Exhibit
4.1


 


Execution
Copy


 


FLEETWOOD ENTERPRISES, INC.


 


 


5.00% Convertible Senior Subordinated Notes due 2023


 












 


INDENTURE


 


Dated as of December 22, 2003


 












 


THE BANK OF NEW YORK


 


TRUSTEE


 












 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  
	
  DEFINITIONS
  AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Other Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.4

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.5

  	
  Acts of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Title and Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1A

  	
  Form and Dating

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Execution and Authentication

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  Registrar, Paying Agent and Conversion
  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; Determinations of
  Holders’ Action

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.9

  	
  Temporary Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  Cancellation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  Defaulted Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.12

  	
  Persons Deemed Owners

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.13

  	
  Global Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.14

  	
  CUSIP Numbers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  REDEMPTION AND REPURCHASE AT
  THE OPTION OF HOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Company’s Right to Redeem; Notices to
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Selection of Securities to Be Redeemed

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Redemption Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Effect of Redemption Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Deposit of Redemption Price

  	
   

  



 


i

















 


	
  Section 3.6

  	
  Securities Redeemed in Part

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Repurchase Rights at the Option of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Effect of Repurchase Notice; Withdrawal

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  Deposit of Repurchase Price

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Securities Repurchased in Part

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  Covenant to Comply With Securities Laws
  Upon Repurchase of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Repayment to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Payment of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  SEC and Other Reports

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  Further Instruments and Acts

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Maintenance of Office or Agency

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Delivery of Certain Information

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Statement by Officers as to Default

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.8

  	
  Additional Amounts Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  When Company May Merge or Transfer Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Acceleration

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Other Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Waiver of Past Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Control by Majority

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  Limitation on
  Suits

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Rights of Holders to Receive Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  Collection Suit by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Trustee May File Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Priorities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.11

  	
  Undertaking for Costs

  	
   

  



 


ii

















 


	
  Section 6.12

  	
  Waiver of Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.13

  	
  Not Responsible for Recitals or Issuance
  of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Duties of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  Individual Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Trustee’s Disclaimer

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.5

  	
  Notice of Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.6

  	
  Reports by Trustee to Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.7

  	
  Compensation and Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.8

  	
  Replacement of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.9

  	
  Successor Trustee by Merger

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.11

  	
  Preferential Collection of Claims Against
  Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Without Consent of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  With Consent of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.3

  	
  Compliance with Trust Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.4

  	
  Revocation and Effect of Consents, Waivers
  and Actions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.5

  	
  Notation on or Exchange of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.6

  	
  Trustee to Sign Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.7

  	
  Effect of Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
  CONVERSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Conversion Right and Conversion Price

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Conversion Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Settlement Procedures Upon Conversion Prior
  to the Stockholder Approval

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.4

  	
  Settlement Procedures Upon Conversion After
  the Stockholder Approval

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.5

  	
  Fractional Shares

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.6

  	
  Company to Provide Stock

  	
   

  



 


iii

















 


	
  Section 9.7

  	
  Adjustment of Conversion Rate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.8

  	
  Consolidation or Merger of the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.9

  	
  Notice of Adjustment

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.10

  	
  Notice in Certain Events

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.11

  	
  Taxes on Conversion

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.12

  	
  Conversion After Interest Payment Record
  Date

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.13

  	
  Company Determination Final

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.14

  	
  Responsibility of Trustee for Conversion
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.15

  	
  Unconditional Right of Holders to Convert

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
  SUBORDINATION OF THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Agreement to Subordinate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.2

  	
  Liquidation, Dissolution, Bankruptcy

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.3

  	
  Default on Designated Senior Indebtedness
  of the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.4

  	
  Acceleration of Payment of Securities

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.5

  	
  When Distribution Must Be Paid Over

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.6

  	
  Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.7

  	
  Relative Rights

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.8

  	
  Subordination May Not Be Impaired

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.9

  	
  Rights of Trustee and Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.10

  	
  Distribution or Notice to Representative

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.11

  	
  Not to Prevent Events of Default or Limit
  Right to Accelerate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.12

  	
  Trustee Entitled to Rely

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.13

  	
  Trustee to Effectuate Subordination

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.14

  	
  Trustee Not Fiduciary for Holders of
  Senior Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.15

  	
  Reliance by Holders of Senior
  Indebtedness on Subordination Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.16

  	
  Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Trust Indenture Act Controls

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.3

  	
  Communication by Holders with Other
  Holders

  	
   

  



 


iv

















 


	
  Section 11.4

  	
  Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.5

  	
  Statements Required in Certificate or
  Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.6

  	
  Separability Clause

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.7

  	
  Rules by Trustee, Paying Agent, Conversion
  Agent and  Registrar

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.8

  	
  Legal Holidays

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.9

  	
  GOVERNING LAW; WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.10

  	
  No Recourse Against Others

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.11

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.12

  	
  Multiple Originals

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.13

  	
  Effect of Headings and Table of Contents

  	
   

  



 


	
  EXHIBIT A

  	
  Form of Global Security

  	
   

  
	
  EXHIBIT B

  	
  Form of
  Certificated Security

  	
   

  
	
  EXHIBIT C

  	
  Transfer
  Certificate

  	
   

  



 


v

















 


INDENTURE dated as of December 22, 2003 between FLEETWOOD ENTERPRISES,
INC., a Delaware corporation (“Company”), and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (“Trustee”).


 


Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company’s 5.00% Convertible
Senior Subordinated Notes due 2023:


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.1                                      Definitions.


 


“144A Global Security” means a permanent Global Security in the form of
the Security attached hereto as Exhibit A, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.


 


“Additional Amounts” shall have the meaning ascribed to it 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 the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.


 


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


 


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


 


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


 


“Board Resolution” means a resolution of the Board of Directors.


 


“Business Day” means a day other than a Saturday or a Sunday or other
day on which banking institutions in The City of New York are authorized to
close.


 


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


 

















 


“Cash Equivalents” means (i) any evidence of Indebtedness issued or
directly and fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having maturities of not more than one year
from the date of acquisition, (ii) certificates of deposit and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers’ acceptances with maturities not exceeding one year and overnight bank
deposits, in each case with any domestic commercial bank having capital and
surplus in excess of $250.0 million and a Thompson Bank Watch Rating of “B” or
better, or whose short-term debt has the highest rating obtainable from Moody’s
Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Corporation
(“S&P”), (iii) any money market deposit account issued or offered by a
domestic commercial bank having capital and surplus in excess of $250.0 million
and a Thompson Bank Watch Rating of “B” or better, or whose short-term debt has
the highest rating obtainable from Moody’s or S&P, (iv) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (i) and (ii) above entered into with any
financial institution meeting the qualifications specified in clause (ii)
above, and (v) commercial paper having the highest rating obtainable from Moody’s
or S&P, and in each case maturing within one year after the date of
acquisition.


 


“Certificated Securities” means Securities that are in the form of the
Securities attached hereto as Exhibit B.


 


“Common Stock” shall mean the Common Stock, $1.00 par value per share,
of the Company existing on the date of this Indenture or any other shares of
Capital Stock of the Company into which such Common Stock shall be reclassified
or changed.


 


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


 


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


 


“Conversion Price” means $1,000 divided by the Conversion Rate,
initially $11.76 per share of Common Stock.


 


“Conversion Rate” means the number of shares of Common Stock into which
each $1,000 of principal amount of Securities is convertible, which is
initially 85.0340 shares, subject to adjustments as set forth in this
Indenture.


 


“Conversion Value” per each $1,000 principal amount of Securities means
the product of the Sale Price of a share of Common Stock on a given day
multiplied by the Conversion Rate in effect.


 


“Corporate Trust Office” means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 101 Barclay Street, Floor 8W, New York,
New York 10286, Attention:  Corporate
Trust Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee


 


2

















 


(or such other address as a successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


“Credit Facility” means the Credit Agreement dated July 27, 2001, among
the Company, Bank of America et al. as lenders, as the same may be amended,
modified, supplemented, extended, renewed, restated, refinanced, restructured
or replaced in whole or in part from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplements or modifications of the foregoing),
whether with the present lender or any other lenders.


 


“Default” means an event which, with the giving of notice or the lapse
of time, or both, would become an Event of Default.


 


“Defaulted Interest” has the meaning assigned to it in Section 2 of the
Form of Reverse of Global Security contained in Exhibit A.


 


“Designated Senior Indebtedness” means (i) Indebtedness outstanding
under or in respect of the Credit Facility and (ii) after payment in full of
all Obligations under or in respect of the Credit Facility, any other Senior
Indebtedness permitted under this Indenture, the principal amount of which is
$25.0 million or more and that has been designated by the Company as
“Designated Senior Indebtedness.”


 


“Ex-Dividend Time” means, with respect to any issuance or distribution
on shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
Common Stock are then traded without the right to receive such issuance or
distribution.


 


“Global Securities” means Securities that are in the form of the
Securities attached hereto as Exhibit A, and that are registered in the
register of Securities in the name of a Depositary or a nominee thereof, and to
the extent that such Securities are required to bear the Legend required by
Section 2.6, such Securities will be in the form of a 144A Global
Security.


 


“Holder” or “Securityholder” means a 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, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker’s acceptances
or representing capital lease obligations or the balance deferred and unpaid of
the purchase price of any property or representing any hedging obligations if
and to the extent any of the foregoing indebtedness (other than letters of
credit and hedging obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with generally accepted accounting
principles, as well as all indebtedness of others secured by a lien on any
assets of such Person (whether or not such indebtedness is assumed by such
Person) and, to the extent not otherwise included, the guarantee by such Person
of any indebtedness of any other Person.


 


3

















 


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


 


“Initial Purchaser” means Lehman Brothers Inc.


 


“Interest Payment Date” means the stated due date of an installment of
interest on the Securities as specified in Section 2 of the Form of Reverse of
Global Security contained in Exhibit A.


 


“Interest Payment Record Date” means the May 31 and November 30
preceding an Interest Payment Date.


 


“Issue Date” of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.


 


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


 


“Officers’ Certificate” means a written certificate containing the
information specified in Sections 11.4 and 11.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers’
Certificate given pursuant to Section 4.3 shall be signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company but need not contain the information specified in Sections 11.4
and 11.5.


 


“Opinion of Counsel” means a written opinion containing the information
specified in Sections 11.4 and 11.5. The counsel may be an employee of, or
counsel to, the Company.


 


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


 


“Purchase Agreement” means the Purchase Agreement, dated December 16,
2003, between the Company and the Initial Purchaser relating to the sale and
purchase of the Securities.


 


“Redemption Date” or “redemption date” means the date specified for
redemption of the Securities in accordance with the terms of the Securities and
this Indenture.


 


“Redemption Notice” shall have the meaning set forth in Section 3.3.


 


“Redemption Price” shall have the meaning set forth in
Section 3.1.


 


“Registration Rights Agreement” means the Registration Rights
Agreement, dated as of the date hereof, between the Company and the Initial
Purchaser.


 


4

















 


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


 


“Restricted Security” means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A and B of this
Indenture.


 


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


 


“Sale Price” of a security on any date of determination means:


 


(i)                                     the
closing sale price for each such security (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on that date
as reported in composite transactions for the principal U.S. securities
exchange on which such security is so traded, or, if such security is not so
listed on a U.S. national or regional securities exchange, as so reported by
the Nasdaq National Market;


 


(ii)                                  if
such security is not so reported on the date of determination, the last quoted
bid price in the over-the-counter market on such date as reported by the
National Quotation Bureau or similar organization;


 


(iii)                               if
such security is not so quoted, the average of the mid-points of the last bid
and ask prices for that security (in the case of the Securities, $5.0 million
aggregate principal amount of the Securities) from three nationally recognized
independent investment banking firms selected by the Company for this purpose;


 


(iv)                              if
such security is not so quoted, the average of the mid-points of the last bid
and ask prices for such security (in the case of the Securities, $5.0 million
aggregate principal amount of the Securities) on such date from two nationally
recognized independent investment banking firms selected by the Company for
this purpose;


 


(v)                                 if
such security is not so quoted, the mid-point of the last bid and ask prices
for such security (in the case of the Securities, $5.0 million aggregate
principal amount of the Securities) on such date from a nationally recognized
independent investment banking firm selected by the Company for this purpose;
or


 


(vi)                              in
the case of the Securities, if such bid and ask prices are not reasonably
obtainable from such dealer, then the “Sale Price” of the Securities shall
equal (a) the Conversion Rate in effect of the Securities multiplied by (b) the
Sale Price of the Common Stock on such date of determination.


 


“SEC” means the Securities and Exchange Commission.


 


5

















 


“Security” or “Securities” means any of the Company’s 5.00% Convertible
Senior Subordinated Notes due 2023, as amended or supplemented from time to
time, issued under this Indenture.


 


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


 


“Senior Indebtedness” means (i) all existing and future Indebtedness
outstanding under or in respect of the Credit Facility, including, without limitation,
all loans, letters of credit or other extensions of credit under the Credit
Facility, and all Indebtedness under any other credit facilities and all
hedging obligations with respect thereto, (ii) any other existing and future
Indebtedness incurred by the Company, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Securities, and (iii) all principal,
premium, if any, and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization, whether or not a
claim for post-filing interest is allowed in such proceeding), penalties, fees,
charges, expenses, indemnification, reimbursement obligations, damages,
guarantees and other liabilities or amounts payable under the documentation
governing any Indebtedness referred to in clauses (i) and (ii) above.  Notwithstanding anything to the contrary in
the foregoing, “Senior Indebtedness” will not include (i) any liability for
federal, state, local or other taxes owed or owing by the Company, (ii) any
Indebtedness of the Company to any of its subsidiaries or other affiliates, or
(iii) any trade payables.


 


“Significant Subsidiary” or “Significant Subsidiaries” shall have the
meaning ascribed to such term in Rule 405 of the Securities Act.


 


“Stated Maturity”, when used with respect to any Security, means
December 15, 2023.


 


“Stockholder Approval” means (i) the authorization and approval by the
Company’s stockholders in accordance with the Company’s bylaws and applicable
law of the amendment to the Company’s Restated Certificate of Incorporation to
increase the authorized number of shares of Common Stock to at least 77,507,515
shares and (ii) the authorization and reservation of an additional 2,507,515
shares by the Board of Directors of the Company free from any preemptive rights
to be made available for issuance by the Company upon conversion of the
Securities.


 


“Subsidiary” means any Person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.


 


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


 


“Trading Day” means a 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


 


6

















 


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 or, if the Common
Stock is not quoted on the National Association of Securities Dealers Automated
Quotation System, on the principal other market on which the Common Stock is
then traded; provided that no day on which the Common Stock experiences any of
the following at any time shall count as a Trading Day:


 


(a)                                  any
suspension of or limitation imposed on trading of the Common Stock on any
national or regional securities exchange or association or over-the-counter
market,


 


(b)                                 any
event (other than an event listed in the (c) below) that in the good faith
judgment of the Company, as notified in writing to the Trustee and the
Conversion Agent, disrupts or impairs the ability of market participants in
general to (i) effect transactions in or obtain market values for the Common
Stock on any relevant national or regional securities exchange or association
or over-the-counter market, 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 association or
over-the-counter market, or


 


(c)                                  any
relevant national or regional securities exchange or association or
over-the-counter market on which the Common Stock trades closes on any exchange
Business Day prior to its scheduled closing time unless such earlier closing
time is announced by the exchange at least one hour prior to the earlier of (i)
the actual closing time for the regular trading session on such exchange and
(ii) the submission deadline for orders to be entered into the exchange for
execution on such Business Day.


 


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


 


“Volume Weighted Average Price” per share on any Trading Day will be
the volume weighted average price on the New York Stock Exchange from 9:30 a.m.
to 4:00 p.m. (New York City time) on that Trading Day as displayed on Bloomberg
(Bloomberg keystrokes: FLE Equity VAP) (or if such volume weighted average
price is not available, the market value of one share on such Trading Day as
the Company determines in good faith using a volume weighted method).


 


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


 


7

















 


Section 1.2                                      Other
Definitions.


 


	
  Term:

  	
   

  	
  Section
  defined in:

  
	
   

  	
   

  	
   

  
	
  “Act”

  	
   

  	
  1.5

  
	
  “Additional Amounts
  Notice”

  	
   

  	
  4.8

  
	
  “Additional Interest”

  	
   

  	
  9.6(b)

  
	
  “Agent Members”

  	
   

  	
  2.13(e)(5)

  
	
  “beneficial owner”

  	
   

  	
  3.7(b)(2)

  
	
  “Capped Shares”

  	
   

  	
  9.6(a)

  
	
  “Cash Amount”

  	
   

  	
  9.4(a)(4)(iii)

  
	
  “Cash Settlement
  Averaging Period”

  	
   

  	
  9.4(a)(3)

  
	
  “Cash Settlement Notice
  Period”

  	
   

  	
  9.2(b)

  
	
  “Change of Control”

  	
   

  	
  3.7(b)(1)

  
	
  “Change of Control
  Company Notice”

  	
   

  	
  3.7(c)

  
	
  “Change of Control
  Repurchase Date”

  	
   

  	
  3.7(b)(1)

  
	
  “Change of Control
  Repurchase Price”

  	
   

  	
  3.7(b)(1)

  
	
  “Change of Control Repurchase
  Right”

  	
   

  	
  3.7(b)(1)

  
	
  “Common Stock
  Restrictive Legend”

  	
   

  	
  2.6(f)

  
	
  “Company Notice”

  	
   

  	
  3.7(c)

  
	
  “Continuing Director”

  	
   

  	
  3.7(b)(1)

  
	
  “Conversion Agent”

  	
   

  	
  2.3

  
	
  “Conversion Obligation”

  	
   

  	
  9.2(b)

  
	
  “Conversion Retraction
  Period”

  	
   

  	
  9.4(a)(2)

  
	
  “Conversion Trigger
  Price”

  	
   

  	
  9.1(b)(1)

  
	
  “Depositary”

  	
   

  	
  2.1A(a)

  
	
  “distributed assets”

  	
   

  	
  9.7(d)

  
	
  “DTC”

  	
   

  	
  2.1A(a)

  
	
  “Event of Default”

  	
   

  	
  6.1

  
	
  “Exchange Act”

  	
   

  	
  2.13(e)(1)

  
	
  “Expiration Time”

  	
   

  	
  9.7(f)

  
	
  “Fair Market Value”

  	
   

  	
  9.7(g)

  
	
  “Final Notice Date”

  	
   

  	
  9.4(a)

  
	
  “issuer tender offer”

  	
   

  	
  3.11

  
	
  “Legal Holiday”

  	
   

  	
  11.8

  
	
  “Legend”

  	
   

  	
  2.6(f)

  
	
  “Market Price”

  	
   

  	
  3.7(a)(4)

  
	
  “Non-Electing Share”

  	
   

  	
  9.8

  
	
  “Nonpayment Default”

  	
   

  	
  10.3(a)(2)

  
	
  “Notice of Default”

  	
   

  	
  6.1(8)

  
	
  “Optional Repurchase
  Date”

  	
   

  	
  3.7(a)(1)

  
	
  “Optional Repurchase
  Right”

  	
   

  	
  3.7(a)(1)

  
	
  “Optional Repurchase
  Right Company Notice”

  	
   

  	
  3.7(c)

  
	
  “Optional Repurchase
  Right Company Notice Date”

  	
   

  	
  3.7(c)

  
	
  “Optional Repurchase
  Price”

  	
   

  	
  3.7(a)(1)

  
	
  “Pay the Securities”

  	
   

  	
  10.3(a)

  
	
  “Paying Agent”

  	
   

  	
  2.3

  
	
  “Payment Blockage
  Notice”

  	
   

  	
  10.3(a)(2)

  
	
  “Payment Blockage
  Period”

  	
   

  	
  10.3(b)(2)

  
	
  “Payment Default”

  	
   

  	
  10.3(a)(1)

  



 


8

















 


	
  Term:

  	
   

  	
  Section
  defined in:

  
	
   

  	
   

  	
   

  
	
  “Purchased Shares”

  	
   

  	
  9.7(f)(1)

  
	
  “QIB”

  	
   

  	
  2.1A(a)

  
	
  “Record Date”

  	
   

  	
  9.7(g)

  
	
  “Registrar”

  	
   

  	
  2.3

  
	
  “Repurchase Date”

  	
   

  	
  3.7(b)(1)

  
	
  “Repurchase Notice”

  	
   

  	
  3.7(d)

  
	
  “Repurchase Price”

  	
   

  	
  3.7(b)(1)

  
	
  “Repurchase Right”

  	
   

  	
  3.7(b)(1)

  
	
  “Rule 144A Information”

  	
   

  	
  4.6

  
	
  “Second Stockholder
  Approval Deadline”

  	
   

  	
  9.6(b)

  
	
  “Securities Act”

  	
   

  	
  2.6(f)

  
	
  “Special Record Date”

  	
   

  	
  2.11(a)

  
	
  “Spin-Off”

  	
   

  	
  9.7(d)

  
	
  “Stockholder Approval
  Deadline”

  	
   

  	
  9.6(b)

  
	
  “Stockholder Approval
  Default”

  	
   

  	
  9.6(b)

  
	
  “Third Stockholder
  Approval Deadline”

  	
   

  	
  9.6(b)

  
	
  “transfer”

  	
   

  	
  2.13(d)

  
	
  “Trigger Event”

  	
   

  	
  9.7(d)

  



 


Section 1.3                                      Incorporation
by Reference of Trust Indenture Act. 
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:


 


“indenture securities” means the Securities.


 


“indenture security holder” means a Securityholder.


 


“indenture to be qualified” means this Indenture.


 


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


 


“obligor” on the indenture securities means the Company.


 


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


 


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


 


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


 


(2)                                  an
accounting term not otherwise defined has the meaning assigned to it in
accordance with U.S. generally accepted accounting principles as in effect from
time to time;


 


(3)                                  “or”
is not exclusive;


 


9

















 


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


 


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


 


Section 1.5                                      Acts
of Holders.


 


(a)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company, as
described in Section 11.2.  Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of Holders signing such
instrument or instruments.  Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.


 


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


 


(c)                                  The
principal amount and serial number of any Security and the ownership of
Securities shall be proved by the register for the Securities.


 


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


 


(e)                                  If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its
option, by or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders for
the purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such


 


10

















 


request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.


 


ARTICLE II


 


THE SECURITIES


 


Section 2.1                                      Title
and Terms.


 


(a)                                  The
Securities shall be known and designated as the “5.00% Convertible Senior
Subordinated Debentures due 2023” of the Company.  The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000
except for Securities authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of other Securities pursuant to
Section 2.6, 2.7, 2.8, 2.13, 3.7, 3.10, or 9.1.  The Securities shall be issuable in denominations of $1,000 or
integral multiples thereof.


 


(b)                                 The
Securities shall mature on December 15, 2023.


 


(c)                                  Interest
shall accrue from December 22, 2003 at the interest rate until the principal
thereof is paid or made available for payment. 
Interest (including Additional Interest and Additional Amounts, if any)
shall be payable semiannually in arrears on each Interest Payment Date
commencing on June 22, 2004.  Interest
(including Additional Interest and Additional Amounts, if any) on the
Securities shall be paid to the Holder in whose name this Security (or a
predecessor Security) is registered at the close of business on the Interest
Payment Record Date (whether or not a Business Day) preceding an Interest
Payment Date, except (a) that interest payable on the Stated Maturity
shall be payable to the Holder to whom the principal is payable,
(b) Default Interest (as defined below) shall be payable as set forth in
the Indenture and (c) as otherwise specified herein or in the
Indenture.  If the Stated Maturity or an
Interest Payment Date falls on a day that is not a Business Day, the payment
due at the Stated Maturity or on such Interest Payment Date will be made on the
following day that is a Business Day as if it were made on the date such
payment was due and no interest shall accrue on the amount so payable for the
period from and after such Stated Maturity or Interest Payment Date, as the
case may be.


 


(d)                                 Interest
on the Securities shall be computed (i) for any full semi-annual period
for which a particular interest rate is applicable, on the basis of a 360-day
year of twelve 30-day months and (ii) for any period for which a
particular interest rate is applicable for less than a full semi-annual period
for which interest is calculated, on the basis of a 30-day month and, for such
periods of less than a month, the actual number of days elapsed over a 30-day
month.


 


If this Security is redeemed or repurchased by the Company on a date
that is after the Interest Payment Record Date and prior to the corresponding
Interest Payment Date, interest, Additional Interest and Additional Amounts, if
any, accrued and unpaid hereon to but not


 


11

















 


including the applicable Redemption Date or Repurchase
Date, as the case may be, shall be paid to the same Holder to whom the Company
pays the principal of this Security.


 


Except as set forth in Section 9.12, if any Securities are surrendered
for conversion on any day other than an Interest Payment Date, the Holder of
such Securities shall not be entitled to receive cash in respect of any
interest that has accrued on such Securities since the prior Interest Payment
Date.


 


(e)                                  Principal
of, and premium, if any, and interest (including Additional Interest and
Additional Amounts, if any) on Global Securities shall be payable to the
Depositary in immediately available funds.


 


(f)                                    Principal
on Certificated Securities shall be payable at the office or agency of the
Company maintained for such purpose, initially the Corporate Trust Office.  Interest (including Additional Interest and
Additional Amounts, if any) on Certificated Securities will be payable by
(i) U.S. Dollar check drawn on a bank in The City of New York mailed to
the address of the Person entitled thereto as such address shall appear in the
Register, or (ii) upon application to the Registrar not later than the
relevant Interest Payment Record Date by a Holder of an aggregate principal
amount of Securities in excess of $5,000,000, wire transfer in immediately
available funds (wire transfer instructions for which shall be received by the
Trustee no later than 15 days prior to an Interest Payment Date), which
application shall remain in effect until the Holder notifies, in writing, the Registrar
and the Trustee to the contrary.


 


(g)                                 The
Securities shall be redeemable at the option of the Company as provided in
Article 3.


 


(h)                                 The
Securities shall be repurchaseable by the Company at the option of Holders as
provided in Article 3.


 


(i)                                     The
Securities shall be convertible at the option of the Holders as provided in
Article 9.


 


(j)                                     The
Securities shall be the Company’s unsecured senior subordinated obligations as
provided in Article 10.


 


(k)                                  The
Securities shall accrue Additional Interest if the Company fails to amend the
Restated Certificate of Incorporation to increase its authorized capital as
provided in Section 9.6.  The Securities
shall accrue Additional Amounts if the Company fails to comply with certain
obligations under the Registration Rights Agreement.


 


Section 2.1A                            Form
and Dating.  The Securities and the
Trustee’s certificate of authentication shall be substantially in the form of
Exhibits A and B, which shall constitute, and are expressly made, a part of
this Indenture, and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture expressly agree to such terms
and provisions and to be bound thereby. 
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage, which shall be provided in writing by the
Company to the Trustee.  Each Security
shall be dated the date of its authentication.


 


12

















 


(a)                                  144A
Global Securities.  Securities
offered and sold within the United States to qualified institutional buyers as
defined in Rule 144A (“QIBs”) in reliance on Rule 144A shall be issued
initially in the form of a 144A Global Security, which shall be deposited with
the Trustee at its Corporate Trust Office, as custodian for the Depositary (as
defined below) and registered in the name of The Depository Trust Company
(“DTC”) or the nominee thereof (DTC, or any successor thereto, and any such
nominee being hereinafter referred to as the “Depositary”), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.  The aggregate principal amount of the 144A
Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary as
hereinafter provided.


 


(b)                                 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, repurchases and conversions.


 


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.


 


(c)                                  Book-Entry
Provisions.  This
Section 2.1A(c) shall apply only to Global Securities deposited with or on
behalf of the Depositary.


 


The Company shall execute and the Trustee shall, in accordance with
this Section 2.1A(c), authenticate and deliver initially one or more
Global Securities that (a) shall be registered in the name of the Depositary,
(b) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instructions and (c) shall be substantially in the form of
Exhibit A attached hereto; provided that the Legend (other than the first
and second paragraphs thereof) may be removed from such Global Security on
satisfaction of the conditions specified in this Indenture.


 


(d)                                 Certificated
Securities.  Securities not issued
as interests in the Global Securities will be issued in certificated form
substantially in the form of Exhibit B attached hereto; provided that the
Legend may be removed from such Securities on satisfaction of the conditions
specified in this Indenture.


 


Section 2.2                                      Execution
and Authentication.  The Securities
shall be executed on behalf of the Company by any Officer.  The signature of the Officer on the Securities
may be manual or facsimile.


 


Securities bearing the manual or facsimile signatures of individuals
who were Officers at the time of the execution of the Securities shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication


 


13

















 


and delivery of such Securities or did not hold such
offices at the date of authentication of such Securities.


 


No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder.


 


The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount of up to $100,000,000 upon one or more
Company Orders without any further action by the Company (other than as
contemplated in Section 11.4 and Section 11.5 hereof).  The aggregate principal amount of the
Securities due at the Stated Maturity thereof outstanding at any time may not
exceed the amount set forth in the foregoing sentence.


 


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


 


The Securities shall bear interest on the principal amount of the
Securities at the interest rate of 5.00% per annum from the date of issuance
until repayment in full at December 15, 2023, or until an earlier conversion,
redemption or repurchase, and such interest shall be paid on this Security
semi-annually in arrears on June 15 and December 15 of each year commencing
June 15, 2004.


 


Section 2.3                                      Registrar,
Paying Agent and Conversion 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 purchase or payment (“Paying
Agent”) and an office or agency where Securities may be presented for conversion
(“Conversion Agent”).  The Registrar
shall keep a register of the Securities and of their transfer and
exchange.  The Company may have one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents.  The term
Paying Agent includes any additional paying agent, including any named pursuant
to Section 4.5. The term Conversion Agent includes any additional
conversion agent, including any named pursuant to Section 4.5.


 


The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (in each case, if
such Registrar, agent or co-registrar is a Person other than the Trustee).  The agreement shall implement the provisions
of this Indenture that relate to such agent. 
The Company shall notify the Trustee in writing of the name and address
of any such agent.  If the Company fails
to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 7.7.  The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.


 


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


 


14

















 


Section 2.4                                      Paying
Agent to Hold Money and Securities in Trust.  Except as otherwise provided herein, on or prior to 10:00 a.m.
New York City time on each due date of payments in respect of any Security, the
Company shall deposit with the Paying Agent a sum of money (in immediately
available funds if deposited on the due date) and, if permitted hereunder,
Common Stock sufficient to make such payments when so becoming due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all amounts held by
the Paying Agent for the making of payments in respect of the Securities and
shall notify the Trustee of any default by the Company in making any such
payment.  At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all amounts so held in
trust.  If the Company, a Subsidiary or
an Affiliate of either of them acts as Paying Agent, it shall segregate the
amounts held by it as Paying Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to pay all amounts held by it to the Trustee and to account for any funds
and Common Stock disbursed by it.  Upon
doing so, the Paying Agent shall have no further liability for such amounts.


 


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 Securityholders.  If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee at least semi-annually on
January 1 and July 1 a listing of Securityholders dated within 15
days of the date on which the list is furnished and at such other times as the
Trustee may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Securityholders.


 


Section 2.6                                      Transfer
and Exchange.  (a)  Subject to Section 2.13 hereof, upon
surrender for registration of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.3, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount.  The Company shall not charge a service charge for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges that
may be imposed in connection with the transfer or exchange of the Securities
from the Securityholder requesting such transfer or exchange.


 


At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder’s attorney duly
authorized in writing, at such office or agency.  Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.


 


The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to


 


15

















 


be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Repurchase Notice has been
given and not withdrawn by the Holder thereof in accordance with the terms of
this Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or any Securities for a period of 15 days
before the mailing of a Redemption Notice of Securities to be redeemed.


 


(b)                                 Notwithstanding
any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, (i) transfers of
beneficial interests in a Global Security, in whole or in part, may be effected
only through a book entry system maintained by the Holder of such Global
Security (or its agent) in accordance with Applicable Procedures, (ii)
ownership of a beneficial interest in the Security shall be required to be
reflected in book entry and (iii) transfers of Global Securities or beneficial
interests in Global Securities shall be made only in accordance with
Section 2.13 and this Section 2.6(b).  Transfers of a Global Security shall be limited to transfers of
such Global Security in whole or in part, to the Depositary, to nominees of the
Depositary or to a successor of the Depositary or such successor’s nominee.


 


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


 


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


 


(e)                                  No
Registrar shall be required to make registrations of transfer or exchange of
Securities during any periods designated in the text of the Securities or in
this Indenture as periods during which such registration of transfers and
exchanges need not be made.


 


(f)                                    If
Securities are issued upon the transfer, exchange or replacement of Securities
subject to restrictions on transfer and bearing the legends set forth on the
forms of Security attached hereto as Exhibits A and B setting forth such
restrictions (collectively, the “Legend”), or if a request is made to remove
the Legend on a Security, the Securities so issued shall bear the Legend, or
the Legend shall not be removed, as the case may be, unless there is delivered
to the Company and the Registrar such satisfactory evidence, which shall
include an Opinion of Counsel, as may be reasonably required by the Company and
the Registrar and the Trustee (if not the same Person as the Trustee), that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act of 1933, as amended (“Securities
Act”) or that such Securities are not “restricted” within the meaning of Rule
144 under the Securities Act.  Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
upon receipt of a Company Order, shall authenticate and deliver a Security that
does not bear the Legend.  If the Legend
is removed from the face of a Security and the Security is subsequently held by
the Company or an Affiliate of the Company, the Legend shall be reinstated.


 


16

















 


In the event Rule 144(k) as promulgated under the Securities Act is
amended to shorten the two-year period under Rule 144(k), then, the references
in the Legend to “TWO YEARS”, and in the corresponding transfer restrictions
described above, will be deemed to refer to such shorter period, from and after
receipt by the Trustee of an Officers’ Certificate and an Opinion of Counsel to
that effect.  As soon as practicable
after the Company knows of the effectiveness of any such amendment to shorten
the two-year period under Rule 144(k), unless such changes would otherwise be
prohibited by, or would cause a violation of, the federal securities laws
applicable at the time, the Company will provide to the Trustee an Officers’
Certificate and an Opinion of Counsel as to the effectiveness of such amendment
and the effectiveness of such change to the restrictive legends and transfer
restrictions.


 


Until the Legend on any Restricted Security has been removed in
compliance with this Section 2.6(f), all shares of Common Stock (or other
securities issuable upon conversion as a result of the provisions of this
Indenture) issued upon conversion of such Restricted Security shall bear a
legend substantially in the form of the Legend (the “Common Stock Restrictive
Legend”) and shall be subject to the same restrictions on transfer as such
Restricted Security.  At any time
following the time when the restrictions on transfer set forth in the Common
Stock Restrictive Legend shall have expired in accordance with their terms or
shall have terminated under applicable law, the holder of such Common Stock
may, upon a surrender of the certificate representing such Common Stock to the
Company’s transfer agent in accordance with such agent’s customary procedures
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 or any successor provision,
by an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Common Stock has been made in compliance with Rule 144 or such
successor provision), exchange such certificate and receive a new certificate
representing such Common Stock, in like amount, which shall not bear the Common
Stock Restrictive Legend.


 


Section 2.7                                      Replacement
Securities.  If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to hold each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee,
shall 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 certificate 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 purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay 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 or
other governmental charge that


 


17

















 


may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected 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 the Company, whether or not the 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 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; Determinations of Holders’ Action.  Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those paid
pursuant to Section 2.7, those delivered to it for cancellation and those
described in this Section 2.8 as not outstanding.  A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite principal
amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent, waiver, or other Act hereunder, Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in conclusively relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other Act, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.  The Trustee shall have no
affirmative duty to inquire or investigate as to whether the Company owns any
Securities.  Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation, determinations
pursuant to Articles 6 and 8).


 


If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.


 


If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Repurchase Date, or on
Stated Maturity, money sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Repurchase Date or Stated Maturity, as
the case may be, such Securities shall cease to be outstanding and interest,
including Additional Interest and Additional Amounts, if any, on such
Securities shall cease to accrue; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.


 


If a Security is converted in accordance with Article 9, then from and
after the time of conversion on the date of conversion, such Security shall
cease to be outstanding and interest, including Additional Interest and
Additional Amounts, if any, shall cease to accrue on such Security.


 


18

















 


Section 2.9                                      Temporary
Securities.  Pending the preparation
of definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
typewritten or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.


 


If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay.  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 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 2.10                                Cancellation.  If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless the same are
delivered to the Trustee for cancellation. 
All Securities surrendered for payment, repurchase by the Company,
conversion, redemption or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. 
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. 
The Company may not issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 9.  No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture.  All cancelled Securities
held by the Trustee shall be disposed of by the Trustee in accordance with the
Trustee’s customary procedure.


 


Section 2.11                                Defaulted
Interest.  When any installment of
interest (including Additional Interest and Additional Amounts, if any) becomes
Defaulted Interest, such installment shall forthwith cease to be payable to the
Holders in whose names the Securities were registered on the Interest Payment
Record Date applicable to such installment of interest.  Defaulted Interest (including any interest
on such Defaulted Interest) may be paid by the Company, at its election, as provided in Section
2.11(a) or (b).


 


(a)                                  The
Company may elect to make payment of any Defaulted Interest (including any
interest payable on such Defaulted Interest) to the Holders in whose names the
Securities are registered at the close of business on a special record date for
the payment of such Defaulted Interest (a “Special Record Date”), which shall
be fixed in the following manner.  The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of


 


19

















 


such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Holders entitled to such Defaulted Interest as provided
in this Section 2.11(a).  Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than 15 calendar days and not less than ten
calendar days prior to the date of the proposed payment and not less than ten
calendar days after the receipt by the Trustee of the notice of the proposed
payment.  The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be sent, first-class mail,
postage prepaid, to each Holder at such Holder’s address as it appears in the
registration books of the Registrar, not less than ten calendar days prior to
such Special Record Date.  Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Holders in whose names the Securities are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
Section 2.11(b); or


 


(b)                                 The
Company may make payment of any Defaulted Interest (including any interest on
such Defaulted Interest) in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Section 2.11(b), such manner of payment shall be deemed practicable by the
Trustee.


 


Section 2.12                                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 the Security or the payment of any
Redemption Price or Repurchase Price in respect thereof, and interest
(including Additional Interest and Additional Amounts, if any) thereon, for the
purpose of conversion and for all other purposes whatsoever, except for the
rights of holders of beneficial interests in the Securities as provided in
Section 2.13(a)(iii) whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


Section 2.13                                Global
Securities.  (a)  Notwithstanding any other provisions of this
Indenture or the Securities, (A) transfers of a Global Security, in whole or in
part, shall be made only in accordance with Section 2.6 and
Section 2.13(a)(i), (B) transfers or exchanges of a beneficial interest in
a Global Security for an interest in the same or another Global Security shall
comply with Section 2.6 and Section 2.13(a)(ii) below, (C) transfers of a
beneficial interest in a Global Security for a Certificated Security shall
comply with Section 2.6, Section 2.13(a)(iii) below and
Section 2.13(e)(1) below, and (D) transfers of a Certificated Security
shall comply with Section 2.6 and Sections 2.13(a)(iv) and (v) below.


 


(i)                                     Transfer
of Global Security.  A Global
Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to
any such other Person may be registered; provided that


 


20

















 


this clause (i) shall not prohibit any transfer of a
Certificated Security that is issued in exchange for a Global Security.  No transfer of a Global Security to any
Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person.  Nothing in this Section 2.13(a)(i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Security effected in accordance with the other provisions of this
Section 2.13.


 


(ii)                                  Transfer
of a Beneficial Interest in a Global Security; Exchange of a Beneficial
Interest in a Global Security for a Beneficial Interest in the Same or Another
Global Security.


 


a.                                       A
beneficial interest in a Global Security may not be transferred, nor may it be
exchanged for a beneficial interest in another Global Security, except upon
satisfaction of the requirements set forth below.  Upon receipt by the Trustee of a request to effect such a
transfer or exchange in accordance with Applicable Procedures, together with:


 


(A)                              so
long as the Securities are Restricted Securities, certification in the form set
forth in Exhibit C;


 


(B)                                written
instructions to the Trustee to make, or direct the Registrar to make, in the
case of a transfer of a beneficial interest in a Global Security, an
appropriate adjustment on its books and records with respect to such Global
Securities to reflect such transfer and containing information regarding the
Depositary account to be credited;


 


(C)                                written
instructions to the Trustee to make, or direct the Registrar to make, in the
case of an exchange of a beneficial interest in a Global Security, an
appropriate adjustment on its books and records with respect to such Global
Securities to reflect such exchange and containing information regarding the
Depositary account to be credited; and


 


(D)                               if
the Company or the Trustee so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the restrictions set
forth in the Legend,


 


then the Trustee, (1) shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Registrar, the aggregate principal amount of the Securities
represented by the appropriate Global Security to be decreased by the aggregate
principal amount that the other Global Security is increased and (2) in
accordance with the standing instructions and procedures existing between the
Depositary and the Registrar and Applicable Procedures, shall debit and credit
or cause to be debited or credited, as appropriate, to the accounts of the
persons specified in such instructions a


 


21

















 


beneficial interest in the Global Security or Global Securities, as
appropriate, equal to the amount of the beneficial interests so transferred or
exchanged.


 


b.                                      Other
than transfers to the Company or to an Affiliate of the Company, beneficial
interests in a Global Security that is not a Restricted Security may not be
transferred to a Person who takes delivery thereof in the form a beneficial interest
in a Global Security that is a Restricted Security.


 


(iii)                               Transfer
or Exchange of a Beneficial Interest in a Global Security for a Certificated
Security.  A beneficial interest in
a Global Security may not be exchanged for a Certificated Security except upon
satisfaction of the requirements set forth below and in Section 2.13(e)(1)
below.  Upon receipt by the Trustee of a
transfer of a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form satisfactory to
the Trustee, together with:


 


a.                                       so
long as the Securities are Restricted Securities, certification in the form set
forth in Exhibit C;


 


b.                                      written
instructions to the Trustee to make, or direct the Registrar to make, an
adjustment on its books and records with respect to such Global Security to
reflect a decrease in the aggregate principal amount of the Securities
represented by the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such decrease; and


 


c.                                       if
the Company or the Trustee so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the restrictions set
forth in the Legend,


 


then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Registrar, the aggregate principal amount of the Securities
represented by the Global Security to be decreased by the aggregate principal
amount of the Certificated Security to be issued, shall issue such Certificated
Security and shall debit or cause to be debited to the account of the person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Certificated Security so issued.  In the event that Certificated Securities
are not issued to each such beneficial owner promptly after the Registrar has
received a request from the Holder of a Global Security to issue such
Certificated Securities, the Company expressly acknowledges, with respect to
the right of any Holder to pursue a remedy pursuant to Sections 6.6 and 6.7
hereof, the right of any holder of a beneficial interest in the Securities to
pursue such remedy with respect to the portion of the Global Security that
represents such beneficial holder’s Securities not issued in the form of
Certificated Securities as if such Certificated Securities had been issued.


 


22

















 


(iv)                              Transfer
and Exchange of Certificated Securities. 
When Certificated Securities are presented to the Registrar with a
request:


 


a.                                       to
register the transfer of such Certificated Securities; or


 


b.                                      to
exchange such Certificated Securities for an equal principal amount of
Certificated Securities of other authorized denominations,


 


the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Securities surrendered for transfer or
exchange:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23

















 


(I)                                    so
long as the Securities are Restricted Securities, certification, in the form
set forth in Exhibit C, that such Certificated Security is being transferred to
a QIB in accordance with Rule 144A, or to an institutional accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the
Securities Act; and


 


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


 


(b)                                 Subject
to the succeeding Section (c), every Security shall be subject to the
restrictions on transfer provided in the Legend and herein including the
delivery of an opinion of counsel, if so provided.  Whenever any Restricted Security is presented or surrendered for
transfer or for exchange, such Security must be accompanied by a certificate in
substantially the form set forth in Exhibit C, dated the date of such surrender
and signed by the Holder, as to compliance with such restrictions on
transfer.  The Registrar shall not be
required to accept for such transfer or exchange any Security not so
accompanied by a properly completed certificate.


 


(c)                                  The
restrictions imposed by the Legend upon the transferability of any Security
shall cease and terminate when such Security has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any successor
provision).  Any Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.13
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 or any successor provision,
by an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend.  The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under
the Securities Act.  The Trustee


 


24

















 


shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned opinion of counsel or registration statement.


 


(d)                                 As
used in the preceding two paragraphs of this Section 2.13, the term
“transfer” encompasses any sale, pledge, transfer, loan, hypothecation, or
other disposition of any interest in any Security.


 


(e)                                  The
provisions of this Section 2.13(e) shall apply only to Global Securities:


 


(1)                                  Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered in the
name of any Person other than the Depositary or one or more nominees thereof,
provided that a Global Security may be exchanged for Securities registered in
the names of any Person designated by the Depositary in the event that (i) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Global Security or such Depositary has ceased to be a
“clearing agency” registered under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and a successor Depositary is not appointed by
the Company within 90 days or (ii) an Event of Default has occurred and is
continuing with respect to the Securities. 
Any Global Security exchanged pursuant to clause (i) above shall be so
exchanged in whole and not in part, and any Global Security exchanged pursuant
to clause (ii) above shall be exchanged in whole or from time to time in part
upon and in accordance with the request of any holder of a beneficial interest
in the Securities to receive a Certificated Security in exchange for such
beneficial interest or as otherwise may be directed by the Depositary.  Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided that any
such Security so issued that is registered in the name of a Person other than
the Depositary or a nominee thereof shall not be a Global Security.


 


(2)                                  Securities
issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. 
Any Global Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. 
With regard to any Global Security to be exchanged in part, either such
Global Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. 
Upon any such surrender or


 


25

















 


adjustment, the Trustee shall authenticate and deliver
the Security issuable on such exchange to or upon the order of the Depositary
or an authorized representative thereof.


 


(3)                                  Subject
to the provisions of clause (5) below, the registered Holder may grant proxies
and otherwise authorize any Person, including Agent Members (as defined below)
and Persons that may hold interests through Agent Members, to take any action
which a holder is entitled to take under this Indenture or the Securities.


 


(4)                                  In
the event of the occurrence of any of the events specified in clauses
(1) or (2) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive, fully
registered form, without interest coupons.


 


(5)                                  Neither
any members of, or participants in, the Depositary (collectively, the “Agent
Members”) nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Security
registered in the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the case may be,
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global Security for all
purposes whatsoever.  Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its Agent
Members and any other Person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of the
rights of a holder of any Security.


 


(f)                                    By
its acceptance of any Security bearing the Legend, each Holder acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
agrees that it will transfer such Security only as provided in this
Indenture.  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 beneficial owners of interests in
any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


(g)                                 Neither
the Trustee nor any agent shall have any responsibility for any actions taken
or not taken by the Depositary.


 


Section 2.14                                CUSIP
Numbers.  The Company may issue the
Securities with one or more “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” 


 


26

















 


numbers in notices of
redemption as a convenience to Holders; provided 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 and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.  The
Company will promptly notify the Trustee in writing of any change in the CUSIP
numbers.


 


ARTICLE III


 


REDEMPTION AND REPURCHASE AT THE OPTION OF HOLDERS


 


Section 3.1                                      Company’s
Right to Redeem; Notices to Trustee. 
Prior to December 15, 2008, the Securities will not be redeemable at the
Company’s option.  Beginning on December
15, 2008, the Company, at its option, may redeem the Securities, subject to and
in accordance with the terms and conditions of Section 6 of the
Securities, for cash, as a whole or in part, at a Redemption Price equal to
100% of the principal amount of those Securities to be redeemed (the
“Redemption Price”), plus accrued and unpaid interest (including Additional
Interest and Additional Amounts, if any) thereon up to, but excluding, the
Redemption Date.  If the Redemption Date
is an Interest Payment Date, accrued and unpaid interest (including Additional
Interest and Additional Amounts, if any) shall instead be paid to the Holder in
whose name the Security (or a predecessor Security) is registered at the close
of business on the respective Interest Payment Record Date.  If the Company elects to redeem Securities
pursuant to this Section 3.1, it shall notify the Trustee in writing of
the Redemption Date, the principal amount of Securities to be redeemed and the
Redemption Price.


 


The Company shall give the notice to the Trustee of its intention to
exercise its right to redeem the Securities as provided for in this
Section 3.1 by a Company Order at least ten (10) Business Days prior to
the day the Redemption Notice is to be mailed, unless the Trustee agrees to a
shorter period.


 


Section 3.2                                      Selection
of Securities to Be Redeemed.  If
less than all the Securities are to be redeemed, unless the procedures of the
Depositary provide otherwise, the Trustee shall select the particular
Securities to be redeemed from the outstanding Securities by a method that
complies with the requirements of any exchange on which the Securities are
listed, or, if the Securities are not listed on an exchange, on a pro rata
basis or by lot or in accordance with any other method the Trustee considers
fair and appropriate.  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 to be redeemed shall be in principal amounts of $1,000 or an
integral multiple of $1,000.  Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. 
The Trustee shall promptly notify the Company and the Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.


 


Securities and portions of Securities that are to be redeemed are
convertible by the Holder until the close of business on the second Business
Day prior to the Redemption Date


 


27

















 


unless the Company fails to pay the Redemption Price
on 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 (so far as may be) to be the
portion selected for redemption. 
Securities which have been converted during a selection of Securities to
be redeemed may be treated by the Trustee as outstanding for the purpose of
such selection.


 


For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.


 


Section 3.3                                      Redemption
Notice.  At least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a Redemption
Notice by first-class mail, postage prepaid, to each Holder to be redeemed.


 


The Redemption Notice shall identify the Securities to be redeemed and
shall state:


 


(1)                                  the
intended Redemption Date;


 


(2)                                  the
Redemption Price and interest (including Additional Interest and Additional
Amounts, if any) accrued and unpaid to, but excluding, the Redemption Date;


 


(3)                                  the
Conversion Price, the date on which the right to convert the principal of the
Securities to be redeemed will terminate and the places where such Securities
may be surrendered for conversion;


 


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


 


(5)                                  that
Securities called for redemption may be converted at any time before the close
of business on the second Business Day prior to the Redemption Date;


 


(6)                                  that
Holders who wish to convert their Securities must satisfy the requirements set
forth in Section 9 of the Securities;


 


(7)                                  whether
the Company will deliver cash, Common Stock or a combination of cash and Common
Stock in the event a Holder converts Securities called for redemption;


 


(8)                                  the
date on which the applicable Cash Settlement Averaging Period will commence in
the event a Holder converts Securities called for redemption and the Company
elects to satisfy all or a portion of the Conversion Obligation in cash;


 


28

















 


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


 


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


 


(11)                            that
on the Redemption Date, the Redemption Price and interest (including Additional
Interest and Additional Amounts, if any) accrued and unpaid to, but excluding,
the Redemption Date will become due and payable upon each such Security to be
redeemed;


 


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


 


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


 


At the Company’s request, the Trustee shall give the Redemption Notice
in the Company’s name and at the Company’s expense, provided that the Company
makes such request at least ten Business Days prior to the date by which such
Redemption Notice is to be given to Holders in accordance with this
Section 3.3, unless the Trustee agrees to a shorter period.


 


Section 3.4                                      Effect
of Redemption Notice.  Once
Redemption Notice is given, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the
Redemption Notice except for Securities which are converted in accordance with
the terms of this Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the Redemption
Notice.


 


If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the applicable interest rate.


 


Section 3.5                                      Deposit
of Redemption Price.  Prior to 10:00
a.m., New York City time, on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either
of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption
which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. 
The Paying Agent shall as promptly as practicable return to the Company
any money not required for that purpose because of conversion of Securities
pursuant to Article 9.  If such money is
then held by the Company in trust and is not required for such purpose it shall
be discharged from such trust.


 


Section 3.6                                      Securities
Redeemed in Part.  Upon surrender of
a Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the


 


29

















 


Holder a new Security in
an authorized denomination equal in principal amount to the unredeemed portion
of the Security surrendered.


 


Section 3.7                                      Repurchase
Rights at the Option of Holders.


 


(a)                                  (1)                                  On
December 15, 2008, December 15, 2013 and December 15, 2018 (each, an “Optional
Repurchase Date”), each Holder shall have the right (the “Optional Repurchase
Right”), at the Holder’s option, to require the Company to repurchase, and upon
the exercise of such right the Company shall repurchase, all of such Holder’s
Securities, or any portion of the principal amount thereof that is equal to any
integral multiple of $1,000 (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be outstanding after such repurchase is equal to an integral multiple of
$1,000), at a repurchase price equal to 100% of the principal amount of the
Securities to be repurchased (the “Optional Repurchase Price”), plus interest
(including Additional Interest and Additional Amounts, if any) accrued and
unpaid to, but excluding, the Optional Repurchase Date; provided, however,
that installments of interest (including Additional Interest and Additional
Amounts, if any) on Securities whose Interest Payment Date is on an Optional
Repurchase Date shall be payable to the Holders of such Securities, registered
as such on the relevant Interest Payment Record Date according to their terms
and the provisions of Section 2.1.


 


(2)                                  The
Securities to be repurchased on any Optional Repurchase Date pursuant to
Section 3.7(a)(1) may be paid for, in whole or in part, at the election of
the Company, in cash, shares of Common Stock or in any combination of cash and
shares of Common Stock, subject to the conditions set forth in Sections
3.7(a)(3) and (a)(4). The Company shall designate, in the Optional Repurchase Right
Company Notice delivered pursuant to Section 3.7(c), whether the Company
will repurchase the Securities for cash or shares of Common Stock, or, if a
combination thereof, the percentages of the Optional Repurchase Price of
Securities in respect of which it will pay in cash or shares of Common Stock; provided that the Company shall pay cash
for fractional interests in shares of Common Stock.  For purposes of determining the existence of potential fractional
interests, all Securities subject to repurchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to
be presented).


 


Each Holder whose
Securities are repurchased pursuant to this Section 3.7(a) shall receive
the same percentage of cash or shares of Common Stock in payment of the
Optional Repurchase Price for such Securities, except (i) as provided in
Section 3.7(a)(4) with regard to the payment of cash in lieu of fractional
shares of Common Stock and (ii) in the event that the Company is unable to
repurchase the Securities of a Holder or Holders for shares of Common Stock
because any necessary qualifications or registrations of the shares of Common
Stock under applicable state securities laws cannot be obtained, the Company
may repurchase the Securities of such Holder or Holders for cash.


 


The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
Optional Repurchase Right Company Notice to Holders except pursuant to this
Section 3.7(a)(2) or pursuant to Section 3.7(a)(4) in the event of a
failure to satisfy, prior to the close of business


 


30

















 


on the last Business Day prior to the Repurchase Date,
any condition to the payment of the Optional Repurchase Price, in whole or in
part, in shares of Common Stock.


 


At least three Business Days before each Optional Repurchase Right
Company Notice Date, the Company shall deliver an Officers’ Certificate to the
Trustee specifying:


 


(i)                                     the
manner of payment selected by the Company,


 


(ii)                                  the
information required by Section 3.7(c) in the Optional Repurchase Right
Company Notice,


 


(iii)                               if
the Company elects to pay the Optional Repurchase Price, or a specified
percentage thereof, in shares of Common Stock, that the conditions to such
manner of payment set forth in Section 3.7(a)(4) have been or will be
complied with, and


 


(iv)                              whether
the Company desires the Trustee to give the Optional Repurchase Right Company
Notice required by Section 3.7(c).


 


(3)                                  Repurchase
with Cash.    At the option of the Company, the Optional
Repurchase Price of Securities in respect of which a Repurchase Notice pursuant
to Section 3.7(d) has been given, or a specified percentage thereof, may
be paid by the Company with cash equal to the aggregate Optional Repurchase
Price of such Securities. The Optional Repurchase Price of Securities in
respect of which a Repurchase Notice pursuant to Section 3.7(d) has been
given shall, for all other Optional Repurchase Dates, be paid in cash.


 


(4)                                  Payment
by Issuance of shares of Common Stock.    At the option of
the Company, the Optional Repurchase Price of Securities in respect of which a
Repurchase Notice pursuant to Section 3.7(d) has been given, or a
specified percentage thereof, may be paid by the Company by the issuance of a
number of shares of Common Stock equal to the quotient of:


 


(i)                                     the
amount of cash to which a Holder would have been entitled had the Company
elected to pay the Optional Repurchase Price in cash, minus the amount of the
portion of the Optional Repurchase Price to be paid in cash as provided in
Section 3.7(a)(3), divided by


 


(ii)                                  95%
of the Market Price of one share of Common Stock.


 


The “Market Price” means the arithmetic average of the Volume Weighted
Average Prices of Common Stock for each of the 20 Trading Days ending on the Business Day immediately
preceding the applicable Optional Repurchase Date (if such Business Day is a
Trading Day or, if not, then on the last Trading Day immediately prior thereto)
appropriately adjusted to take into account the occurrence, during the period
commencing on the first Trading Day during such 20 Trading-Day-period and
ending on the applicable Optional Repurchase Date, of any event with respect to
Common Stock that would result in an adjustment of the Conversion Rate as
provided in Section 9.7.


 


31

















 


The Company shall not issue fractional shares of Common Stock in
payment of the Optional Repurchase Price. Instead, the Company shall pay cash
based on the Market Price for all fractional shares.  If a Holder elects to have more than one Security repurchased,
the number of shares of Common Stock shall be based on the aggregate amount of
Securities to be repurchased.


 


With respect to the applicable Optional Repurchase Date, the Company’s
right to exercise its election to repurchase Securities through the issuance of
shares of Common Stock shall be conditioned upon:


 


(i)                                     the
Company’s not having given its Optional Repurchase Right Company Notice of an
election to pay entirely in cash and its giving of timely Optional Repurchase
Right Company Notice of an election to repurchase all or a specified percentage
of the Securities with shares of Common Stock as provided herein;


 


(ii)                                  the
registration of such shares of Common Stock under the Securities Act or the
availability of an exemption from registration under the Securities Act;


 


(iii)                               the
listing of such shares of Common Stock on the principal national securities
exchange on which the shares of Common Stock are listed;


 


(iv)                              any
necessary qualification or registration under applicable state securities laws
or the availability of an exemption from such qualification and registration;
and


 


(v)                                 the
receipt by the Trustee of an Officers’ Certificate and an Opinion of Counsel
each stating that (A) the terms of the issuance of the shares of Common
Stock are in conformity with this Indenture and (B) the shares of Common
Stock to be issued by the Company in payment of the Optional Repurchase Price
in respect of the Securities have been duly authorized and, when issued and
delivered pursuant to the terms of this Indenture in payment of the Optional
Repurchase Price in respect of the Securities, shall be validly issued, fully
paid and non-assessable and, to the best of such counsel’s knowledge, free from
preemptive rights, and, in the case of such Officers’ Certificate, stating that
the conditions above and the condition set forth in the second succeeding
sentence have been satisfied and, in the case of such Opinion of Counsel,
stating that the conditions in clauses (i) through (iv) above have
been satisfied.


 


Such Officers’ Certificate shall also set forth the
number of shares of Common Stock to be issued for each $1,000 principal amount
and the Volume Weighted Average Prices of Common Stock on each Trading Day
during the period commencing on the first Trading Day of the 20-


 


32

















 


Trading-Day period during which the Market Price is
calculated and ending on the Business Day immediately preceding the applicable
Optional Repurchase Date. The Company may pay the Optional Repurchase Price (or
any portion thereof) in shares of Common Stock only if the information
necessary to calculate the Market Price is published in a daily newspaper of
national circulation. If the foregoing conditions are not satisfied with
respect to a Holder or Holders prior to the close of business on the Optional
Repurchase Date, and the Company has elected to repurchase the Securities
pursuant to this Section 3.7(a) through the issuance of shares of Common
Stock, the Company shall pay the entire Optional Repurchase Price of the
Securities of such Holder or Holders in cash.


 


(5)                                  All
shares of Common Stock delivered upon repurchase of the Securities shall be
newly issued shares or treasury shares, shall be duly authorized, validly
issued, fully paid and nonassessable, and shall be free from preemptive rights
and free of any lien or adverse claim.


 


(6)                                  The
Company shall deposit cash (in respect of a cash repurchase under this
Section 3.7(a) or for fractional interests, as applicable) or shares of
Common Stock, or a combination thereof, as applicable, at the time and in the
manner as provided in Section 3.9, sufficient to pay the aggregate
Optional Repurchase Price of all Securities to be repurchased pursuant to this
Section 3.7(a). If the Company elects to pay any portion of the Optional
Repurchase Price in shares of Common Stock, as soon as practicable after the Optional
Repurchase Date, the Company shall deliver to each Holder entitled to receive
shares of Common Stock through the Paying Agent, a certificate for the number
of full shares of Common Stock issuable in payment of the Optional Repurchase
Price and cash in lieu of any fractional interests. The person in whose name
the certificate for the shares of Common Stock is registered shall be treated
as a holder of record of Common Stock on the Business Day following the
Optional Repurchase Date. Subject to Section 3.7(a)(4), no payment or
adjustment shall be made for dividends on the shares of Common Stock the Record
Date for which occurred on or prior to the Optional Repurchase Date.


 


(7)                                  The
issue of stock certificates on repurchase of Securities shall be made without
charge to the Holder of a repurchased Security for any documentary, stamp or
similar issue or transfer taxes in respect of the issue thereof, and the
Company shall pay any and all documentary, stamp or similar issue or transfer
taxes that may be payable in respect of the issue or delivery of shares of
Common Stock if a Holder is paid in shares of Common Stock pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issue or delivery of shares
of Common Stock or the portion, if any, of the Securities which are not so
converted in a name other than that in which the Securities so converted were
registered, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of such tax or
has established to the satisfaction of the Company that such tax has been paid.


 


(b)                                 (1)  If a Change of Control occurs (subject to
certain exceptions set forth below), each Holder shall have the right (the
“Change of Control Repurchase Right” and, together with the Optional Repurchase
Right, each a “Repurchase Right”), at the Holder’s option, to require the
Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder’s Securities not theretofore called for
redemption, or any


 


33

















 


portion of the principal
amount thereof that is equal to any integral multiple of $1,000 (provided that
no single Security may be repurchased in part unless the portion of the
principal amount of such Security to be outstanding after such repurchase is
equal to an integral multiple of $1,000) at a repurchase price equal to 100% of
the principal amount of the Securities to be repurchased (the “Change of
Control Repurchase Price” and, together with the Optional Repurchase Price,
each a “Repurchase Price”), plus interest (including Additional Interest and
Additional Amounts, if any) accrued and unpaid to, but excluding, the date that
is no later than 25 Business Days after the date of a notice of Change of
Control delivered by the Company pursuant to Section 3.7(c) (the “Change of
Control Repurchase Date” and, together with the Optional Repurchase Date, each a
“Repurchase Date”), subject to satisfaction by or on behalf of the Holder of
the requirements set forth in Section 3.7(d).


 


A “Change of Control” will be deemed to have occurred at such time
after the Securities are originally issued when any of the following events
shall occur:


 


(i)                                     the
acquisition by any Person, including any syndicate or group deemed to be a
“person” under Section 13(d)(3) of the Exchange Act, of beneficial
ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of purchases, mergers or other acquisition
transactions of shares of the Capital Stock of the Company entitling that
Person to exercise 50% or more of the total voting power of all shares of the
Capital Stock of the Company entitled to vote generally in elections of
directors, other than any acquisition by the Company, any of its subsidiaries
or any of its employee benefit plans (except that such Person shall be deemed
to have beneficial ownership of all Securities that such Person has the right
to acquire, whether that right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition); or


 


(ii)                                  the
first day on which a majority of the members of the board of directors of the
Company are not Continuing Directors; or


 


(iii)                               the
Company consolidates or merges with or into any other Person, any merger of
another Person into the Company, or any conveyance, transfer, sale, lease or
other disposition of all or substantially all of the Company’s properties and
assets to another Person, other than: 
(A) any transaction: 
(1) that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of the Company’s Capital Stock;
and (2) pursuant to which holders of the Company’s Capital Stock
immediately prior to the transaction have the right to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of Capital
Stock entitled to vote generally in elections of directors of the continuing or
surviving Person immediately after giving effect to such issuance; and (B) any
merger solely for the purpose of changing the Company’s jurisdiction of
incorporation


 


34

















 


and resulting in a reclassification, conversion or
exchange of outstanding shares of Common Stock, if at all, solely into shares
of common stock of the surviving entity.


 


A “Continuing Director” shall mean, as of any date of determination,
any member of the Board of Directors who:


 


(i)                                     was
a member of the Board of Directors of the Company on the date hereof; or


 


(ii)                                  was
nominated for election or elected to the Board of Directors with the approval
of a majority of the Continuing Directors who were members of the Board of
Directors at the time of the new director’s nomination or election.


 


(2)                                  Notwithstanding
the provisions of Section 3.7(b)(1), the Company shall not be required to
purchase the Securities of the Holders upon a Change of Control pursuant to
this Section 3.7(b) (and a Change of Control shall be deemed not to have
occurred) if either:


 


(i)                                     the
Sale Price per share of Common Stock for any five Trading Days within (A) the
period of 10 consecutive Trading Days ending immediately after the later of the
Change of Control or the public announcement of the Change of Control, in the
case of a Change of Control under clause (i) of the definition of “Change of
Control” above, or (B) the period of 10 consecutive Trading Days ending
immediately before the Change of Control, in the case of a Change of Control
under clause (ii) or (iii) of the definition of “Change of Control” above,
equals or exceeds 105% of the Conversion Price of the Securities in effect on
each of those five Trading Days; or


 


(ii)                                  at
least 90% of the consideration in the transaction or transactions constituting
a Change of Control consists of shares of common stock, depositary receipts or
other certificates representing common equity interests traded or to be traded
immediately following a Change of Control on a national securities exchange or
the Nasdaq National  Market, and, as a
result of the transaction or transactions, the Security either become
convertible solely into that common stock, depositary receipts or other
certificates representing common equity interests (and any rights attached
thereto).


 


For the purposes of this Section 3.7(b), (x) whether a Person is a
“beneficial owner” shall be determined in accordance with Rule 13d-3 and Rule
13d-5 under the Exchange Act and (y) the term “Person” includes any syndicate
or group that would be deemed to be a “person” under Section 13(d)(3) of
the Exchange Act.


 


35

















 


(c)                                  In
the case of any Optional Repurchase Right, no later than 25 Business Days prior
to an Optional Repurchase Date (the “Optional Repurchase Right Company Notice
Date”), the Company shall mail a written notice, in the manner provided in
Section 11.2, of the Optional Repurchase Right (the “Optional Repurchase Right
Company Notice”) by first class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law).  In the case of any Change of Control Repurchase Right, no later
than 20 Business Days after the occurrence of a Change of Control, the Company
shall mail a written notice of the Change of Control (the “Change of Control
Company Notice” and, together with the Optional Repurchase Right Company
Notice, each a “Company Notice”) by first class mail to the Trustee and to each
Holder (and to beneficial owners as required by applicable law) in the manner
provided in Section 11.2.  Each Company
Notice of a Repurchase Right shall state:


 


(1)                                  the
applicable Repurchase Date;


 


(2)                                  the
date by which the Repurchase Notice pursuant to this Section 3.7 must be
delivered to the Paying Agent in order for a Holder to exercise the Repurchase
Rights;


 


(3)                                  the
Repurchase Price and accrued and unpaid interest (including Additional Interest
and Additional Amounts, if any) per $1,000 principal amount of Securities to be
repurchased;


 


(4)                                  a
description of the procedure which a Holder must follow to exercise its
Repurchase Right, and the places or places where such Securities are to be
surrendered for payment of the Repurchase Price and accrued and unpaid interest
(including Additional Interest and Additional Amounts, if any);


 


(5)                                  in
the case of the Optional Repurchase Right Company Notice,


 


(i)                                     whether
the Company elects to pay the Optional Repurchase Price in cash, shares of
Common Stock or a combination thereof, specifying the percentages of each
(except any cash amount to be paid in lieu of fractional shares);


 


(ii)                                  if
the Company elects to pay any portion of the Optional Repurchase Price in
shares of Common Stock,


 


a.                                       the
method of calculating the number of shares of Common Stock; and


 


b.                                      the
date on which the applicable 20-Trading-Day period ending on the Business Day
immediately preceding the Optional Repurchase Date will commerce;


 


(6)                                  that
on the applicable Repurchase Date the Repurchase Price and accrued and unpaid
interest (including Additional Interest and Additional Amounts, if any) will
become due any payable in cash (or, in the case of any Optional Repurchase
Right, the Company’s right to elect to pay in


 


36

















 


cash, shares of Common Stock or a combination thereof)
upon each such Security designated by the Holder to be repurchased, and that
interest thereon shall cease to accrue on and after said date;


 


(7)                                  the
Conversion Rate in effect, the date on which the right to convert the principal
amount of the Securities to be repurchased will terminate and the place where
such Securities may be surrendered for conversion;


 


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


 


(9)                                  in
the case of the Change of Control Company Notice, briefly, the events causing a
Change of Control and the date of such Change of Control;


 


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


 


(11)                            that
the Repurchase Price for any Security as to which a Repurchase Notice has been
duly given and not withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such Security as described in
clause (4) above;


 


(12)                            that
the Securities with respect to which a Repurchase Notice has been given by the
Holder may be converted only if the Holder withdraws the Repurchase Notice in
accordance with the terms of the Indenture;


 


(13)                            the
procedures for withdrawing a Repurchase Notice;


 


(14)                            that,
unless the Company defaults in making payment of such Repurchase Price and interest
(including Additional Interest and Additional Amounts, if any) on Securities
surrendered for repurchase by the Company will cease to accrue on and after the
Change of Control Purchase Date; and


 


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


 


At the Company’s request, the Trustee shall give the Company Notice in
the Company’s name and at the Company’s expense, provided that the Company
makes such request at least ten Business Days prior to the date by which such
Company Notice is to be given to Holders in accordance with this
Section 3.7(c), unless the Trustee agrees to a shorter period.


 


Without otherwise limiting the Company’s obligations pursuant to this
Section 3.7(c) in any way, the Company shall also issue a press release through
Dow Jones & Company, Inc., Bloomberg Business News or a similar newswire
service containing the relevant information and otherwise make this information
available on the Company’s web site or through another public medium as the
Company may use at that time.


 


No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder’s right to exercise a Repurchase Right or affect
the validity of the proceedings for the repurchase of Securities.


 


37

















 


If any of the foregoing provisions or other provisions of this
Article 3 are inconsistent with applicable law, such law shall govern.


 


(d)                                 A
Holder may exercise its Optional Repurchase Right or its Change of Control
Repurchase Right upon delivery of a written notice of repurchase (a “Repurchase
Notice”) to be received by the Paying Agent at any time on or prior to the
close of business on the Repurchase Date (unless the Company shall specify a
later date), specifying:


 


(1)                                  if
Certificated Securities have been issued, the certificate numbers of the
Securities which the Holder will deliver to be repurchased or, if Certificated
Securities have not been issued, the appropriate Depositary procedures;


 


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


 


(3)                                  that
such Security shall be repurchased pursuant to the terms and conditions
specified in Section 7 of the Securities and in this Indenture; and


 


(4)                                  in
the case of any Optional Repurchase Right, in the event the Company elects,
pursuant to Section 3.7(c) to pay the Optional Repurchase Price, in whole or in
part, in shares of Common Stock but such portion of the Optional Repurchase
Price shall ultimately be paid to such Holder entirely in cash because any of
the conditions to payment of the Optional Repurchase Price in shares of Common
Stock is not satisfied prior to the close of business on the relevant Optional
Repurchase Date, as set forth in Section 3.7(c), whether such Holder elects (i)
to withdraw such Repurchase Notice as to some or all of the Securities to which
such Repurchase Notice relates (stating the expected principal amount and
certificate numbers, if any, of the Securities as to which such withdrawal
shall relate), or (ii) to receive cash in respect of the entire Optional
Repurchase Price for all Securities (or portions thereof) to which such
Repurchase Notice relates.


 


In the case of clause (4) above, if a Holder, in such
Holder’s Repurchase Notice and in any written notice of withdrawal delivered by
such Holder pursuant to the terms of Section 3.8, fails to indicate such
Holder’s choice with respect to the election set forth in Section 3.7(d)(4),
such Holder shall be deemed to have elected to receive cash in respect of the
entire Optional Repurchase Price for all Securities subject to such Repurchase
Notice in the circumstances set forth in this Section 3.7(d)(4).


 


The receipt of such Security (together with all necessary endorsements)
by the Paying Agent with the Repurchase Notice at the offices of the Paying
Agent shall be a condition to the receipt by the Holder of the Repurchase Price
therefor; provided, however, that such Repurchase Price shall be so paid
pursuant to this Section 3.7 and Section 3.8 only if the Security


 


38

















 


so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Repurchase Notice.


 


The Company shall repurchase from the Holder thereof, pursuant to this
Section 3.7 and Section 3.8, a portion of a Security if the principal
amount of such portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the repurchase of all of a Security also apply
to the repurchase of such portion of such Security.


 


Any repurchase by the Company contemplated pursuant to the provisions
of this Section 3.7 and Section 3.8 shall be consummated by the
delivery of the consideration to be received by the Holder.


 


Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Repurchase Notice contemplated by this
Section 3.7(d) shall have the right to withdraw such Repurchase Notice at
any time prior to the close of business on the Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with
Section 3.8.


 


The Paying Agent shall promptly notify the Company of the receipt by it
of any Repurchase Notice or written withdrawal thereof.


 


Section 3.8                                      Effect
of Repurchase Notice; Withdrawal. 
Upon receipt by the Paying Agent of the Repurchase Notice specified in
Section 3.7(d), the Holder of the Security in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Repurchase Price with respect to such Security.  Such Repurchase Price shall be paid to such
Holder, subject to the receipt of funds by the Paying Agent, promptly following
the later of (x) the Repurchase Date with respect to such Security (provided
the conditions in Section 3.7(d) 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 3.7(d). 
Securities in respect of which a Repurchase Notice has been given by the
Holder thereof may not be converted pursuant to Article 9 hereof on or after
the date of the delivery of such Repurchase Notice unless such Repurchase
Notice has first been validly withdrawn as specified in the following two
paragraphs.


 


A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Repurchase Notice, at any time prior to the close of business on the Repurchase
Date, specifying:


 


(1)                                  if
Certificated Securities have been issued, the certificate number, if any, of
the Security in respect of which such notice of withdrawal is being submitted
or, if Certificated Securities have not been issued, such information as may be
required by the appropriate Depositary procedures,


 


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


 


39

















 


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


 


A written notice of withdrawal of a Repurchase Notice may be in the
form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the terms
Section 3.7(d)(4) or (ii) a conditional withdrawal containing the information
set forth in Section 3.7(d)(4) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.


 


The Paying Agent will promptly return to the respective Holders thereof
any Securities with respect to which a Repurchase Notice has been withdrawn in
compliance with this Indenture, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.


 


Section 3.9                                      Deposit
of Repurchase Price.  Prior to 10:00
a.m., New York City time, on the Business Day following the Repurchase Date,
the Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in
Section 2.4) an amount of cash (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted hereunder,
sufficient to pay the aggregate Repurchase Price of all the Securities or
portions thereof which are to be repurchased as of the Repurchase Date.


 


Section 3.10                                Securities
Repurchased in Part.  Any
Certificated Security which is to be repurchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder,
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered which is not repurchased.


 


Section 3.11                                Covenant
to Comply With Securities Laws Upon Repurchase of Securities.  When complying with the provisions of
Section 3.7 hereof (provided that such offer or repurchase 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 repurchase), and subject to any exemptions available under
applicable law, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or
any successor provision) under the Exchange Act, (ii) file the related Schedule
TO (or any successor schedule, form or report) under the Exchange Act, and
(iii) otherwise comply with all Federal and state securities laws so as to
permit the rights and obligations under Section 3.7 to be exercised in the time
and in the manner specified in Section 3.7.


 


Section 3.12                                Repayment
to the Company.  The Trustee and the
Paying Agent shall return to the Company any cash that remains unclaimed as
provided in Section 11 of the


 


40

















 


Securities, together with
interest or dividends, if any, thereon, held by them for the payment of the
Repurchase Price; provided, however, that to the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.9 exceeds
the aggregate Repurchase Price of the Securities or portions thereof which the
Company is obligated to repurchase as of the Repurchase Date, then, unless
otherwise agreed in writing with the Company, promptly after the Business Day
following the Repurchase Date, the Trustee shall return any such excess to the
Company together with interest thereon (subject to the provisions of Section 7.1(e)).


 


ARTICLE IV


 


COVENANTS


 


Section 4.1                                      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 or pursuant to this Indenture.  Any amounts of cash to be given to the
Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by
10:00 a.m., New York City time, by the Company.  Principal amount, any accrued interest (including Additional
Interest and Additional Amounts, if any), the Redemption Price and the
Repurchase Price, as the case may be, shall be considered paid on the
applicable date due if on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, cash (or, if applicable, shares of Common Stock
or a combination of cash and Common Stock) sufficient to pay any such amounts
then due.


 


Section 4.2                                      SEC
and Other Reports.  The Company
shall deliver to the Trustee, within 15 days after it files such annual and
quarterly reports, information, documents and other reports with the SEC,
copies of its annual report and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act.  In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it
shall continue to provide the Trustee with reports containing substantially the
same information as would have been required to be filed with the SEC had the
Company continued to have been subject to such reporting requirements.  In such event, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements.  The Company also shall comply with the other
provisions of TIA Section 314(a).  Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including, without limitation, the existence of
any Default or Event of Default or the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely conclusively
on Officers’ Certificates).


 


Section 4.3                                      Compliance
Certificate.  The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on April 25, 2004) an Officers’
Certificate, stating whether or not to the knowledge of the signers thereof,
the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the Company
shall be in default, specifying all


 


41

















 


such defaults and the
nature and status thereof of which they may have knowledge and the steps, if
any, the Company intends to take to remedy such default.


 


Section 4.4                                      Further
Instruments and Acts.  Upon request
of the Trustee, the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.


 


Section 4.5                                      Maintenance
of Office or Agency.  The Company
will maintain in the Borough of Manhattan, the City of New York, 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, repurchase, redemption or
conversion.  The office of The Bank of
New York, 101 Barclay Street, Floor 8W, New York, New York 10286
(Attention:  Corporate Trust
Administration), shall initially be such office or agency for all of the
aforesaid purposes.  The Company shall
give prompt written notice to the Trustee of the location, and of any change in
the location, of any such office or agency (other than a change in the location
of the office of the Trustee).


 


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


 


Section 4.6                                      Delivery
of Certain Information.  At any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act,
upon the request of a Holder or any beneficial owner of Securities or holder or
beneficial owner 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 any beneficial owner of Securities or
holder or beneficial owner of shares of Common Stock, or to a prospective
purchaser of any such security designated by any such holder, as the case may
be, to the extent required to permit compliance by such Holder or holder with
Rule 144A 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.  Whether a Person is a beneficial owner shall be determined by the
Company to the Company’s reasonable satisfaction.


 


Section 4.7                                      Statement
by Officers as to Default.  The
Company shall deliver to the Trustee, as soon as possible and in any event
within five Business Days after the Company becomes aware of the occurrence of
any Event of Default, an Officers’ Certificate setting forth the details of
such Event of Default and the action which the Company proposes to take with
respect thereto.


 


Section 4.8                                      Additional
Amounts Notice.  In the event that
the Company is required to pay Holders Additional Interest under Section 9.6
hereof or Additional Amounts pursuant to the Registration Rights Agreement, the
Company will provide written notice (“Additional Amounts Notice”) to the
Trustee of its obligation to pay Additional Interest or Additional Amounts, as
the case may be, no later than fifteen days prior to the proposed payment date
for the Additional Interest or the Additional Amounts, as the case may be,
unless the Trustee


 


42

















 


agrees to a shorter
period, and the Additional Amounts Notice shall set forth the amount of
Additional Interest or Additional Amounts, as the case may be, to be paid by
the Company on such payment date.  The
Trustee shall not at any time be under any duty or responsibility to any Holder
to determine the Additional Interest or the Additional Amounts, as the case may
be, or with respect to the nature, extent, or calculation of the amount of
Additional Interest or Additional Amounts, as the case may be, owed, or with
respect to the method employed in such calculation of the Additional Interest
or the Additional Amounts, as the case may be.


 


ARTICLE V


 


SUCCESSOR CORPORATION


 


Section 5.1                                      When
Company May Merge or Transfer Assets. 
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer, sell, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, unless:


 


(a)                                  either
(1) the Company shall be the continuing corporation or (2) the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, transfer or lease all or
substantially all of the properties and assets of the Company substantially as
an entirety (i) shall be organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (ii) 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;


 


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


 


(c)                                  the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article 5 and that all conditions precedent set forth in this Indenture
relating to such transaction have been satisfied.


 


For purposes of the foregoing, the transfer (by lease, assignment
(excluding the grant of a security interest but including any foreclosure
thereon), sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.


 


The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all obligations and covenants


 


43

















 


under this Indenture and the Securities.  Subject to Section 8.6, the Company,
the Trustee and the successor Person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor Person and such
discharge and release of the Company.


 


ARTICLE VI


 


DEFAULTS AND REMEDIES


 


Section 6.1                                      Events
of Default.  So long as any
Securities are outstanding, each of the following shall be an “Event of
Default”:


 


(1)                                  the
Company defaults in the payment of the principal amount on any Security when
the same becomes due and payable at its Stated Maturity;


 


(2)                                  (i)
the Company defaults in its obligation to repurchase any Security, or any
portion thereof, upon the exercise by the Holder of such Holder’s right to
require the Company to repurchase such Securities pursuant to and in accordance
with Section 3.7 hereof; or (ii) the Company defaults in its obligation to
redeem any Security, or any portion thereof, called for redemption by the Company
pursuant to and in accordance with Section 3.1 hereof;


 


(3)                                  the
Company defaults in its obligation to pay the Cash Amount upon conversion of
the Securities pursuant to and in accordance with Sections 9.3 and 9.4 hereof;


 


(4)                                  the
Company defaults in the payment of any accrued and unpaid interest (including
Additional Interest and Additional Amounts, if any) on any Security, in each
case when due and payable, and continuance of such default for a period of 30
days;


 


(5)                                  the
Company fails to comply with any of its terms, covenants or agreements in the
Securities or 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)                                  a
default under any indebtedness for money borrowed by the Company or any
Subsidiary in an aggregate outstanding principal amount in excess of $10.0
million, for a period of 30 days after written notice of default is given
to the Company by the Trustee or to the Company and the Trustee by Holders of
not less than 25% in aggregate principal amount of the Securities then
outstanding, which default (A) is caused by the failure to pay principal or
interest when due on such indebtedness by the end of the applicable grace period,
if any, unless such indebtedness is discharged or (B) results in the
acceleration of such indebtedness, unless such acceleration is waived, cured,
rescinded or annulled or unless such indebtedness is discharged;


 


(7)                                  the
entry by a court having jurisdiction of (i) a decree or order for relief in
respect of the Company or any of its Significant Subsidiaries, in an
involuntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company or any of its Significant Subsidiaries, as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of its
Significant Subsidiaries, under any applicable law, or appointing a custodian,
receiver, liquidator, assignee, trustee, 


 


44

















 


sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or


 


(8)                                  the
commencement by the Company or any of its Significant Subsidiaries, of a
voluntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or any of
its Significant Subsidiaries the entry of a decree or order for relief in
respect of the Company or any of its Significant Subsidiaries in an involuntary
case or proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company, or the filing by the Company or any of
its Significant Subsidiaries, of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the
Company to the filing of such petition or to the appointment of or the taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or the making by the Company or any of its Significant
Subsidiaries, of an assignment for the benefit of creditors, or the admission
by the Company or any of its Significant Subsidiaries, in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any of its Significant Subsidiaries,
expressly in furtherance of any such action.


 


A Default under clause (5) 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 at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (5) above after
actual receipt of such notice. Any such notice must specify the Default,
require that it be remedied and state that such notice is a “Notice of
Default.”  For purposes of clauses (7)
and (8) above, the term “Significant Subsidiary” shall also include any group
of two or more Subsidiaries of the Company that, taken as a whole, would
constitute a Significant Subsidiary.


 


Section 6.2                                      Acceleration.  If an Event of Default (other than an Event
of Default specified in Section 6.1(7) or (8) with respect to the Company)
occurs and is continuing (the Event of Default not having been cured or waived
as provided in this Article 6), the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding by notice to the Company, may declare the principal amount
plus accrued and unpaid interest (including Additional Interest and Additional
Amounts, if any) on all the Securities to be immediately due and payable.  Upon such a declaration, such accelerated
amount shall be due and payable immediately. 
If an Event of Default specified in Section 6.1(7) or (8) occurs
(with respect to the Company) and is continuing, the principal amount plus
accrued and unpaid interest (including Additional Interest and Additional
Amounts, if any) on all the Securities shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholders.  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing


 


45

















 


Events of Default have
been cured or waived (except an Event of Default resulting from nonpayment of
the principal amount plus accrued and unpaid interest (including Additional
Interest and Additional Amounts, if any) that have become due solely as a
result of acceleration) and if all amounts due to the Trustee under
Section 7.7 have been paid.  No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.


 


Section 6.3                                      Other
Remedies.  If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of the principal amount plus accrued and unpaid interest
(including Additional Interest and Additional Amounts, if any) 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 the Trustee does not
possess any of the Securities or does not produce any of the Securities 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.


 


Section 6.4                                      Waiver
of Past Defaults.  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except (i)
an Event of Default described in Section 6.1(1), 6.1(2), 6.1(3) or 6.1(4),
(ii) a Default in respect of a provision that under Section 8.2 cannot be
amended without the consent of each Securityholder affected or (iii) a
Default which constitutes a failure to convert any Security in accordance with
the terms of Article 9.  When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.  This Section 6.4 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.


 


Section 6.5                                      Control
by Majority.  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it.  This Section 6.5 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 6.6                                      Limitation on Suits.  A Securityholder may not pursue any remedy
with respect to this Indenture or the Securities unless:


 


(1)                                  the
Holder gives to the Trustee written notice stating that an Event of Default is
continuing;


 


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


 


(3)                                  such
Holder or Holders offer to the Trustee security or indemnity satisfactory to
the Trustee against any loss, liability or expense in connection with pursuing
such remedy;


 


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


 


(5)                                  the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding do not give the Trustee a direction inconsistent with the
request during such 60-day period.


 


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


 


Section 6.7                                      Rights
of Holders to Receive Payment. 
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the principal amount, Redemption Price, Repurchase
Price or interest (including Additional Interest and Additional Amounts, if
any) in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, any Redemption Date or any
Repurchase Date, and to convert the Securities in accordance with Article 9, or
to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.


 


Section 6.8                                      Collection
Suit by Trustee.  If an Event of
Default described in Section 6.1(1), (2), (3) or (4) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount owing with respect to
the Securities and the amounts payable to the Trustee under Section 7.7.


 


Section 6.9                                      Trustee
May File Proofs of Claim.  In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal amount, Redemption Price,
Repurchase Price, the Cash Amount or interest (including Additional Interest
and Additional Amounts, if any) in respect of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of any such amount) shall be entitled and empowered, by
intervention in such proceeding or otherwise,


 


(a)                                  to
file and prove a claim for the whole amount of the principal amount, Redemption
Price, Repurchase Price, the Cash Amount or interest (including Additional
Interest and Additional Amounts, if any) and to file such other papers or
documents as may be necessary


 


47

















 


or advisable in order to
have the claims of the Trustee (including any claim for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel or
any other amounts due the Trustee under Section 7.7) and of the Holders
allowed in such judicial proceeding, and


 


(b)                                 to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official 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 the Trustee any amount due it for the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.


 


Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 6.10                                Priorities.  Subject to the provisions of Article 10, if
the Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:


 


FIRST: to the Trustee for amounts due under Section 7.7;


 


SECOND: to Securityholders for amounts due and unpaid on the Securities
for the principal amount, Redemption Price, Repurchase Price, the Cash Amount
or interest (including Additional Interest and Additional Amounts, if any), 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
Securityholders pursuant to this Section 6.10.  At least 15 days before such record date, the Trustee shall mail
to each Securityholder and the Company a notice that states the record date,
the payment date and the amount to be paid.


 


Section 6.11                                Undertaking
for Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate principal amount of the Securities at the time
outstanding.  This Section 6.11
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.


 


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Section 6.12                                Waiver
of Stay, Extension or Usury Laws. 
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the principal
amount, Redemption Price, Repurchase Price or the Cash Amount in respect of
Securities, or any interest (including Additional Interest and Additional
Amounts, if any) on such amounts, as contemplated herein, or which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


Section 6.13                                Not
Responsible for Recitals or Issuance of Securities.  The recitals contained herein and in the
Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness.  The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities.  The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.


 


ARTICLE VII


 


TRUSTEE


 


Section 7.1                                      Duties
of Trustee.  If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


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


 


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


 


(2)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture, but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this Indenture,
but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein.  This
Section 7.1(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.


 


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(b)                                 Neither
the Trustee nor any of its officers, directors, employees or agents shall be
liable for any action taken or omitted under this Indenture or in connection
herewith except to the extent caused by the Trustee’s negligence or willful
misconduct as determined by a court of competent jurisdiction no longer subject
to appeal or review.  The Trustee may
not be relieved from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:


 


(1)                                  this
subparagraph (b) does not limit the effect of subparagraph (a)
of  this Section 7.1;


 


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


 


(3)                                  the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 6.5.


 


Subparagraphs (b)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.


 


(c)                                  Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (e) of this Section 7.1.


 


(d)                                 The
Trustee may refuse to perform any duty or exercise any right or power or extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or expense
associated therewith.


 


(e)                                  Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. 
The Trustee (acting in any capacity hereunder) shall be under no
liability for interest on any money received by it hereunder unless otherwise
agreed in writing with the Company.


 


Section 7.2                                      Rights
of Trustee.  Subject to its duties
and responsibilities under Section 7.1 and the TIA:


 


(a)                                  the
Trustee may conclusively rely and shall be completely protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness 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)                                 whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, obtain and
conclusively rely upon an Officers’ Certificate;


 


50

















 


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


 


(d)                                 the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it believes to be authorized or within its
rights or powers conferred under this Indenture;


 


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


 


(f)                                    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
Holders, pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby;


 


(g)                                 any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;


 


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


 


(i)                                     the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has received actual written notice
specifying the nature of such Default or Event of Default;


 


(j)                                     the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder;


 


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


 


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(l)                                     anything
in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action taken.


 


Section 7.3                                      Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee.  Any Paying Agent, Registrar, Conversion Agent or co-registrar may
do the same with like rights.  However,
the Trustee must comply with Sections 7.10 and 7.11.


 


Section 7.4                                      Trustee’s
Disclaimer.  The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Securities,
it shall not be accountable for the Company’s performance hereunder, the
Company’s representations and warranties or its use or application of the
proceeds from the Securities, it shall not be responsible for any statement in
the registration statement for the Securities under the Securities Act or in
any offering document for the Securities, the Indenture or the Securities
(other than its certificate of authentication), or the determination as to
which beneficial owners are entitled to receive any notices hereunder.


 


Section 7.5                                      Notice
of Defaults.  If a Default occurs
and if it is actually known to a Responsible Officer of the Trustee, the
Trustee shall give to each Securityholder notice of the Default within 90 days
after it occurs or, if later, within 15 days after it is known to the Trustee,
unless such Default shall have been cured or waived before the giving of such
notice.  Notwithstanding the preceding
sentence, in the case of a Default described in Section 6.1(1), (2) (3) or
(4), the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interest of the Securityholders. 
The preceding sentence shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded
from this Indenture, as permitted by the TIA. 
The Trustee shall not be deemed to have knowledge of a Default unless a
Responsible Officer of the Trustee has received written notice of such Default,
which notice specifically references this Indenture and the Securities.


 


Section 7.6                                      Reports
by Trustee to Holders.  The Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.  Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that complies with
TIA Section 313(a), if required by such Section 313(a).  The Trustee also shall comply with TIA
Section 313(b).


 


A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC (but only if this Indenture is then qualified under
the TIA) and each securities exchange, if any, on which the Securities are
listed. The Company agrees to notify the Trustee in writing promptly whenever
the Securities become listed on any securities exchange and of any delisting
thereof.


 


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Section 7.7                                      Compensation
and Indemnity.  The Company agrees:


 


(a)                                  to
pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for all services rendered by
it hereunder (which compensation shall not be limited (to the extent permitted
by law) by any provision of law in regard to the compensation of a trustee of
an express trust);


 


(b)                                 except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses and disbursements incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense or disbursement as may be attributable to its
negligence or bad faith; and


 


(c)                                  to
indemnify the Trustee or any predecessor Trustee and their respective officers,
directors, employees and agents for, and to hold them harmless against, any
loss, damage, claim, liability, cost or expense (including attorney’s fees and
expenses, and taxes (other than taxes based upon, measured by or determined by
the income of the Trustee and any and all franchise taxes of the Trustee))
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust or performance
hereunder, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person), liability in connection with the exercise or performance of any of its
powers or duties hereunder or in connection with enforcing the provisions of
this Section.


 


To secure the Company’s payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay the
principal amount, Redemption Price, Repurchase Price, the Cash Amount or
interest (including Additional Interest and Additional Amounts, if any), as the
case may be, on particular Securities.


 


The Company’s payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture or the earlier resignation or
removal of the Trustee.  When the
Trustee incurs expenses after the occurrence of a Default specified in
Section 6.1(6) or (7), the expenses including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any applicable bankruptcy law.


 


Section 7.8                                      Replacement
of Trustee.  The Trustee may resign
by so notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.8.  The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may remove the Trustee by so notifying the Trustee and the Company.
The Company shall remove the Trustee if:


 


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


 


(2)                                  the
Trustee is adjudged bankrupt or insolvent;


 


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


 


53

















 


(4)                                  the
Trustee otherwise becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.


 


A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture.  The successor Trustee shall
mail a notice of its succession to Securityholders.  The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.


 


If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the Securities at
the time outstanding may petition any court of competent jurisdiction at the
expense of the Company for the appointment of a successor Trustee.


 


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


 


Section 7.9                                      Successor
Trustee by Merger.  If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.


 


Section 7.10                                Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1) and
310(b).  The Trustee (or its parent
holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the SEC the application referred to in the penultimate paragraph of TIA
Section 310(b).


 


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


 


ARTICLE VIII


 


AMENDMENTS


 


Section 8.1                                      Without
Consent of Holders.  The Company and
the Trustee may amend, modify or supplement this Indenture or the Securities
without the consent of any Securityholder to:


 


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(a)                                  add
to the covenants of the Company for the benefit of the Holders;


 


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


 


(c)                                  provide
for conversion rights of Holders in the event that any reclassification or
change of the Common Stock or any consolidation, merger or sale of all or
substantially all of the Company’s assets occurs;


 


(d)                                 provide
for the assumption of the Company’s obligations to the Holders in the case of a
merger, consolidation, conveyance, sale, transfer or lease of all or
substantially all of the Company’s assets pursuant to Article 5 hereof;


 


(e)                                  reduce
the Conversion Price; provided, however, that such reduction in the Conversion
Price shall not, in the good faith opinion of the Board of Directors, (as
evidenced by a Board Resolution) adversely affect the interests of the Holders in
any material respect (after taking into account tax and other consequences of
such reduction);


 


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


 


(g)                                 make
any changes or modifications necessary in connection with the registration of
the Securities under the Securities Act as contemplated in the Registration
Rights Agreement, provided that such change or modification does not, in the
good faith opinion of the Board of Directors of the Company (as evidenced by a
Board Resolution), adversely affect the interests of the Holders in any
material respect;


 


(h)                                 cure
any ambiguity, to correct or supplement any defective provision herein; provided, however, that such action
pursuant to this clause (h) does not, in the good faith opinion of the Board of
Directors of the Company (as evidenced by a Board Resolution), adversely affect
the interests of the Holders in any material respect; and


 


(i)                                     add
guarantees with respect to the Securities; or


 


(j)                                     add
or modify any other provisions herein with respect to matters or questions
arising hereunder which the Company may deem necessary or desirable and that
will not, in the good faith opinion of the Board of Directors of the Company
(as evidenced by a Board Resolution), adversely affect the interests of the
Holders in any material respect.


 


Section 8.2                                      With
Consent of Holders.  Except as
provided below in this Section 8.2, this Indenture or the Securities may
be amended, modified or supplemented, and noncompliance in any particular
instance with any provision of this Indenture or the Securities may be waived,
in each case with the written consent of the Holders of at least a majority of
the principal amount of the Securities at the time outstanding.


 


Without the written consent or the affirmative vote of each Holder
affected thereby, an amendment or waiver under this Section 8.2 may not:


 


55

















 


(a)                                  change
the maturity of the principal amount of, or the date any installment of
interest (including Additional Interest and Additional Amounts, if any) is due
on, any Security;


 


(b)                                 reduce
the principal amount of, or interest (including Additional Interest and
Additional Amounts, if any) payable on, or the Redemption Price or Repurchase
Price of, any Security;


 


(c)                                  change
the currency of any amount owed or owing under the Security or any interest
(including Additional Interest and Additional Amounts, if any) thereon from
U.S. Dollars;


 


(d)                                 alter
the manner of calculation or rate of accrual of interest (including Additional
Interest and Additional Amounts, if any) on any Securities or extend the
payment of any such amount;


 


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


 


(f)                                    modify
the obligation of the Company to maintain an office or agency in The City of
New York pursuant to Section 4.5;


 


(g)                                 except
as otherwise permitted or contemplated by the provisions of Articles 3, 5 and 9
hereof, adversely affect the repurchase right of the Holders of the Securities
as provided in Article 3 or the right of the Holders of the Securities to
convert any Security as provided in Article 9;


 


(h)                                 change
the redemption provisions in Article 3 in a manner adverse to Holders;


 


(i)                                     reduce
the percentage in aggregate principal amount of Securities outstanding
necessary to modify or amend this Indenture or to waive any past Default;


 


(j)                                     modify
any of the provisions of this Section 8.2, or reduce the principal amount of
outstanding Securities required to waive a default, except to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby; or


 


(k)                                  reduce
the percentage of the principal amount of the outstanding Securities the
consent of whose Holders is required for any such supplemental indenture or the
consent of whose Holders is required for any waiver provided for in this
Indenture.


 


It shall not be necessary for the consent of the Holders under this
Section 8.2 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.


 


After an amendment under this Section 8.2 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.


 


56

















 


Nothing in this Section 8.2 shall impair the ability of the Company and
the Trustee to amend this Indenture or the Securities without the consent of
any Securityholder to provide for the assumption of the Company’s obligations
to the Holders in the case of a merger, consolidation, conveyance, transfer or
lease pursuant to Article 5 hereof.


 


Section 8.3                                      Compliance
with Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article 8 shall comply with
the TIA as then in effect.


 


Section 8.4                                      Revocation
and Effect of Consents, Waivers and Actions.  Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder’s
Security, even if notation of the consent, waiver or action is not made on the
Security.  However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder’s
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment, waiver or action becomes
effective.  After an amendment, waiver
or action becomes effective, it shall bind every Securityholder.


 


Section 8.5                                      Notation
on or Exchange of Securities. 
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 8 may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for outstanding Securities.


 


Section 8.6                                      Trustee
to Sign Supplemental Indentures. 
The Trustee may, but need not, sign any supplemental indenture pursuant
to this Article 8.  In signing any
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 7.1) shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture and that all conditions precedent have been
satisfied.


 


Section 8.7                                      Effect
of Supplemental Indentures.  Upon
the execution of any supplemental indenture under this Article 8, 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 theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.


 


ARTICLE IX


 


CONVERSIONS


 


Section 9.1                                      Conversion
Right and Conversion Price.


 


(a)                                  Subject
to and upon compliance with the provisions of this Article 9, a Holder shall
have the right, at such Holder’s option, to convert all or any portion (if the
portion to be converted is $1,000 or an integral multiple of $1,000) of such
Security, unless previously


 


57

















 


converted, redeemed or
repurchased, into fully paid and nonassessable shares of Common Stock at the
Conversion Price in effect on the date of conversion, if any of the conditions
to conversion set forth in Section 9.1(b) is satisfied.


 


Conversion rights shall be subject to the following: (i) prior to the
Stockholder Approval, the Company’s obligation to pay cash in lieu of Common
Stock as set forth in Section 9.3 and (ii) after the Stockholder Approval, the
Company’s right to pay Common Stock, cash or a combination of cash and Common
Stock as set forth in Section 9.4.


 


Until the Company obtains the Stockholder Approval, the Company shall
deliver upon conversion (other than in the case of a conversion pursuant to
Section 9.1(b)(2)): (1) an amount of cash equal to the lesser of (i) the
principal amount of the Securities to be converted and (ii) the aggregate
Conversion Value of such Securities, plus (2) a number of shares of Common
Stock, not to exceed 59.95885 shares of Common Stock per $1,000 principal
amount of Securities, equal to the quotient of (i) the excess (if any) of the
aggregate Conversion Value of such Securities over their aggregate principal
amount divided by (ii) the arithmetic average of the Volume Weighted Average
Price of the Common Stock for each Trading Day during the Cash Settlement
Averaging Period.  Notwithstanding the
foregoing, until the Company obtains the Stockholder Approval, the aggregate
shares of Common Stock the Company may deliver pursuant to this Article 9 shall
be limited to the Capped Shares.


 


After the Company obtains the Stockholder Approval, the Company shall
deliver, upon conversion, Common Stock, cash or a combination of cash and
Common Stock as set forth in Section 9.4, and the aggregate number of shares
the Company may deliver pursuant to this Article 9 shall no longer be limited
to the Capped Shares.


 


To the extent a Holder converts one or more Securities pursuant to
Section 9.1(b)(2), the Company shall deliver: (i) prior to the Stockholder
Approval, an amount of cash equal to the lesser of (A) the aggregate Conversion
Value of such Securities, or (B) the aggregate principal amount of such
Securities, or (ii) after the Stockholder Approval, Common Stock, cash or a
combination of cash and Common Stock as set forth in Section 9.4.


 


(b)                                 Subject
to and in compliance with this Article 9, the Securities or any portion thereof
may be converted if any of the conditions to conversion set forth in this
Section 9.1(b) is satisfied.


 


(1)                                  Conversion
Upon Satisfaction of Common Stock Price Conditions. Any Holder may
surrender all or any portion of his or her Securities for conversion (at the
Conversion Rate in effect) during any fiscal quarter if the Sale Price of the
Common Stock for at least 20 consecutive Trading Days in the 30-Trading-Day period
ending on the last Trading Day of the preceding fiscal quarter is greater than
or equal to 120% of the Conversion Price (the Sale Price of the Common Stock at
or above which the Securities may be converted being referred to herein as the
“Conversion Trigger Price”) on the last Trading Day of such fiscal
quarter.  The initial Conversion Trigger
Price per share is $14.11 (assuming no other adjustments have been made since
the Issue Date).


 


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(2)                                  Conversion
Upon Satisfaction of Security Price Conditions.  Any Holder may surrender all or any portion of his or her
Securities for conversion during the five-consecutive-Business-Day period
immediately following a five-consecutive-Trading-Day period in which the Sale
Price per $1,000 principal amount of Securities for each day of such
five-consecutive-Trading-Day period was less than 98% of the Conversion Value;
provided that the Securities shall not be convertible pursuant to this Section
9.1(b)(2) after December 15, 2021 if on any Trading Day during such
five-Trading-Day period the Sale Price of the Common Stock is between 100% and
120% of the then-current Conversion Price.


 


(3)                                  Conversion
Upon Redemption Notice.  At any time
prior to the close of business on the second Business Day preceding the date
fixed for redemption, if such Security has been called for redemption pursuant
to Section 3.1 hereof.


 


(4)                                  Conversion
Upon Specified Corporate Transactions. Any Holder may surrender all or any
portion of his or her Securities for conversion at any time at the Conversion
Rate in effect if:


 


(i)                                     the
Company distributes to all or substantially all holders of its shares of Common
Stock rights or warrants entitling them (for a period expiring within 60 days
of the date of such distribution) to subscribe for or purchase shares of Common
Stock, at a price per share less than the Sale Price of the Common Stock at the
time of the announcement of such distribution,


 


(ii)                                  the
Company distributes to all or substantially all holders of its shares of Common
Stock, cash or other assets, debt securities or rights or warrants to purchase
its securities, which distribution (together with all other distributions
covered by this clause (ii) not triggering a conversion right during the preceding
12 months) has a per share value exceeding 5% of the Sale Price of the Common
Stock on the day preceding the declaration date for the distribution, or


 


(iii)                               a
Change of Control (except for such Change of Control that occurs due to a
consolidation, merger or binding share exchange set forth in the next
succeeding paragraph) would have occurred but for the fact that either (A) the
Sale Price of the Common Stock during the periods described in the definition
of Change of Control exceeds specified levels (as specified in
Section 3.7(b)(2)(i)) or (B) the consideration received in such Change of
Control consists of Capital Stock that is freely tradeable and the Securities
become convertible into that Capital Stock as specified in Section 3.7(b)(2)(ii),


 


then, in each case, the Securities may be surrendered
for conversion at any time on and after the date that the Company gives notice
to the Holders of such right, which shall be not less than 20


 


59

















 


days prior to the Ex-Dividend Time for such
distribution, in the case of clause (i) or clause (ii), or within 20 Business
Days after the occurrence of the event specified in clause (iii), in the case
of clause (iii), until (A) the earlier of the close of business on the Business
Day immediately preceding the Ex-Dividend Time and the date the Company
announces that such distribution shall not take place, in the case of clause
(i) or (ii), or (B) 20 Business Days after the Company’s delivery of the notice
with respect to the event specified in clause (iii), in the case of clause
(iii).


 


In addition, any Holder may surrender all or any portion of his or her
Securities for conversion at any time at the Conversion Rate in effect if the
Company consolidates with or merges into another corporation, or is a party to
a binding share exchange pursuant to which the shares of Common Stock would be
converted into cash, securities or other property as set forth in Section 9.8
hereof. In such event, the Security may be surrendered for conversion at any
time from and after the date which is 15 days prior to the date announced by
the Company as the anticipated effective time of such transaction until 15 days
after the actual date of such transaction. In the event a Holder does not
convert its Security during this time period, such Holder shall be entitled to
receive, upon conversion, the kind and amount of cash, securities or other
property that it would have received if it had converted its Security
immediately prior to such consolidation, merger or binding share exchange.  If the Company engages in any transaction in
the preceding sentence, the Conversion Rate shall not be otherwise adjusted.


 


Such conversion right shall expire at the close of business on the
Business Day immediately preceding December 15, 2023.


 


The Conversion Agent shall, on behalf of the Company, determine on a
quarterly basis whether the Securities shall be convertible pursuant to Section
9.1(b)(1) and, if the Securities shall be so convertible, the Conversion Agent
shall promptly deliver to the Company and the Trustee written notice thereof.


 


In connection with any conversion pursuant to Section 9.1(b)(2), the
Conversion Agent shall have no obligation to determine the Sale Price of the
Securities unless the Company has requested such determination and the Company
shall have no obligation to make such request unless a Holder provides the
Company with reasonable evidence that on a Trading Day, the Sale Price per
$1,000 principal amount of Securities would be less than 98% of the Conversion
Value.  At such time, the Company shall
instruct the Conversion Agent to determine the Sale Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the
Sale Price per $1,000 principal amount of Securities would be greater than or
equal to 98% of the Conversion Value. 
The Company shall confirm by written notice to the Conversion Agent
whether such determination made by the Conversion Agent satisfies the
conditions set forth in Section 9.1(b)(2).


 


Whenever the Securities shall become convertible pursuant to this
Section 9.1(b) (in the case of a conversion pursuant to Section 9.1(b)(2),
whenever the Conversion Agent has determined that the Securities shall become
convertible pursuant to Section 9.1(b)(2)), the Company or, at the Company’s
request, the Trustee in the name and at the expense of the Company, shall
notify the Holders of the event triggering such convertibility in the manner
provided in Section 11.2, and the Company shall also publicly announce such
information and publish it on the Company’s web site (or otherwise broadly
disseminate the information in any


 


60

















 


manner deemed reasonable by the Company).  Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.


 


The Company hereby agrees, and each Holder by its purchase thereof
shall be deemed to have agreed, that the Conversion Agent shall incur no
liability in connection with its obligations under the preceding paragraph
(including, without limitation, in connection with any determination whether at
any time the Securities shall be convertible as a result of the occurrence of
an event specified in clause (1) or clause (2) above), except such liability as
may result from the Conversion Agent’s gross negligence or willful
misconduct.   In no event shall the
Conversion Agent be liable to any Person, including any Holder, for any consequential,
punitive or special damages.  The
Company agrees to indemnify the Conversion Agent for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense (including the
costs and expenses of defending against any claim (regardless of who asserts
such claim) of liability) incurred by the Conversion Agent that arises out of
or in connection with its obligations under the preceding paragraph, except
such as may result from the gross negligence or willful misconduct of the
Conversion Agent or any of its agents or employees.  The provisions of this paragraph shall survive the termination of
this Indenture.


 


Section 9.2                                      Conversion
Procedures.


 


(a)                                  Before
any Holder shall be entitled to convert the same into Common Stock, such Holder
shall, in the case of Global Securities, comply with the procedures of the
Depositary in effect at that time, and in the case of Certificated Securities,
surrender such Securities, duly endorsed to the Company or in blank, at the
office of the Conversion Agent, and shall give written notice to the Company at
said office or place that such Holder elects to convert the same and shall
state in writing therein the principal amount of Securities to be converted and
the name or names (with addresses) in which such Holder wishes the certificate
or certificates for Common Stock to be issued.


 


Before any such conversion, a Holder also shall pay all funds required,
if any, relating to interest on the Securities, as provided in
Section 9.12, and all taxes or duties, if any, as provided in
Section 9.11.


 


(b)                                 Within
five Trading Days after receiving the conversion notice (the “Cash Settlement
Notice Period”), if the Company is satisfying all or any part of its obligation
(the “Conversion Obligation”) in cash (except for cash paid in lieu of
fractional shares), then the Company or, pursuant to a Company Order, the
Trustee on behalf of the Company and at the Company’s expense, shall send a
notice to the Holder stating the following:


 


(1)                                  the
Conversion Rate;


 


(2)                                  the
name and address of the Conversion Agent;


 


(3)                                  the
CUSIP number, if any, relating to such Securities.


 


(4)                                    the
dollar amount to be satisfied in cash (which must be expressed either as 100%
of the obligation or as a fixed dollar amount), not including any cash for
fractional interests in shares of Common Stock;


 


61

















 


(5)                                    that
Securities must be surrendered to and received by the Conversion Agent prior to
the conversion being paid in cash or shares of Common Stock;


 


(6)                                    briefly,
the conversion rights of the Securities, and that the Holder must satisfy the
requirements set forth in the Indenture in order to convert the Securities;


 


(7)                                    whether
the conversion notice is subject to withdrawal and the procedures for
withdrawal; and


 


(8)                                    that,
unless the Company defaults on the conversion, interest on Securities
surrendered for purchase shall cease to accrue on and after the conversion
date.


 


(c)                                  The
settlement procedures upon conversion are set forth in Sections 9.3 and
9.4.  Subject to the next succeeding sentence,
if a Holder shall surrender its Securities for conversion, the Company shall,
as soon as practicable thereafter, issue and deliver at said office or place to
such Holder, or to such Holder’s nominee or nominees, certificates for the
number of full shares of Common Stock to which such Holder shall be entitled as
aforesaid, together with cash in lieu of Common Stock (or a combination of
Common Stock and cash) as set forth in this Indenture and cash in lieu of any
fraction of a share to which such Holder would otherwise be entitled.  The Company shall not be required to deliver
certificates for shares of Common Stock while the stock transfer books for such
stock or the security register are duly closed for any purpose, but
certificates for shares of Common Stock shall be issued and delivered as soon
as practicable after the opening of such books or security register.


 


(d)                                 Except
as otherwise stated in this Indenture, the Company shall not make any payment
in cash or any other adjustment for accrued and unpaid interest (including
Additional Interest and Additional Amounts, if any) or dividends in connection
with the issuance of any Common Stock issued upon conversion of the Securities.
On conversion of Securities, except as otherwise stated herein, a Holder shall
not receive any cash payment or additional shares in respect thereof
representing, accrued and unpaid interest (including Additional Interest and
Additional Amounts, if any). Delivery by the Company to the Holder of the full
number of shares of Common Stock into which the Securities are convertible,
cash or a combination of Common Stock and cash (together with any cash payment
in lieu of fractional shares) shall be deemed to satisfy the Company’s
obligation to pay the principal amount of the Securities and to satisfy its
obligation to pay any accrued and unpaid interest (including Additional
Interest and Additional Amounts, if any) attributable to the period from the
Issue Date through the conversion date. As a result, any accrued and unpaid
interest (including Additional Interest and Additional Amounts, if any) is
deemed paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the foregoing, accrued and unpaid interest (including
Additional Interest and Additional Amounts, if any) shall be payable upon any
conversion of the Securities at the option of the Holder made concurrently with
or after acceleration of the Securities following an Event of Default under the
Securities.


 


(e)                                  Notwithstanding
the foregoing, a Security in respect of which a Holder has delivered a
Repurchase Notice exercising such Holder’s option to require the Company to


 


62

















 


repurchase such Security
may be converted only if such Repurchase Notice is withdrawn in accordance with
the Section 3.8 hereof.


 


(f)                                    A
Security shall be deemed to have been converted as of the close of business on
the date of the surrender of such Securities for conversion as provided above,
and the Person or Persons entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as the record Holder or
Holders of such Common Stock as of the close of business on such date.


 


(g)                                 If
more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares of Common Stock which shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted thereby) so surrendered.


 


(h)                                 In
case any Security shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to or upon the
written order of the Holder of the Security so surrendered, without charge to
such Holder (subject to the provisions of Section 9.11 hereof), a new
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Securities.


 


Section 9.3                                      Settlement
Procedures Upon Conversion Prior to the Stockholder Approval.


 


(a)                                  If
at the time of receipt of the Holders’ conversion notice (other than a
conversion pursuant to Section 9.1(b)(2)), the Company has not obtained the
Stockholder Approval, the Company shall satisfy the conversion notice by
delivering:


 


(1)                                  an
amount of cash equal to the lesser of (A) the aggregate principal amount of the
Security to be converted, or (B) the Conversion Value; plus


 


(2)                                  a
number of shares of Common Stock equal to the quotient of (A) the excess, if
any, of (i) the Conversion Value, over (ii) the aggregate principal amount of
the Security to be converted, divided by (B) the arithmetic average of the
Volume Weighted Average Price of the Common Stock for each Trading Day during
the Cash Settlement Averaging Period; subject to a maximum of 59.95885 per
$1,000 principal amount of Securities. 
For the purposes of this Section 9.3(a), the “Cash Settlement
Averaging Period” shall be the 20-Trading-Day period beginning on the third
Trading Day after the Company receives the Holder’s conversion notice.


 


Settlement in cash and/or Common Stock shall occur on
the third Trading Day following the final day of the applicable Cash Settlement
Averaging Period.


 


(b)                                 If
at the time of receipt of the Holders’ conversion notice pursuant to 9.1(b)(2),
the Company has not obtained the Stockholder Approval, the Company shall
satisfy the conversion notice by delivering an amount of cash equal to the
lesser of:


 


63

















 


(1)                                  the
aggregate principal amount of the Security to be converted, or


 


(2)                                  the
Conversion Value.


 


Settlement in cash shall occur on the fifth Trading
Day after the Company receives the Holders’ conversion notice.


 


Section 9.4                                      Settlement
Procedures Upon Conversion After the Stockholder Approval.


 


(a)                                  If
at the time of receipt of the Holder’s conversion notice, the Company has
obtained the Stockholder Approval and the Company receives the conversion
notice on or prior to the day that is 30 Trading Days before Stated Maturity (the
“Final Notice Date”), the following settlement procedures shall apply:


 


(1)                                  If
the Company elects to satisfy all or any portion of the Conversion Obligation
in cash, the Company shall notify Holders through the Trustee of the dollar
amount to be satisfied in cash at any time during the Cash Settlement Notice
Period.


 


(2)                                  If
the Company timely elects to satisfy all or any portion of the Conversion
Obligation in cash, the Holder may retract the conversion notice at any time
during the two-Trading-Day period beginning on the day after the final day of
the Cash Settlement Notice Period (the “Conversion Retraction Period”).  No such retraction may be made (and a
Holder’s conversion notice shall be irrevocable) if the Company does not elect
to satisfy any portion of the Conversion Obligation in cash (other than cash in
lieu of fractional shares).


 


(3)                                  If
the conversion  notice has not been retracted, then settlement (in
cash and/or Common Stock) shall occur on the third Trading Day following the
final day of the 20-Trading-Day period beginning on the third Trading-Day
following the final day of the Conversion Retraction Period (the “Cash
Settlement Averaging Period”).


 


(4)                                  The
settlement amount for conversion (other than a conversion pursuant to Section
9.1(b)(2)) shall be computed as follows:


 


(i)                                     If
the Company elects to satisfy the entire Conversion Obligation in Common Stock,
then the Company shall deliver the number of shares equal to (A) the aggregate
principal amount of the Security to be converted divided by 1,000, multiplied
by (B) the Conversion Rate.


 


(ii)                                  If
the Company elects to satisfy the entire Conversion Obligation in cash, then
the Company shall deliver cash in an amount equal to (A) a number equal to the
aggregate principal amount of the Security to be converted divided by 1,000,
multiplied by the


 


64

















 


Conversion Rate, multiplied by (B) the arithmetic
average of the Volume Weighted Average Prices of Common Stock during the Cash
Settlement Averaging Period.


 


(iii)                               If
the Company elects to satisfy a portion (other than 100%) of the Conversion
Obligation in cash, then the Company shall deliver such cash amount (“Cash
Amount”) plus the number of shares of Common Stock equal to the greater of (A)
zero and (B) the excess, if any, of:


 


a.                                       the
number of shares of Common Stock equal to the aggregate principal amount of the
Security to be converted divided by 1,000, multiplied by the Conversion Rate,
minus


 


b.                                      the
number of shares of Common Stock equal to the quotient of the Cash Amount
divided by the arithmetic average of the Volume Weighted Average Prices of the
Common Stock during the Cash Settlement Averaging Period.


 


(5)                                  The
settlement amount for a conversion pursuant to Section 9.1(b)(2) shall be
calculated as follows:


 


(i)                                     If
the Company elects to satisfy the entire Conversion Obligation in cash, then
the Company shall deliver the lesser of:


 


a.                                       the
aggregate principal amount of the Security to be converted, or


 


b.                                      the
product of (A) a number equal to the aggregate principal amount of the Security
to be converted divided by 1,000, multiplied by the Conversion Rate and (B) the
arithmetic average of the Volume Weighted Average Prices of the Common Stock
during the Cash Settlement Averaging Period.


 


(ii)                                  If
the Company elects to satisfy the entire Conversion Obligation in Common Stock,
then the Company shall deliver the number of shares equal to the lesser of:


 


a.                                       the
aggregate principal amount of the Security to be converted divided by 1,000,
multiplied by the Conversion Rate, or


 


b.                                      the
aggregate principal amount of the Security to be converted divided by the Sale
Price of the Common Stock on the last Trading Day preceding the conversion
date.


 


65

















 


(iii)                               If
the Company elects to satisfy a portion (other than 100%) of the Conversion
Obligation in cash, then the Company shall deliver such Cash Amount plus the
number of shares of Common Stock equal to the lesser of:


 


a.                                       (X)
the aggregate principal amount of the Security to be converted divided by
1,000, multiplied by the Conversion Rate, minus (Y) the quotient of the Cash
Amount divided by the arithmetic average of the Volume Weighted Average Price
of a share of Common Stock during the Cash Settlement Averaging Period, or


 


b.                                      (X)
the aggregate principal amount of the Security to be converted divided by the
Sale Price of the Common Stock on the last Trading Day preceding the conversion
date, minus (Y) the quotient of the Cash Amount divided by the arithmetic
average of the Volume Weighted Average Price of a share of Common Stock during
the Cash Settlement Averaging Period.


 


(6)                                  Settlement
in cash and/or Common Stock shall occur on the third Trading Day following the
final day of the applicable Cash Settlement Averaging Period.


 


(b)                                 If
at the time of receipt of the Holder’s conversion notice, the Company has
obtained the Stockholder Approval and the Company receives a Holder’s
conversion notice after the Final Notice Date, the following settlement
procedures shall apply:


 


(1)                                  If
the Company elects to satisfy all or any portion of the Conversion Obligation
in cash, the Company shall notify Holders through the Trustee of the dollar
amount to be satisfied in cash (which shall be expressed either 100% of the
Conversion Obligation or as a fixed dollar amount) at any time during the Cash
Settlement Notice Period.


 


(2)                                  Settlement
amount shall be computed, and settlement dates shall be determined, in the same
manner as set forth in Section 9.4(a)(4) with respect to a conversion other
than pursuant to Section 9.1(b)(2) (and as set forth in Section 9.4(a)(5) with
respect to a conversion pursuant to Section 9.1(b)(2)) except that for the
purposes of this Section 9.4(b), the “Cash Settlement Averaging Period”
shall be the 20-Trading-Day period that begins on the date that is the 23rd
Trading Day prior to Stated Maturity.


 


(3)                                  If the Company elects to satisfy all or any
portion of the Conversion Obligation in cash, settlement shall occur on the
third Trading Day following the final day of such Cash Settlement Averaging
Period (which may be after the Stated Maturity).  If the Company elects to satisfy the


 


66

















 


entire Conversion Obligation in the Common Stock, settlement shall occur at Stated Maturity.


 


(4)                                  A
Holder cannot retract such Holder’s conversion notice if the Holder delivers
the notice after the Final Notice Day (and the conversion notice therefore
shall be irrevocable).


 


(c)                                  Notwithstanding
the foregoing, if the Common Stock experiences any of the disruption events set
forth under clause (a), (b) or (c) of the definition of “Trading Day” on any
day during the original Cash Settlement Averaging Period (determined assuming
the Common Stock experienced none of such disruption events during such
period), which would result in a price being determined later than the eighth
Trading Day after the last day of the original Cash Settlement Averaging
Period, then the Company shall determine all prices for all delayed and
undetermined prices on that eighth Trading Day based on the Company’s good
faith estimate of the Common Stock’s value on that date.


 


Section 9.5                                      Fractional
Shares.


 


The Company shall not issue fractional shares of Common Stock upon
conversion of Securities. In lieu thereof, the Company shall pay an amount in
cash based upon the Sale Price of the Common Stock on the third Trading Day
prior to the conversion date.


 


Section 9.6                                      Company
to Provide Stock.


 


(a)                                  Until
the Company obtains the Stockholder Approval, the maximum number of shares of
Common Stock that may be delivered pursuant to this Article 9 shall be limited
to 5,995,885 shares (the “Capped Shares”).


 


(b)                                 The
Company hereby agrees to use its reasonable best efforts to obtain the
Stockholder Approval within 120 days from the date hereof (the “Stockholder
Approval Deadline”).  If the Stockholder
Approval is not obtained by the Stockholder Approval Deadline (the “Stockholder
Approval Default”), then the Company hereby agrees to pay additional interest
(as increased, if applicable, pursuant to this Section 9.6(b), the “Additional
Interest”) on the Securities from and including the day following the
Stockholder Approval Deadline to but excluding the earlier of (i) the 91st
day after the Stockholder Approval Deadline and (ii) the day on which the
Stockholder Approval Default has been cured, in an amount equal to 0.25% per
annum on the principal amount of the Securities then outstanding.  If the Stockholder Approval is not obtained
within 90 days from the Stockholder Approval Deadline (the “Second Stockholder
Approval Deadline”), then the Company hereby agrees to pay Additional Interest
on the Securities from and including the 91st day after the
Stockholder Approval Deadline to, but excluding, the earlier of (i) the 61st
day after the Second Stockholder Approval Deadline and (ii) the day on
which the Stockholder Approval Default has been cured in an amount equal to
0.50% per annum on the principal amount of the Securities then
outstanding.  If the Stockholder
Approval is not obtained within 60 days from the Second Stockholder Approval
Deadline (the “Third Stockholder Approval Deadline”), then the Company hereby
agrees to pay Additional Interest on the Securities from and including the 61st
day after the Second Stockholder Approval Deadline to, but excluding, the day
on which the Stockholder Approval Default has been cured


 


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in an amount equal to
0.75% per annum on the principal amount of the Securities then
outstanding.  For clarification, the
Additional Interest of 0.50% per annum is in substitute for, and not in
addition to, the Additional Interest of 0.25% per annum applicable only for the
first 90 days after the Stockholder Approval Deadline and the Additional
Interest of 0.75% per annum is in substitute for, and not in addition to, the
Additional Interest of 0.50% per annum applicable only for the first 60 days
after the Second Stockholder Approval Deadline.  The Company shall give the Trustee written notice if it does not
obtain the Stockholder Approval by the Stockholder Approval Deadline, the
Second Stockholder Approval Deadline or the Third Stockholder Approval
Deadline.  The Company shall also give
the Trustee written notice if it obtains the Stockholder Approval.


 


(c)                                  After
Stockholder Approval is obtained, the Company shall, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a
sufficient number of shares of Common Stock to permit the conversion of all
outstanding Securities into shares of Common Stock.


 


(d)                                 Notwithstanding
the foregoing, nothing contained herein shall preclude the Company from
satisfying its obligations in respect of the conversion of the Securities by
delivery of purchased shares of Common Stock which are then held in the
treasury of the Company.


 


(e)                                  The
Company covenants that all shares of Common Stock which may be issued upon
conversion of Securities will upon issue be fully paid and nonassessable and
free from all liens and charges and, except as provided in Section 9.11,
taxes with respect to the issue thereof.


 


(f)                                    If
any shares of Common Stock which would be issuable upon conversion of
Securities hereunder require registration with or approval of any governmental
authority before such shares or securities may be issued upon such conversion,
the Company will in good faith and as expeditiously as possible endeavor to
cause such shares or securities to be duly registered or approved, as the case
may be.  The Company further covenants
that so long as the Common Stock shall be listed on the New York Stock
Exchange, the Company will, if permitted by the rules of such exchange, list
and keep listed all Common Stock issuable upon conversion of the Securities,
and the Company will endeavor to list the shares of Common Stock required to be
delivered upon conversion of the Securities prior to such delivery upon any
other national securities exchange upon which the outstanding Common Stock is
listed at the time of such delivery.


 


Section 9.7                                      Adjustment of
Conversion Rate.  The Conversion Rate
shall be adjusted from time to time as follows:


 


(a)                                  In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, pay a dividend or make a distribution in shares of
Common Stock to all holders of its outstanding shares of Common Stock, then the
Conversion Rate in effect at the opening of business on the date following the
Record Date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be increased by multiplying such
Conversion Rate by a fraction:


 


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(1)                                  the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the Record Date fixed for such
determination plus the total number of shares constituting such dividend or
other distribution; and


 


(2)                                  the
denominator of which shall be the number of shares of Common Stock outstanding
at the close of business on the Record Date fixed for such determination.


 


Such increase shall become effective immediately after the opening of
business on the day following the Record Date fixed for such
determination.  If any dividend or
distribution of the type described in this Section 9.7(a) is declared but
not so paid or made, the Conversion Rate shall again be adjusted to the
Conversion Rate which would then be in effect if such dividend or distribution
had not been declared.


 


(b)                                 In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, then the Conversion Rate in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and
conversely, in case the Company shall, at any time or from time to time while
any of the Securities are outstanding, combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then the Conversion Rate
in effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately reduced.


 


Such increase or reduction, as the case may be, shall become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.


 


(c)                                  In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, issue rights or warrants (other than any rights or warrants referred to in Section 9.7(d)) to
all or substantially all holders of its shares of Common Stock entitling them
to subscribe for or purchase shares of Common Stock (or securities convertible
into shares of Common Stock) at a price per
share (or having a conversion price per share) less than the Sale Price
on the Business Day immediately preceding the date of the announcement of such
issuance (treating the conversion price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit of the
security convertible into Common Stock and (ii) any additional consideration
initially payable upon the conversion of such security into Common Stock
divided by (y) the number of shares of Common Stock initially underlying such
convertible security), then the Conversion Rate shall be adjusted to equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date after such date of the announcement by a fraction:


 


(1)                                  the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding on the close of business on the date of the announcement, plus the
total number of additional shares of Common 


 


69

















 


Stock so offered for subscription or purchase (or into
which the convertible securities so offered are convertible); and


 


(2)                                  the
denominator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date of the announcement, plus the
number of shares of Common Stock or securities which the aggregate offering
price of the total number of additional shares of Common Stock or securities so
offered for subscription or purchase (or the aggregate conversion price of the
convertible securities so offered) would purchase at such Sale Price of the
Common Stock.


 


Such adjustment shall become effective immediately
after the opening of business on the day following the date of announcement of
such issuance.  To the extent that
shares of Common Stock (or securities convertible into shares of Common Stock)
are not delivered pursuant to such rights or warrants, upon the expiration or
termination of such rights or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of the
delivery of only the number of shares of Common Stock (or securities
convertible into shares of Common Stock) actually delivered.  In the event that such rights or warrants
are not so issued, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if the date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed.  In determining whether
any rights or warrants entitle the holders to subscribe for or purchase shares
of Common Stock at less than such Sale Price, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into
account any consideration received for such rights or warrants, the value of
such consideration if other than cash, to be determined by the Board of
Directors.


 


(d)                                 In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, by dividend or otherwise, distribute to all or
substantially all holders of its shares of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation and the Common Stock is not changed or
exchanged), cash, shares of its capital stock (other than the Common Stock and
any dividends or distributions to which Section 9.7(a) applies), evidences
of its Indebtedness or other assets, including securities, but excluding (i)
any rights or warrants referred to in Section 9.7(c), (ii) dividends
or distributions of stock, securities or other property or assets (including
cash) in connection with a reclassification, consolidation, merger, statutory
share exchange, combination, sale or conveyance to which Section 9.8
applies and (iii) dividends and distributions paid exclusively in cash (such
capital stock, evidence of its Indebtedness, cash, other assets or securities
being distributed hereinafter in this Section 9.7(d) called the
“distributed assets”), then, in each such case, subject to the third and fourth
succeeding paragraphs and the third last paragraph of this Section 9.7(d),
the Conversion Rate in effect immediately prior to the close of business on the
Record Date with respect to such distribution shall be adjusted to equal the
rate determined by multiplying such Conversion Rate by a fraction:


 


(1)                                  the
numerator of which shall be the Conversion Price in effect; and


 


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(2)                                  the
denominator of which shall be such Conversion Price in effect, less the Fair
Market Value on such date of the portion of the distributed assets so
distributed applicable to one share of Common Stock (determined on the basis of
the number of shares of Common Stock outstanding on the Record Date)
(determined as provided in Section 9.7(g)) on such date.


 


Such adjustment shall become effective immediately prior to the opening
of business on the day following the Record Date for such distribution.  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 which would then be in effect if such
dividend or distribution had not been declared.


 


Except as provided in the next paragraph, if the Board of Directors
determines the Fair Market Value of any distribution for purposes of this
Section 9.7(d) by reference to the actual or when issued trading market
for any distributed assets comprising all or part of such distribution, it must
in doing so consider the prices in such market over the ten consecutive Trading
Days immediately prior to the date of determination to the extent possible,
unless the Board of Directors determines in good faith that determining the
Fair Market Value during such period would not be in the best interest of the
Holders.


 


In the event any such distribution consists of shares of capital stock
of, or similar equity interests in, one or more of the Company’s Subsidiaries
(a “Spin-Off”), the Fair Market Value of the securities to be distributed shall
equal the average of the Sale Prices of such securities on the principal
securities market on which such securities are traded for the ten consecutive
Trading Days commencing on and including the fifth Trading Day after the date
on which the ex-distribution trading commences for such Spin-Off securities on
the principal national or regional exchange or market on which those securities
are then listed or quoted.  In the
event, however, that an underwritten initial public offering of the securities
in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market Value of
the securities distributed in the Spin-Off shall mean the initial public offering
price of such securities.


 


Rights or warrants distributed by the Company to all holders of its
Common Stock entitling them 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 Common
Stock, (ii) are not exercisable and (iii) are also issued in respect of future
issuances of shares of Common Stock (including the shares to be issued upon
conversion of the Securities) shall be deemed not to have been distributed for
purposes of this Section 9.7(d) (and no adjustment to the Conversion Rate
under this Section 9.7(d) shall be required) until the occurrence of the
earliest Trigger Event.  If such right
or warrant is subject to subsequent events, upon the occurrence of which such
right or warrant shall become exercisable to purchase different distributed
assets, evidences of Indebtedness or other assets, or entitle the holder to
purchase a different number or amount of the foregoing or to purchase any of
the foregoing at a different purchase price, then the occurrence of each such
event shall be deemed to be the date of issuance and Record Date with respect
to a new right or warrant (and a termination or expiration of the existing
right or warrant without exercise by the holder thereof).  In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other


 


71

















 


event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Rate under this Section 9.7(d):


 


(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 Rate shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder of shares of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all
holders of shares 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, the Conversion Rate shall be readjusted as if such rights and
warrants had never been issued.


 


For purposes of this Section 9.7(d) and Sections 9.7(a), 9.7(b)
and 9.7(c), any dividend or distribution to which this Section 9.7(d) is
applicable that also includes (i) shares of Common Stock to which Section
9.7(a) applies, (ii) a subdivision or combination of shares of Common Stock to
which Section 9.7(b) applies or (iii) rights or warrants to subscribe for
or purchase shares of Common Stock to which Section 9.7(c) applies (or any
combination thereof), shall be deemed instead to be:


 


(1)                                  a
dividend or distribution of the evidences of Indebtedness, assets, shares of
capital stock, rights or warrants, other than such shares of Common Stock, such
subdivision or combination or such rights or warrants to which
Sections 9.7(a), 9.7(b) and 9.7(c) apply, respectively (and any Conversion
Rate increase required by this Section 9.7(d) with respect to such
dividend or distribution shall then be made), immediately followed by


 


(2)                                  a
dividend or distribution of such shares of Common Stock, such subdivision or
combination or such rights or warrants (and any further Conversion Rate
adjustment required by Sections 9.7(a), 9.7(b) and 9.7(c) with respect to such
dividend or distribution shall then be made), except:


 


(A)                              the
Record Date of such dividend or distribution shall be substituted as (i) “the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution,” “Record Date fixed for such determinations”
and “Record Date” within the meaning of Section 9.7(a), (ii) ”the day
upon which such subdivision becomes effective” and “the day upon which such
combination becomes effective” within the meaning of Section 9.7(b), and
(iii) as “the date fixed for the determination of stockholders entitled to
receive such rights or warrants,” “the Record Date fixed for the determination
of stockholders entitled to receive such rights or warrants” and “Record Date”
within the meaning of Section 9.7(c); and


 


72

















 


(B)                                any
shares of Common Stock included in such dividend or distribution shall not be
deemed “outstanding at the close of business on the date fixed for such
determination” within the meaning of Section 9.7(a) and any reduction or
increase in the number of shares of Common Stock resulting from such
subdivision or combination shall be disregarded in connection with such
dividend or distribution.


 


In the event of any distribution referred to in this
Section 9.7(d) in which (1) the Fair Market Value (as determined by the
Board of Directors) of such distribution applicable to one share of Common
Stock (determined as provided above) equals or exceeds the average of the Sale
Prices of the Common Stock over the ten consecutive Trading Day period ending
on the Record Date for such distribution or (2) the average of the Sale Prices
of the Common Stock over the ten consecutive Trading Day period ending on the
Record Date for such distribution exceeds the Fair Market Value of such
distribution by less than $1.00, then, in each such case, in lieu of an
adjustment to the Conversion Rate, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of a Security, in
addition to shares of Common Stock, the kind and amount of such distribution such
Holder would have received had such Holder converted such Security immediately
prior to the Record Date for determining the shareholders entitled to receive
the distribution.


 


In the event of any distribution referred to in
Section 9.7(c) or 9.7(d), where, in the case of a distribution described
in Section 9.7(d), the Fair Market Value of such distribution per share of
Common Stock (as determined by the Board of Directors) exceeds 5% of the Sale
Price of a share of Common Stock on the Business Day immediately preceding the
declaration date for such distribution, then, if the Securities are otherwise
convertible pursuant to this Article 9, the Company shall be required to
give notice to the Holders at least 20 days prior to the Ex-Dividend Time for
the distribution and, upon the giving of notice, the Securities may be
surrendered for conversion at any time until the close of business on the
Business Day prior to the Ex-Dividend Time or until the Company announces that
the distribution will not take place.  No adjustment to the Conversion Rate or the ability of a Holder to
convert will be made in respect of a distribution described in Sections 9.7(a),
(c), (d) or (e) if the Holder will otherwise participate in such distribution
without conversion.


 


Under the existing rights plan of the Company, or any amendment thereof
or adoption of a new rights plan, while Securities remain outstanding, Holders
shall receive, upon conversion of Securities, in addition to shares of Common
Stock, the rights under the applicable rights plan unless, prior to the
conversion, the rights have expired, terminated or been redeemed or unless the
rights have separated from the Common Stock, in which case the Conversion Rate
in effect shall be adjusted at the time of separation as if the Company had
distributed to all Holders of Common Stock the distributed assets, subject to
readjustment upon the subsequent expiration, termination or redemption of the
rights.


 


(e)                                  In
case the Company shall, by dividend or otherwise, distribute to all or
substantially all holders of its Common Stock, cash (excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary), then, in such case, the
Conversion Rate in effect immediately prior to the close of 


 


73

















 


business on the Record
Date with respect to such distribution shall be adjusted to equal the rate
determined by multiplying such Conversion Rate by a fraction,


 


(1)                                  the
numerator of which shall be the Conversion Price in effect; and


 


(2)                                  the
denominator of which shall be the Conversion Price in effect less the full
amount of cash so distributed as applicable to one share of Common Stock.


 


Such adjustment shall be effective immediately prior to the opening of
business on the day following the Record Date; provided that if the portion of
the cash so distributed applicable to one share of Common Stock is equal to or
greater than the Conversion Price in effect, 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 the Record Date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


 


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


 


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


 


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


 


74

















 


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


 


(g)                                 For
purposes of this Article 9, the following terms shall have the meanings
indicated:


 


“Fair Market Value” shall mean the amount that a willing buyer would
pay a willing seller in
an arm’s-length transaction (as determined in good faith by the Board of
Directors).


 


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


 


(h)                                 The
Company shall be entitled to make such additional increases in the Conversion
Rate, in addition to those required by Sections 9.7(a), (b), (c), (d), (e) and
(f), as the Board of Directors deems advisable to avoid or diminish any income
tax to holders of the Common Stock resulting from any dividend or distribution
of stock (or rights to acquire stock) or from any event treated as such for
income tax purposes.


 


(i)                                     To
the extent permitted by applicable law, the Company may, from time to time,
increase the Conversion Rate by any rate for any period of time, if such period
is at least 20 days and the increase is irrevocable during the
period.  Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall mail to the
Trustee, the Conversion Agent and each Holder at the address of such Holder as
it appears in the register of the Securities maintained by the Registrar, at
least 15 days prior to the date the increased Conversion Rate takes effect, a
notice of the increase stating the increased Conversion Rate and the period
during which it will be in effect.


 


(j)                                     In
any case in which this Section 9.7 shall require that any adjustment be
made effective as of or retroactively immediately following a Record Date, the
Company may elect to defer (but only for five Trading Days following the filing
of the statement referred to in Section 9.5) issuing to the Holder of any
Securities converted after such Record Date the shares of Common Stock issuable
upon such conversion over and above the shares of Common Stock issuable upon
such conversion on the basis of the Conversion Rate prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due bill or
other appropriate instrument evidencing such Holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.


 


75

















 


(k)                                  All
calculations under this Section 9.7 shall be made to the nearest cent or
one-hundredth of a share, with one-half cent and 0.005 of a share,
respectively, being rounded upward. 
Notwith-standing any other provision of this Section 9.7, the
Company shall not be required to make any adjustment of the Conversion Rate
unless such adjustment would require an increase or decrease of at least 1% of
such rate; provided that the Company shall carry forward any adjustments that
are less than 1% of the Conversion Rate in effect and make such carried forward
adjustments, regardless of whether the aggregate adjustment is less than 1%,
within one year of the first such adjustment carried forward.  Any adjustments under this Section 9.7
shall be made successively whenever an event requiring such an adjustment
occurs.


 


(l)                                     In
the event that at any time, as a result of an adjustment made pursuant to this
Section 9.7, the Holder of any Securities thereafter surrendered for
conversion shall become entitled to receive any shares of stock of the Company
other than shares of Common Stock into which the Securities originally were
convertible, the Conversion Rate of such other shares so receivable upon
conversion of any such Security shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in subparagraphs (a) through
(k) of this Section 9.7, and the provision of Sections 9.1 through 9.6 and
9.8 through 9.12 with respect to the Common Stock shall apply on like or
similar terms to any such other shares and the determination of the Board of
Directors as to any such adjustment shall be conclusive.


 


(m)                               No
adjustment shall be made pursuant to this Section 9.7 (i) if the effect
thereof would be to reduce the Conversion Price below the par value (if any) of
the Common Stock or (ii) if the Holders of the Securities may participate,
without conversion, in the transaction that would otherwise give rise to an adjustment
pursuant to this Section 9.7.


 


Section 9.8                                      Consolidation
or Merger of the Company.  If any of
the following events occurs, namely:


 


(1)                                  any
reclassification or change of the outstanding 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);


 


(2)                                  any
merger, consolidation, statutory share exchange or combination of the Company
with another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock; or


 


(3)                                  any
sale or conveyance of all or substantially all of the properties and assets of
the Company to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock;


 


the Company or the successor or purchasing corporation, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that such Securities shall be convertible into the kind and


 


76

















 


amount of shares of stock and other securities or property or assets
(including cash) which such Holder would have been entitled to receive upon
such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Securities been converted into Common
Stock immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided, that if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised (“Non-Electing Share”), then for the purposes of
this Section 9.8, the kind and amount of securities, cash or other
property receivable upon such merger, consolidation, statutory share exchange,
sale or conveyance for each Non-Electing Share shall be deemed to be the kind
and amount so receivable per share by a plurality of the Non-Electing
Shares).  Such supplemental indenture
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 9.  If, in the case of any such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing, including to the
extent practicable the provisions providing for the conversion rights set forth
in this Article 9.


 


The Company
shall cause notice of the execution of such supplemental indenture to be mailed
to each Holder, at the address of such Holder as it appears on the register of
the Securities maintained by the Registrar, within 20 days after execution
thereof.  Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.


 


The above
provisions of this Section 9.8 shall similarly apply to successive
reclassifications, mergers, consolidations, statutory share exchanges,
combinations, sales and conveyances.


 


If this Section 9.8
applies to any event or occurrence, Section 9.7 shall not apply.


 


Section 9.9                                      Notice
of Adjustment.  Whenever an
adjustment in the Conversion Rate with respect to the Securities is required:


 


(1)                                  the
Company shall forthwith place on file with the Trustee and any Conversion Agent
for such securities a certificate of the Treasurer of the Company, stating the
adjusted Conversion Rate determined as provided herein and setting forth in
reasonable detail such facts as shall be necessary to show the reason for and
the manner of computing such adjustment; and


 


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(2)                                  a
notice stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate shall forthwith be given by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the
Company, to each Holder in the manner provided in Section 11.2.  Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.


 


In addition, whenever
an adjustment in the Conversion Rate with respect to the Securities is
required, the Company shall issue a press release through Dow Jones &
Company, Inc.,  Bloomberg Business News
or a similar newswire service containing the relevant information and make this
information available on the Company’s web site or through another public
medium as it may use at that time.


 


Section 9.10                                Notice
in Certain Events.  In case:


 


(1)                                  of
a consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or
conveyance to another Person or entity or group of Persons or entities acting
in concert as a partnership, limited partnership, syndicate or other group (within
the meaning of Rule 13d-3 under the Exchange Act) of all or substantially
all of the property and assets of the Company; or


 


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


 


(3)                                  of
any action triggering an adjustment of the Conversion Rate referred to in
clauses (x) or (y) below;


 


then, in each case, the Company shall cause to be filed with the
Trustee and the Conversion Agent, and shall cause to be given, to the Holders
of the Securities in the manner provided in Section 11.2, at least 15 days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of any distribution or
grant of rights or warrants triggering an adjustment to the Conversion Rate
pursuant to this Article 9, or, if a record is not to be taken, the date as of
which the holders of record of Common Stock entitled to such distribution,
rights or warrants are to be determined, or (y) the date on which any
reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding up triggering an adjustment to the Conversion Rate
pursuant to this Article 9 is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property deliverable
upon such reclassification, consolidation, merger sale, conveyance,
dissolution, liquidation or winding up.


 


Failure to give such notice or any
defect therein shall not affect the legality or validity of the proceedings
described in clause (1), (2) or (3) of this Section 9.10.


 


Section 9.11                                Taxes
on Conversion.  The issue of stock
certificates on conversion of Securities shall be made without charge to the
converting Holder for any documentary, stamp or similar issue or transfer taxes
in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be


 


78

















 


payable in respect of the
issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any such
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock or the portion, if any, of the Securities
which are not so converted in a name other than that in which the Securities so
converted were registered, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount
of such tax or has established to the satisfaction of the Company that such tax
has been paid.


 


Section 9.12                                Conversion
After Interest Payment Record Date. 
Except as provided below, if any Securities are surrendered for
conversion on any day other than an Interest Payment Date, the Holder of such
Securities shall not be entitled to receive any payment in cash in respect of
interest that has accrued on such Securities since the prior Interest Payment
Date.  By delivery to the Holder of the
number of shares of Common Stock issuable or cash payment, if any, in lieu of
fractional shares payable upon conversion in accordance with this Article 9,
any accrued and unpaid interest on such Securities will be deemed to have been
paid in full.


 


If any Securities are surrendered for conversion subsequent to the
Interest Payment Record Date preceding an Interest Payment Date but on or prior
to  such
Interest Payment Date, the Holder of such Securities at the close of business
on such Interest Payment Record Date shall receive the interest payable on such
Securities on such Interest Payment Date notwithstanding the conversion
thereof.  Securities surrendered for
conversion during the period from the close of business on any Interest Payment
Record Date preceding any Interest Payment Date to the opening of business on
such Interest Payment Date shall (except in the case of Securities which have
been called for redemption on a Redemption Date between such Interest Payment
Record Date and the third Business Day after such Interest Payment Date) be
accompanied by payment by Holders, for the account of the Company, in New York
Clearing House funds or other funds of an amount equal to the interest payable
on such Interest Payment Date on the Securities being surrendered for
conversion.  Except  as provided in this
Section 9.12, no adjustments in respect of payments of interest on
Securities surrendered for conversion or  any dividends or distributions or
interest on the Common Stock issued upon conversion shall be made upon the
conversion of any Securities.


 


Section 9.13                                Company
Determination Final.  The Company
shall be responsible for making all calculations called for under this
Security. These calculations include, but are not limited to, determinations of
accrued interest, including Additional Interest and Additional Amounts, if any,
the Conversion Price, the Repurchase Price, the Redemption Price, the Sale
Price of the Company’s Common Stock and other calculations related to a
Holder’s conversion rights. The Company or its agents shall make these
calculations in good faith and, absent manifest error, the calculations will be
final and binding on any Holder of this Security. The Company will provide a
schedule of its calculations to each of the Trustee and the Conversion Agent,
and each of the Trustee and the Conversion Agent is entitled to conclusively
rely upon the accuracy of such calculations without independent verification.
The Trustee may forward the Company’s calculations to any Holder of this
Security upon request. The settlement amount of cash and the number of shares
of Common Stock, which shall be deliverable upon conversion pursuant to
Sections 9.3 and 9.4, shall be computed by the Company.


 


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The Company shall cause to be filed with the Trustee and the Conversion
Agent, at least one Business Day prior to the applicable settlement date
specified under Sections 9.3 and 9.4, a written notice stating such settlement
amount and number of shares of Common Stock. Any determination that the Company
or the Board of Directors must make pursuant to this Article 9 shall be
conclusive if made in good faith and in accordance with the provisions of this
Article 9, absent manifest error, and set forth in a Board Resolution delivered
to the Trustee and the Conversion Agent.


 


Section 9.14                                Responsibility
of Trustee for Conversion Provisions. 
The Trustee has no duty to determine when an adjustment under this
Article 9 should be made, how it should be made or what it should be.  The Trustee makes no representation as to
the validity or value of any securities or assets issued upon conversion of
Securities.  The Trustee shall not be
responsible for any failure of the Company to comply with this Article 9 or any
duty to monitor the Company’s compliance. 
Each Conversion Agent other than the Company shall have the same
protection under this Section 9.14 as the Trustee.


 


The rights, privileges, protections, immunities and benefits given to
the Trustee under the Indenture
including, without limitation, its rights to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each Paying Agent or Conversion Agent acting hereunder.


 


Section 9.15                                Unconditional
Right of Holders to Convert. 
Notwithstanding any other provision in this Indenture, the Holder shall
have the right, which is absolute and unconditional, to convert its Security in
accordance with this Article 9 and to bring an action for the enforcement of
any such right to convert, and such rights shall not be impaired or affected
without the consent of such Holder.


 


ARTICLE X


 


SUBORDINATION OF THE SECURITIES


 


Section 10.1                                Agreement
to Subordinate.  The Company agrees,
and each Holder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full, in cash
or Cash Equivalents, of all Senior Indebtedness of the Company (in each case,
whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed and including, without limitation, Senior Indebtedness of the
Company created, incurred, assumed or guaranteed during the pendency of any
bankruptcy or other insolvency proceeding of the Company) and that the
subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness.  Only Senior
Indebtedness of the Company shall rank senior to the Securities in accordance
with the provisions set forth herein. 
The Securities shall in all respects rank pari passu with the
Company’s future Indebtedness that shall provide that such Indebtedness is on a
parity with the Securities and be senior to any existing and future
Indebtedness of the Company that shall provide that such Indebtedness is
subordinated in right of payment to the Securities. All provisions of this
Article 10 shall be subject to Section 10.12.


 


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Section 10.2                                Liquidation,
Dissolution, Bankruptcy.  Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or dissolution of the Company, in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property, in an
assignment by the Company for the benefit of its creditors or any marshaling of the assets and liabilities of
the Company:


 


(1)                                  holders
of Senior Indebtedness of the Company shall be entitled to receive payment in
full in cash of all obligations due in respect thereof (including interest
accruing after the commencement of any such proceeding at the rate specified in
the instrument evidencing such Senior Indebtedness, whether or not a claim
therefore is allowed in any such proceeding, to the date of payment of such
Senior Indebtedness) before Holders shall be entitled to receive any payment of
principal of, premium, if any, or interest (including Additional Interest and
Additional Amounts, if any) on the Securities; and


 


(2)                                  until
such Senior Indebtedness is paid in full in cash or Cash Equivalents, any
distribution to which Holders would be entitled but for this Article 10
shall be made to holders of such Senior Indebtedness as their interests may
appear.


 


To the extent any payment of principal of, premium, if any, or interest
on any Senior Indebtedness of the Company (whether by or on behalf of the
Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or similar Person, such Senior Indebtedness or part thereof intended to be
satisfied shall be deemed reinstated and outstanding, as if such payment had
not occurred.


 


Section 10.3                                Default
on Designated Senior Indebtedness of the Company.


 


(a)                                  The
Company may not pay the principal of, premium, if any, or interest (including
Additional Interest and Additional Amounts, if any) on the Securities and may
not repurchase, redeem or otherwise retire any Securities (collectively, “pay
the Securities”), if:


 


(1)                                  a
default in the payment when due of the principal of, premium, if any, or
interest (including additional amounts) on or any other amount in respect of
any Designated Senior Indebtedness of the Company (a “Payment Default”) occurs
and is continuing beyond any applicable grace period; or


 


(2)                                  any
default that is not a Payment Default (a “Nonpayment Default”) occurs and is
continuing with respect to any Designated Senior Indebtedness of the Company
that permits the holders thereof to accelerate its maturity and the Trustee
receives a notice of that default (a “Payment Blockage Notice”) from the
Company or the holders of such Designated Senior Indebtedness.


 


(b)                                 Payments
on the Securities may and shall be resumed:


 


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(1)                                  in
the case of a Payment Default, upon the date on which it is cured or waived;
and


 


(2)                                  in
case of a Nonpayment Default, the earlier of the date on which it is cured or
waived or 179 days after the date on which such Payment Blockage Notice is
received by the Trustee (a “Payment Blockage Period”), unless the maturity of
the relevant Designated Senior Indebtedness of the Company has been
accelerated, if this Article 10 otherwise permits the payment.


 


(c)                                  Notwithstanding
the foregoing to the contrary,


 


(1)                                  In
no event shall a Payment Blockage Period extend beyond 179 days from the date
the Payment Blockage Notice in respect thereof was given,


 


(2)                                  there
shall be a period of at least 181 consecutive days in each 360-day period when
no Payment Blockage Period is in effect, and


 


(3)                                  not
more than one Payment Blockage Period may be commenced with respect to the
Notes during any period of 360 consecutive days.


 


(d)                                 No
Nonpayment Default that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the basis for
a subsequent Payment Blockage Notice unless that default shall have been cured
or waived for a period of not less than 90 days.


 


Section 10.4                                Acceleration
of Payment of Securities.  If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify the holders of the Senior Indebtedness of the
Company (or their representative) of the acceleration.


 


Section 10.5                                When
Distribution Must Be Paid Over.  If
a payment or distribution is made to the Trustee or Holders that because of
this Article 10 should not have been made to them and the Trustee or the
Holders, as the case may be, has actual knowledge that the payment is
prohibited, the Trustee or the Holders, as the case may be, who receive the
payment or distribution shall hold it in trust for holders of Senior
Indebtedness of the Company and, upon the proper written request, pay it over
promptly to them as their interests may appear.


 


Section 10.6                                Subrogation.  After all Senior Indebtedness of the Company
is paid in full in cash or Cash Equivalents and until the Securities are paid
in full in cash or Cash Equivalents, Holders shall be subrogated to the rights
of holders of such Senior Indebtedness to receive distributions applicable to
such Senior Indebtedness. A distribution made under this Article 10 to holders
of such Senior Indebtedness which otherwise would have been made to Holders is
not, as between the Company and Holders, a payment by the Company on such
Senior Indebtedness.  In no event,
however, shall Holders have any rights or claims against the holders of any
Senior Indebtedness of the Company for any alleged impairment of Holders’
subrogation rights, and each Holder, by accepting a Security, acknowledges that
any actions taken by the holders of any Senior Indebtedness of the Company with
respect to such Senior Indebtedness or any security therefore are authorized
and consented to by Holders.


 


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Section 10.7                                Relative
Rights.  This Article 10 defines the
relative rights of Holders and holders of Senior Indebtedness of the Company.  Nothing in this Indenture shall:


 


(1)                                  impair,
as between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay its obligations in respect of this Indenture
and the Securities in accordance with their terms; or


 


(2)                                  prevent
the Trustee or any Holder from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness of the Company
to receive distributions otherwise payable to Holders as provided in this
Article 10.


 


Section 10.8                                Subordination
May Not Be Impaired.  No right of
any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by any such holder or by any noncompliance by the Company with
this Indenture, regardless of any knowledge thereof any such holder may have or
otherwise be charged with.


 


Section 10.9                                Rights
of Trustee and Paying Agent.


 


(a)                                  Notwithstanding
the provisions of Section 10.3, the Trustee or Paying Agent may continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than three Business Days prior to the date of such payment, a
Responsible Officer receives notice reasonably satisfactory to it that payments
may not be made in accordance with the provisions of this Article 10.  The Company, a representative or a holder of
Senior Indebtedness may give the notice; provided, however, that, if the
holders of an issue of Senior Indebtedness of the Company have a
representative, only the representative may give the notice.


 


(b)                                 The
Trustee in its individual or any other capacity may hold Senior Indebtedness of
the Company with the same rights it would have if it were not Trustee.  The Registrar and co-registrar and the
Paying Agent may do the same with like rights. 
The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness of the Company which may at
any time be held by it, to the same extent as any other holder of such Senior
Indebtedness, and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.


 


(c)                                  With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article 10 and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.


 


Section 10.10                          Distribution
or Notice to Representative. 
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness of the Company, the distribution may be made and the notice
given to their representative (if any).


 


Section 10.11                          Not
to Prevent Events of Default or Limit Right to Accelerate.  The failure to make a payment pursuant to
the Securities by reason of any provision in this


 


83

















 


Article 10 shall not be
construed as preventing the occurrence of a Default. Nothing in this Article 10
shall have any effect on the right of the Holders or the Trustee to accelerate
the maturity of the Securities.  The
Company shall give prompt written notice to the Trustee of any fact known to
the Company which would prohibit the making of any payment to or by the Trustee
in respect of the Securities.


 


Section 10.12                          Trustee
Entitled to Rely.  Upon any payment
or distribution pursuant to this Article 10, the Trustee and the Holders shall
be entitled to conclusively rely (i) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 10.2 are pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders or (iii) upon the representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Senior Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 10.  In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of Senior
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.  The provisions of Sections 7.1
and 7.2 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.


 


Section 10.13                          Trustee
to Effectuate Subordination.  Each
Holder by accepting a Security authorizes and directs the Trustee on such
Holder’s behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and the holders
of Senior Indebtedness of the Company as provided in this Article 10 and
appoints the Trustee as attorney-in-fact for any and all such purposes.


 


Section 10.14                          Trustee
Not Fiduciary for Holders of Senior Indebtedness.  The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
it shall, in contravention of this Indenture, pay over or distribute to Holders
or the Company or any other Person, money or assets to which any holders of
Senior Indebtedness of the Company shall be entitled by virtue of this Article
10 or otherwise; provided, however, that nothing herein shall limit the
Trustee’s liability for any such payment or distribution which results from the
Trustee’s negligence or willful misconduct.


 


Section 10.15                          Reliance
by Holders of Senior Indebtedness on Subordination Provisions.  Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and
continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness


 


84

















 


shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness.


 


Section 10.16                          Amendments.  The provisions of this Article 10 shall not
be amended or modified without the written consent of the holders of all Senior
Indebtedness of the Company.


 


ARTICLE XI


 


MISCELLANEOUS


 


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


 


Section 11.2                                Notices.  Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:


 


if to the Company:


 


Fleetwood
Enterprises, Inc.

3125 Myers Street

Riverside, CA 92503

Attn: General Counsel

Facsimile No.: 909-351-3776


 


if to the Trustee:


 


The Bank of New
York

101 Barclay Street – Floor 8W

New York, New York 10286

Facsimile No.:  212-815-5707

Attention:  Corporate Trust
Administration


 


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


 


Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.


 


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 is mailed in the manner provided above, it is duly given, whether
or not received by the addressee.


 


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If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent,
Conversion Agent or co-registrar.


 


Section 11.3                                Communication
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, the Paying Agent, the Conversion Agent and anyone else shall
have the protection of TIA Section 312(c).


 


Section 11.4                                Certificate
and Opinion as to Conditions Precedent. 
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:


 


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


 


(2)                                  an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.


 


Section 11.5                                Statements
Required in Certificate or Opinion. 
Each Officers’ Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:


 


(1)                                  a
statement that each Person making such Officers’ Certificate or Opinion of
Counsel 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 Officers’ Certificate
or Opinion of Counsel are based;


 


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


 


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


 


Section 11.6                                Separability
Clause.  In case any provision 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.


 


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


 


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Section 11.8                                Legal
Holidays.  A “Legal Holiday” is any
day other than a Business Day. If any specified date (including a date for
giving notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken on
such date is a payment in respect of the Securities, no interest, if any, shall
accrue for the intervening period.


 


Section 11.9                                GOVERNING
LAW; WAIVER OF JURY TRIAL.  THIS
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


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


 


Section 11.10                          No
Recourse Against Others.  A director,
officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.


 


Section 11.11                          Successors.  All agreements of the Company in this
Indenture and the Securities shall bind its successor.  All agreements of the Trustee in this
Indenture shall bind its successor.


 


Section 11.12                          Multiple
Originals.  The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.  One signed copy is enough to prove this Indenture.


 


Section 11.13                          Effect
of Headings and Table of Contents. 
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.


 


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IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.


 


	
   

  	
  FLEETWOOD
  ENTERPRISES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward B.
  Caudill

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Edward B.
  Caudill

  
	
   

  	
   

  	
  Title:

  	
  President and
  Chief Executive

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK

  
	
   

  	
   

  	
  As Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s Remo J. Reale

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Remo J. Reale

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


88

















 


EXHIBIT A


 


[FORM OF FACE OF
GLOBAL SECURITY]


 


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


 


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


 


THIS SECURITY EVIDENCED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:


 


(1)          REPRESENTS
THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT;


 


(2)          AGREES
THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT, IF AVAILABLE, (E) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or (4) OF REGULATION D
UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM


 


A-1

















 


REGISTRATION UNDER THE SECURITIES ACT, IF AVAILABLE,
SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH TRANSFER, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS
THAN $250,000, TO REQUIRE THE DELIVERY OF A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY AND AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT; OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND


 


(3)          AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.


 


A-2

















 


FLEETWOOD ENTERPRISES, INC.


 


5.00% Convertible Senior
Subordinated Notes due 2023


 


 


	
  No. : R-1

  	
   

  	
  CUSIP:   [     ]

  
	
   

  	
   

  	
  ISIN:      [     ]

  
	
  Issue
  Date:  [     ]

  	
   

  	
  Principal
  Amount:  [     ]

  



 


FLEETWOOD ENTERPRISES, INC., a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the principal amount of
[     ] ($[      ]) on
December 15, 2023.


 


Interest Payment Dates:  June 15
and December 15, commencing June 15, 2004.


 


Interest Payment Record Dates: 
May 31 and November 30.


 


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.


 


A-3

















 


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


 


	
   

  	
  FLEETWOOD ENTERPRISES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.


 


	
  By:

  	
   

  	
   

  
	
  Authorized
  Signatory

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:  [     ]

  	
   

  



 


A-4

















 


[FORM OF REVERSE OF GLOBAL SECURITY]


 


5.00% Convertible Senior Subordinated Notes due 2023


 


This Security is one of a duly authorized issue of the 5.00%
Convertible Senior Subordinated Notes due 2023 (the “Securities”) of Fleetwood
Enterprises, Inc., a Delaware corporation (including any successor corporation
under the Indenture hereinafter referred to, the “Company”), issued under an
Indenture, dated as of December 22, 2003 (as it may be amended from time to
time in accordance with the terms thereof, the “Indenture”), between the
Company and The Bank of New York, 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, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the Indenture
shall control.  Capitalized terms used
but not defined herein have the meanings assigned to them in the Indenture
unless otherwise indicated.


 


1.               Status.


 


Each Holder by accepting a Security agrees that the
payment of principal of, premium, if any, and interest (including Additional
Interest and Additional Amounts, if any) on each Security is subordinated in
right of payment to the extent and in the manner provided in Article 10 of the
Indenture, to the prior payment in full in cash or Cash Equivalents of the
Senior Indebtedness of the Company (whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed), and the
subordination is for the benefit of the holders of such Senior Indebtedness.


 


2.               Payment
of Principal and Interest.


 


The Company promises to pay interest on the principal
amount of the Securities at the interest rate of 5.00% per annum (the “Interest
Rate”) from the date of issuance until repayment in full at December 15, 2023,
or until an earlier conversion, redemption or repurchase.  The Company will pay interest (including
Additional Interest and Additional Amounts, if any) on this Security
semi-annually in arrears on June 15 and December 15 of each year (each, an
“Interest Payment Date”), commencing June 15, 2004.  Interest (including Additional Interest and Additional Amounts,
if any) on the Securities shall be paid to the Holder in whose name this
Security (or a predecessor Security) is registered at the close of business on
the Interest Payment Record Date (whether or not a Business Day) preceding an
Interest Payment Date, except (a) that interest payable on the Stated
Maturity shall be payable to the Holder to whom the principal is payable,
(b) Default Interest (as defined below) shall be payable as set forth in
the Indenture and (c) as otherwise specified herein or in the
Indenture.  If the Stated Maturity or an
Interest Payment Date falls on a day that is not a Business Day, the payment
due at the Stated Maturity or on such Interest Payment Date will be made on the
following day that is a Business Day as if it were made on the date such
payment was due and no interest shall accrue on the amount so payable for the
period from and after such Stated Maturity or Interest Payment Date, as the
case may be.


 


A-5

















 


Interest on the Securities shall be computed (i) for
any full semi-annual period for which a particular Interest Rate is applicable,
on the basis of a 360-day year of twelve 30-day months and (ii) for any period
for which a particular Interest Rate is applicable for less than a full
semi-annual period for which interest is calculated, on the basis of a 30-day
month and, for such periods of less than a month, the actual number of days
elapsed over a 30-day month.


 


If this Security is redeemed or repurchased by the
Company on a date that is after the Interest Payment Record Date and prior to
the corresponding Interest Payment Date, interest (including Additional
Interest and Additional Amounts, if any) accrued and unpaid hereon to but not
including the applicable Redemption Date or Repurchase Date, as the case may
be, will be paid to the same Holder to whom the Company pays the principal of
this Security.


 


Interest on Securities converted after an Interest
Payment Record Date but prior to the corresponding Interest Payment Date will
be paid to the Holder on the Interest Payment Record Date but, upon conversion,
the Holder at the time of conversion must pay the Company the interest
(including Additional Interest and Additional Amounts, if any) which has
accrued and will be paid on such Interest Payment Date; provided, that
no such payment need be made with respect to Securities to be redeemed by the
Company after an Interest Payment Record Date and prior to the third Business
Day after the corresponding Interest Payment Date.


 


If the principal amount hereof or any portion of such
principal amount or any interest (including Additional Interest and Additional
Amounts, if any) on any Security is not paid when due (whether upon
acceleration pursuant to Section 6.2 of the Indenture, upon the date set
for payment of the Redemption Price pursuant to Section 6 hereof or the
Repurchase Price pursuant to Section 7 hereof or upon the Stated Maturity
of this Security), then in each such case the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and, to the extent such payments are lawful, interest on
overdue installments of interest (“Defaulted Interest”) without regard to any
applicable grace periods, as provided in the Indenture.  Such Defaulted Interest shall be compounded
semi-annually, which interest shall accrue from the date on which such overdue
amount was originally due to the date of payment of such amount, including
interest thereon, has been made or duly provided for.


 


3.               Method
of Payment.


 


Except as provided below, interest will be paid (i) on
the Global Securities to The Depository Trust Company (“DTC”) or its nominee in
immediately available funds, (ii) on any definitive Securities having an
aggregate principal amount of $5,000,000 or less, by check mailed to the
Holders of such Securities; and (iii) on any definitive Securities having an
aggregate principal amount of more than $5,000,000, by wire transfer in immediately
available funds at the election of the Holders of such Securities.  Holders of such Securities requesting
payment by wire transfer must provide the Trustee with wire transfer
instructions at least 15 days prior to the relevant payment date.


 


At Stated Maturity, the Company will pay interest on
definitive Securities at the Company’s office or agency in New York City, which
initially will be the Corporate Trust Office of the Trustee in New York City.


 


A-6

















 


Principal on Global Securities will be paid to DTC or
its nominee in immediately available funds. 
Principal on definitive Securities will be payable, upon Stated Maturity
or when due, at the office or agency of the Company in New York City,
maintained for such purpose, initially the Corporate Trust Office of the
Trustee in New York City.


 


Subject to the terms and conditions of the Indenture,
the Company will make payments in cash (or, if applicable, in shares of Common
Stock or a combination of cash and Common Stock) in respect of Redemption
Prices, Repurchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. The Company will pay cash amounts in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Company may make such cash payments by check payable in
such money, as described herein.


 


4.               Paying
Agent, Conversion Agent and Registrar.


 


Initially, The Bank of New York will act as Paying
Agent, Conversion Agent and Registrar. The Company may appoint and change any
Paying Agent, Conversion Agent or Registrar without notice, other than notice
to the Trustee; provided that the Company will maintain at least one Paying
Agent in the State of New York, City of New York, Borough of Manhattan, which
shall initially be an office or agency of the Trustee. The Company or any of
its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent or Registrar.


 


5.               Indenture.


 


The Securities are unsecured senior subordinated
obligations of the Company limited to $[      ]
aggregate principal amount.  The
Indenture does not limit the Company from incurring other indebtedness, secured
or unsecured.


 


6.               Redemption
at the Option of the Company.


 


No sinking fund is provided for the Securities. The
Securities are not redeemable by the Company prior to December 15, 2008.  The Securities are redeemable for cash at
the option of the Company, in whole or in part, at any time or from time to
time, on or after December 15, 2008 upon not less than 20 nor more than 60
days’ notice (the “Redemption Notice”) by mail for a Redemption Price equal to
100% of the principal amount of those Securities to be redeemed (the “Redemption
Price”), plus accrued and unpaid interest (including Additional Interest and
Additional Amounts, if any) thereon up to, but excluding, the Redemption
Date.   If the Redemption Date is an
Interest Payment Date, accrued and unpaid interest will instead be paid to the
Holder in whose name this Security (or a predecessor Security) is registered at
the close of business on the respective Interest Payment Record Date.


 


If money sufficient to pay the Redemption Price of all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, interest
will cease to accrue on such Securities (or portions thereof) immediately after
such Redemption Date, and the Holders thereof shall have no other rights as
such other than the right to receive the Redemption Price upon surrender of
such Securities.  Securities in
denominations larger than $1,000 of principal amount may be redeemed in part
but only in integral multiples of $1,000 of principal amount.


 


A-7

















 


7.               Repurchase
By the Company at the Option of the Holder.


 


Optional Repurchase Right.  On December 15, 2008, December 15, 2013 and
December 15, 2018, each Holder shall have the right at the Holder’s option, to
require the Company to repurchase, and upon the exercise of such right the
Company shall repurchase, all of such Holder’s Securities, or any portion of
the principal amount thereof that is equal to any integral multiple of $1,000
(provided that no single Security may be repurchased in part unless the portion
of the principal amount of such Security to be outstanding after such
repurchase is equal to an integral multiple of $1,000), at a repurchase price
(the “Optional Repurchase Price”) equal to 100% of the principal amount of the
Securities to be repurchased plus interest (including Additional Interest and
Additional Amounts, if any) accrued and unpaid to, but excluding, the Optional
Repurchase Date.  The Optional
Repurchase Price may be paid, at the option of the Company, in cash or by the
delivery of Common Stock, or any combination thereof, in the manner described
in Section 3.7(a) of the Indenture.


 


Repurchase Right Upon a Change of Control.  At the option of the Holder and subject to the
terms and conditions of the Indenture, the Company shall become obligated to
offer to repurchase the Securities held by such Holder within 20 Business Days
after the occurrence of a Change of Control of the Company for a Change of
Control Repurchase Price equal to the principal amount of those Securities plus
accrued and unpaid interest (including Additional Interest and Additional
Amounts, if any) thereon up to, but excluding, the Change of Control Repurchase
Date.  The Change of Control Repurchase
Date shall be within 25 Business Days of the Company’s delivery of the notice
described in the preceding sentence, which shall be delivered to all Holders
and the Trustee. The Change of Control Repurchase Price shall be paid in cash.


 


Holders have the right to withdraw any Repurchase
Notice, as the case may be, by delivering to the Paying Agent a written notice
of withdrawal in accordance with the provisions of the Indenture.


 


If money or Common Stock, if permitted hereunder,
sufficient to pay the Repurchase Price of all Securities or portions thereof to
be repurchased as of the Repurchase Date, is deposited with the Paying Agent
prior to or on the Repurchase Date, interest will cease to accrue on such
Securities (or portions thereof) immediately after such Repurchase Date, and
the Holders thereof shall have no other rights as such other than the right to
receive the Repurchase Price upon surrender of such Security.


 


8.               Conversion.


 


Subject to and in compliance with the provisions of the Indenture, a
Holder is entitled, at such Holder’s option, to convert the Holder’s Security
(or any portion of the principal amount thereof that is $1,000 or an integral
multiple $1,000), into fully paid and nonassessable shares of Common Stock at
the Conversion Rate in effect at the time of conversion, as follows:


 


(i)                                     during
any fiscal quarter if the Sale Price of the Common Stock for at least 20
consecutive Trading Days in the 30-Trading-Day period ending on the


 


A-8

















 


last Trading Day
of the preceding fiscal quarter is greater than or equal to 120% of the
Conversion Price on the last Trading Day of such fiscal quarter;


 


(ii)                                  during
the five-consecutive-Business-Day period immediately following a
five-consecutive-Trading-Day period in which the Sale Price per $1,000
principal amount of Securities for each day of such
five-consecutive-Trading-Day period was less than [       ]% of the Conversion Value; provided that the Securities
shall not be convertible pursuant to this Section 9.1(b)(2) after December 15,
2021 if on any Trading Day during such five-Trading-Day period the Sale Price
of the Common Stock is between [      
]% and [       ]% of the
then-current Conversion Price;


 


(iii)                               at
any time prior to the close of business on the second Business Day preceding
the date fixed for redemption, if such Security has been called for redemption
pursuant to the terms of the Indenture; or


 


(iv)                              in
the event of certain corporate transactions as provided in the Indenture;


 


provided, however, that
the conversion rights described above are subject to: (A) prior to the
Stockholder Approval, the Company’s obligation to pay cash in lieu of issuing
Common Stock as described further in the Indenture and (B) after the
Stockholder Approval, the Company’s right to pay in cash, Common Stock or a
combination of cash and Common Stock as further described in the Indenture.


 


A Security in respect of which a Holder has delivered
a Repurchase Notice, exercising the option of such Holder to require the
Company to purchase such Security, may be converted only if such Repurchase
Notice is withdrawn in accordance with the terms of the Indenture.


 


The initial Conversion Rate is
[         ] shares per $1,000 of
principal amount of Securities, subject to adjustment in certain events set
forth in the Indenture.  No fractional
shares of Common Stock shall be issued upon conversion of any Security.  Instead of any fractional share of Common
Stock that would otherwise be issued upon conversion of such Security, the
Company shall pay a cash adjustment as provided in the Indenture.


 


To surrender a Certificated Security for conversion, a
Holder must (1) complete and manually sign the conversion notice below (or
complete and manually sign a facsimile of such notice) and deliver such notice
to the Conversion Agent, (2) surrender the Security to the Conversion Agent,
(3) furnish appropriate endorsements and transfer documents and (4) pay any
transfer or similar tax, if required by the Indenture.  Interests in a Global Security may be converted by delivering to DTC
the appropriate instruction form for conversion pursuant to DTC’s conversion
program.


 


If the Company (i) is a party to a consolidation,
merger or binding share exchange, (ii) reclassifies the Common Stock or (iii)
conveys, transfers or leases its properties and assets substantially as an
entirety to any Person, the right to convert a Security into shares of Common
Stock will be changed into a right to convert it into the securities, cash or
other assets of the


 


A-9

















 


Company or such other
Person a Holder would have received had such Holder converted immediately prior
to any of the foregoing events, in each case in accordance with the Indenture.


 


9.               Denominations;
Transfer; Exchange.


 


The Securities are in fully registered form, without
coupons, in denominations of $1,000 of principal amount and integral multiples
of $1,000.  A Holder may transfer or
exchange 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
and fees required by law or permitted by the Indenture.  The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Repurchase Notice has been given and not
withdrawn (except, in the case of a Security to be purchased in part, the portion
of the Security not to be purchased) or any Securities for a period of 15 days
before the mailing of a Redemption Notice of Securities to be redeemed.


 


10.         Persons
Deemed Owners.


 


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


 


11.         Unclaimed
Money or Securities.


 


The Trustee and the Paying Agent shall return to the
Company upon written request any money or shares of Common Stock 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 money or securities must look to the Company for payment as
general creditors unless an applicable abandoned property law designates
another Person.


 


12.         Amendment;
Waiver.


 


Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with the written
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities and (ii) certain Defaults may be waived with the
written consent of the Holders of a majority in aggregate principal amount of
the outstanding Securities.  The
Indenture and the Securities may also be amended by the Company and the
Trustee, without the consent of any Holder, in certain circumstances set forth
in the Indenture; provided, that certain provisions of the Indenture and the
Securities may not be amended without the consent of each affected Holder.


 


A-10

















 


13.         Defaults
and Remedies.


 


If any Event of Default with respect to Securities
shall occur and be continuing, the principal of all the Securities may be
declared due and payable in the manner and with the effect 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 Trustee.


 


15.         No
Recourse Against Others.


 


A director, officer, employee or shareholder, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation.


 


16.         Authentication.


 


This Security shall not be valid until an authorized
signatory of the Trustee manually signs the Trustee’s Certificate of
Authentication on the other side of this Security.


 


17.         Abbreviations.


 


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


 


18.         GOVERNING
LAW; WAIVER OF JURY TRIAL.


 


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


 


EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
INDENTURE, THIS NOTE OR THE TRANSACTION CONTEMPLATED THEREBY.


 


The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture. Requests may be
made to:  Fleetwood Enterprises, Inc.,
3125 Myers Street, Riverside, CA  92503,
Attn.:  General Counsel, Facsimile
No.:  909-351-3776.


 


A-11

















 


19.         Additional
Interest.


 


Subject to the terms of the Indenture, the Securities
shall accrue Additional Interest if the Company fails to amend the Restated
Certificate of Incorporation to increase its authorized capital as provided in
Section 9.6 of the Indenture. 
Additional Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months and will be paid on Interest Payment Dates to
the Person whose name the Security is registered at the close of business on
the Interest Payment Record Date.


 


20.         Registration
Rights and Additional Amounts.


 


The Holders of the Securities are entitled to the
benefits of a Registration Rights Agreement, dated as of December 22, 2003,
between the Company and Lehman Brothers Inc., including the receipt of
Additional Amounts upon a registration default (as defined in such agreement).


 


21.         Calculations.


 


The Company shall be responsible for making all
calculations called for under this Security. These calculations include, but
are not limited to, determinations of accrued interest, including Additional
Interest and Additional Amounts, if any, the Conversion Price, the Repurchase
Price, the Redemption Price, the Sale Price of the Company’s Common Stock and
other calculations related to a Holder’s conversion rights. The Company or its
agents shall make these calculations in good faith and, absent manifest error,
the calculations will be final and binding on any Holder of this Security. The
Company will provide a schedule of its calculations to each of the Trustee and
the Conversion Agent, and each of the Trustee and the Conversion Agent is
entitled to rely upon the accuracy of such calculations without independent
verification. The Trustee may forward the Company’s calculations to any Holder
of this Security upon request.


 


A-12

















 




	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign this
  Security, fill in the form below:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  I or we assign
  and transfer this Security to

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
  $                                                             

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  	
   

  
	
  and irrevocably
  appoint

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

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

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  






 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  
	
   

  	
   

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

  	
   

  
	
   

  
	
   

  
	
  Signature Guaranteed

  
	
   

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
											



 


A-13

















 


SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY


 


Initial Principal Amount of Global Security: One
Hundred Million Dollars ($100,000,000).


 


	
  Date

  	
   

  	
  Amount of

  Increase in

  Principal

  Amount of

  Global Security

  	
   

  	
  Amount of

  Decrease in

  Principal

  Amount of

  Global Security

  	
   

  	
  Principal

  Amount of

  Global Security

  After Increase or

  Decrease

  	
   

  	
  Notation
  by

  Registrar or

  Security

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  .

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-14

















 


EXHIBIT B


 


[FORM OF FACE OF CERTIFICATED SECURITY]


 


THIS SECURITY EVIDENCED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER:


 


(1)          REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT;


 


(2)          AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF
AVAILABLE, (E) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) or (4) OF REGULATION D UNDER THE
SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, IF AVAILABLE, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH TRANSFER, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF SECURITIES LESS THAN $250,000, TO REQUIRE THE DELIVERY OF A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS SECURITY AND AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT; OR (F) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND


 


(3)          AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.


 


B-1

















 


The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.


 


B-2

















 


FLEETWOOD ENTERPRISES, INC.


 


5.00% Convertible Senior Subordinated Notes due 2023


 


	
   

  	
  No. :

  	
   

  	
  CUSIP:   [     ]

  
	
   

  	
   

  	
   

  	
  ISIN:      [     ]

  
	
   

  	
  Issue
  Date:  [     ]

  	
   

  	
  Principal
  Amount:  $                 

  



 


FLEETWOOD ENTERPRISES, INC., a Delaware corporation, promises to pay to
                                          
or registered assigns, the principal amount of
[                       dollars
($                       )]
on December 15, 2023.


 


Interest Payment Dates:  June 15
and December 15, commencing June 15, 2004.


 


Interest Payment Record Dates: 
May 31 and November 30.


 


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.


 


IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.


 


	
   

  	
  FLEETWOOD
  ENTERPRISES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.


 


	
  By  

  	
   

  	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


B-3

















 


[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL
TO EXHIBIT A]


 


B-4

















 


EXHIBIT C


 


5.00% Convertible Senior Subordinated Notes due 2023


 


Transfer
Certificate


 


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


 


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


 


o                                    The
transfer of the Surrendered Securities is to a qualified institutional buyer as
defined and in all other respects in compliance with Rule 144A under the
Securities Act; or


 


o                                    The
transfer of the Surrendered Securities is to an institutional accredited
investor within the meaning of and all other respects in compliance with Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act; or


 


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


 


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


 


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


 


o                                    The
transferee is an Affiliate of the Company.


 


	
  DATE:

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


C-1

















 


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


 


	
  Signature Guarantee:

  
	
   

  
	
   

  	
   

  



Signature must be guaranteed by a participant in a recognized signature
guaranty medallion program or other signature guarantor acceptable to the
Trustee.


 


C-2