


 


o            Such Security is being
acquired for the Transferor’s own account, without transfer.


 


o            Such Security is being
transferred to the Company or a Subsidiary (as defined in the Indenture) of the
Company.


 


o            Such Security is being
transferred to a person the Transferor reasonably believes is a “qualified
institutional buyer” (as defined in Rule 144A or any successor provision
thereto (“Rule 144A”) under the Securities Act) that is purchasing for its own
account or for the account of a “qualified institutional buyer”, in each case
to whom notice has been given that the transfer is being made in reliance on
such Rule 144A, and in each case in reliance on Rule 144A.


 


o            Such Security is being
transferred pursuant to and in compliance with an exemption from the
registration requirements under the Securities Act in accordance with Rule 144
(or any successor thereto) (“Rule 144”) under the Securities Act.


 


o            Such Security is being
transferred to a non-U.S. Person in an offshore transaction in compliance with
Rule 904 of Regulation S under the Securities Act (or any successor thereto).


 










(7)           This
certificate to be included only if the Security is a Restricted Security.


 


B-1





















 


o            Such Security is being
transferred pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act (other than an exemption
referred to above) and as a result of which such Security will, upon such
transfer, cease to be a “restricted security” within the meaning of Rule 144
under the Securities Act.


 


The Transferor acknowledges
and agrees that, if the transferee will hold any such Securities in the form of
beneficial interests in a Global Security that is a “restricted security”
within the meaning of Rule 144 under the Securities Act, then such transfer can
be made only (x) pursuant to Rule 144A under the Securities Act to a transferee
that the transferor reasonably believes is a “qualified institutional buyer,”
as defined in Rule 144A, or (y) pursuant to Regulation S under the Securities
Act.


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s) of Transferor

  	
   

  
	
   

  
	
   

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

  
	
   

  
	
  Signature
  Guaranteed

  
	
   

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  	
   

  
	
  Guarantee Medallion
  Program

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
					



 


B-2





















 


IN WITNESS WHEREOF,


 


	
   

  	
  [

  	
  ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


B-3