Exhibit 4.1


 


COMPUCREDIT CORPORATION


 


5.875 % Convertible Senior Notes Due 2035


 










 


INDENTURE


 


Dated as of November 23, 2005


 










 


WACHOVIA BANK, NATIONAL ASSOCIATION


 


TRUSTEE


 










 





















 


Cross-Reference
Table(1)


 


	
  Trust Indenture Act Section

  	
   

  	
   

  	
  Indenture Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  310

  	
   (a)(1)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   (a)(2)

  	
   

  	
  7.10

  	
   

  
	
   

  	
   (a)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (a)(4)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (a)(5)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (b)

  	
   

  	
  7.08, 7.10

  	
   

  
	
   

  	
   (c)

  	
   

  	
  N.A.

  	
   

  
	
  311

  	
   (a)

  	
   

  	
  7.11

  	
   

  
	
   

  	
   (b)

  	
   

  	
  7.11

  	
   

  
	
   

  	
   (c)

  	
   

  	
  N.A.

  	
   

  
	
  312

  	
   (a)

  	
   

  	
  2.05

  	
   

  
	
   

  	
   (b)

  	
   

  	
  12.03

  	
   

  
	
   

  	
   (c)

  	
   

  	
  12.03

  	
   

  
	
  313

  	
   (a)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   (b)(1)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   (b)(2)

  	
   

  	
  7.06

  	
   

  
	
   

  	
   (c)

  	
   

  	
  12.02

  	
   

  
	
   

  	
   (d)

  	
   

  	
  7.06

  	
   

  
	
  314

  	
   (a)

  	
   

  	
  4.02

  	
   

  
	
   

  	
   (b)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (c)(1)

  	
   

  	
  12.04

  	
   

  
	
   

  	
   (c)(2)

  	
   

  	
  12.04

  	
   

  
	
   

  	
   (c)(3)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (d)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (e)

  	
   

  	
  12.05

  	
   

  
	
   

  	
   (f)

  	
   

  	
  4.04

  	
   

  
	
  315

  	
   (a)

  	
   

  	
  7.01(a)

  	
   

  
	
   

  	
   (b)

  	
   

  	
  7.05

  	
   

  
	
   

  	
   (c)

  	
   

  	
  7.01

  	
   

  
	
   

  	
   (d)

  	
   

  	
  7.01(c)

  	
   

  
	
   

  	
   (e)

  	
   

  	
  6.11

  	
   

  
	
  316

  	
   (a)(1)(A)

  	
   

  	
  6.05

  	
   

  
	
   

  	
   (a)(1)(B)

  	
   

  	
  6.04

  	
   

  
	
   

  	
   (a)(2)

  	
   

  	
  N.A.

  	
   

  
	
   

  	
   (b)

  	
   

  	
  6.07

  	
   

  
	
   

  	
   (c)

  	
   

  	
  1.05(e)

  	
   

  
	
  317

  	
   (a)(1)

  	
   

  	
  6.08

  	
   

  
	
   

  	
   (a)(2)

  	
   

  	
  6.09

  	
   

  
	
   

  	
   (b)

  	
   

  	
  2.04

  	
   

  
	
  318

  	
   (a)

  	
   

  	
  12.01

  	
   

  
						



 










N.A. means not applicable.


 


(1)  This Cross-Reference Table is not part of the Indenture.


 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  Definitions and Incorporation by Reference

  	
   

  
	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  
	
  Section 1.02.

  	
  Other Definitions

  	
   

  
	
  Section 1.03.

  	
  Incorporation
  By Reference Of Trust Indenture Act

  	
   

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
   

  
	
  Section 1.05.

  	
  Acts of
  Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  The Securities

  	
   

  
	
   

  	
   

  
	
  Section 2.01.

  	
  Form and
  Dating

  	
   

  
	
  Section 2.02.

  	
  Execution
  and Authentication

  	
   

  
	
  Section 2.03.

  	
  Registrar,
  Paying Agent and Conversion Agent

  	
   

  
	
  Section 2.04.

  	
  Paying
  Agent to Hold Money and Securities in Trust

  	
   

  
	
  Section 2.05.

  	
  Securityholder
  Lists

  	
   

  
	
  Section 2.06.

  	
  Transfer
  and Exchange

  	
   

  
	
  Section 2.07.

  	
  Replacement
  Securities

  	
   

  
	
  Section 2.08.

  	
  Outstanding
  Securities; Determinations of Holders’ Action

  	
   

  
	
  Section 2.09.

  	
  Temporary
  Securities

  	
   

  
	
  Section 2.10.

  	
  Cancellation

  	
   

  
	
  Section 2.11.

  	
  Persons
  Deemed Owners

  	
   

  
	
  Section 2.12.

  	
  Global
  Securities

  	
   

  
	
  Section 2.13.

  	
  CUSIP
  Numbers

  	
   

  
	
  Section 2.14.

  	
  Contingent
  Debt Tax Treatment

  	
   

  
	
  Section 2.15.

  	
  Calculation
  of Tax Original Issue Discount

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  Redemption and Repurchases

  	
   

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Company’s
  Right to Redeem; Notices to Trustee

  	
   

  
	
  Section 3.02.

  	
  Selection
  of Securities to Be Redeemed

  	
   

  
	
  Section 3.03.

  	
  Notice of
  Redemption

  	
   

  
	
  Section 3.04.

  	
  Effect of
  Notice of Redemption

  	
   

  
	
  Section 3.05.

  	
  Deposit of
  Redemption Price

  	
   

  



 


i





















 


	
  Section 3.06.

  	
  Securities
  Redeemed in Part

  	
   

  
	
  Section 3.07.

  	
  [Reserved]

  	
   

  
	
  Section 3.08.

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

  	
   

  
	
  Section 3.09.

  	
  Effect of
  Fundamental Change Repurchase Notice

  	
   

  
	
  Section 3.10.

  	
  Deposit of
  Fundamental Change Repurchase Price

  	
   

  
	
  Section 3.11.

  	
  Securities
  Purchased in Part

  	
   

  
	
  Section 3.12.

  	
  Covenant to
  Comply with Securities Laws upon Purchase of Securities

  	
   

  
	
  Section 3.13.

  	
  Repayment
  to the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  Covenants

  	
   

  
	
   

  	
   

  
	
  Section 4.01.

  	
  Payment of
  Securities

  	
   

  
	
  Section 4.02.

  	
  SEC and
  Other Reports

  	
   

  
	
  Section 4.03.

  	
  Compliance
  Certificate

  	
   

  
	
  Section 4.04.

  	
  Further
  Instruments and Acts

  	
   

  
	
  Section 4.05.

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section 4.06.

  	
  Delivery of
  Certain Information

  	
   

  
	
  Section 4.07.

  	
  Liquidated
  Damages Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  Successor Person

  	
   

  
	
   

  	
   

  
	
  Section 5.01.

  	
  When
  Company May Merge or Transfer Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  Defaults and Remedies

  	
   

  
	
   

  	
   

  
	
  Section 6.01.

  	
  Events of
  Default

  	
   

  
	
  Section 6.02.

  	
  Acceleration

  	
   

  
	
  Section 6.03.

  	
  Other Remedies

  	
   

  
	
  Section 6.04.

  	
  Waiver of
  Past Defaults

  	
   

  
	
  Section 6.05.

  	
  Control by
  Majority

  	
   

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
   

  
	
  Section 6.07.

  	
  Rights of
  Holders to Receive Payment

  	
   

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
   

  



 


ii





















 


	
  Section 6.09.

  	
  Trustee May File
  Proofs of Claim

  	
   

  
	
  Section 6.10.

  	
  Priorities

  	
   

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
   

  
	
  Section 6.12.

  	
  Waiver of
  Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  Trustee

  	
   

  
	
   

  	
   

  
	
  Section 7.01.

  	
  Duties of Trustee

  	
   

  
	
  Section 7.02.

  	
  Rights of
  Trustee

  	
   

  
	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
   

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
   

  
	
  Section 7.05.

  	
  Notice of Defaults

  	
   

  
	
  Section 7.06.

  	
  Reports by
  Trustee to Holders

  	
   

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
   

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
   

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger

  	
   

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against the Company

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  Discharge of Indenture

  	
   

  
	
   

  	
   

  
	
  Section 8.01.

  	
  Discharge
  of Liability on Securities

  	
   

  
	
  Section 8.02.

  	
  Repayment
  to the Company

  	
   

  
	
  Section 8.03.

  	
  Application
  of Trust Money

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  Amendments

  	
   

  
	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of the Holders

  	
   

  
	
  Section 9.02.

  	
  With
  Consent of Holders

  	
   

  
	
  Section 9.03.

  	
  Compliance
  With Trust Indenture Act

  	
   

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents, Waivers and Actions

  	
   

  
	
  Section 9.05.

  	
  Notice of
  Amendments, Notation on or Exchange of Securities

  	
   

  
	
  Section 9.06.

  	
  Trustee to
  Sign Supplemental Indentures

  	
   

  
	
  Section 9.07.

  	
  Effect of
  Supplemental Indentures

  	
   

  



 


iii





















 


	
  ARTICLE 10

  Conversions

  	
   

  
	
   

  	
   

  
	
  Section 10.01.

  	
  Conversion
  Privilege

  	
   

  
	
  Section 10.02.

  	
  Conversion
  Procedure; Conversion Rate; Fractional Shares

  	
   

  
	
  Section 10.03.

  	
  Payment
  Upon Conversion

  	
   

  
	
  Section 10.04.

  	
  Adjustment
  of Conversion Rate

  	
   

  
	
  Section 10.05.

  	
  Effect of
  Reclassification, Consolidation, Merger or Sale

  	
   

  
	
  Section 10.06.

  	
  Taxes on Shares
  Issued

  	
   

  
	
  Section 10.07.

  	
  Reservation
  of Shares, Shares to Be Fully Paid; Compliance with Governmental
  Requirements; Listing of Common Stock

  	
   

  
	
  Section 10.08.

  	
  Responsibility
  of Trustee

  	
   

  
	
  Section 10.09.

  	
  Notice to Holders
  Prior to Certain Actions

  	
   

  
	
  Section 10.10.

  	
  Shareholder
  Rights Plan

  	
   

  
	
  Section 10.11.

  	
  Unconditional
  Right of Holders to Convert

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  Contingent Interest

  	
   

  
	
   

  	
   

  
	
  Section 11.01.

  	
  Contingent
  Interest

  	
   

  
	
  Section 11.02.

  	
  Payment of
  Contingent Interest

  	
   

  
	
  Section 11.03.

  	
  Contingent
  Interest Notification

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  Section 12.01.

  	
  Trust
  Indenture Act Controls

  	
   

  
	
  Section 12.02.

  	
  Notices

  	
   

  
	
  Section 12.03.

  	
  Communication
  by Holders with Other Holders

  	
   

  
	
  Section 12.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
   

  
	
  Section 12.05.

  	
  Statements
  Required in Certificate or Opinion

  	
   

  
	
  Section 12.06.

  	
  Separability
  Clause

  	
   

  
	
  Section 12.07.

  	
  Rules by
  Trustee, Paying Agent, Conversion Agent and Registrar

  	
   

  
	
  Section 12.08.

  	
  Legal
  Holiday

  	
   

  
	
  Section 12.09.

  	
  Governing
  Law

  	
   

  
	
  Section 12.10.

  	
  No Recourse
  Against Others

  	
   

  



 


iv





















 


	
  Section 12.11.

  	
  Successors

  	
   

  
	
  Section 12.12.

  	
  Multiple
  Originals

  	
   

  



 


	
  EXHIBIT A

  	
  Form of Global Security

  	
   

  
	
  EXHIBIT B

  	
  Form of Certificated Security

  	
   

  
	
  EXHIBIT C

  	
  Transfer Certificate

  	
   

  
	
  EXHIBIT D

  	
  Form of Notice of Redemption

  	
   

  
	
  EXHIBIT E

  	
  Notice of Occurrence of Fundamental Change

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I

  	
  Number of Additional Shares

  	
   

  



 


INDENTURE dated as of November 23, 2005 between COMPUCREDIT
CORPORATION, a Georgia corporation (the “Company”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association (“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
5.875 % Convertible Senior Notes Due 2035:


 


ARTICLE 1

Definitions and Incorporation by Reference


 


Section 1.01.                             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.


 


“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.


 


v





















 


“Bid Solicitation Agent”
means the agent of the Company appointed to obtain quotations for the
Securities as set forth under the definition of Trading Price, which such agent
shall be appointed no later than the first Contingent Interest Period and shall
at no time be an Affiliate of the Company.  The Company may, from time to time, change the
Bid Solicitation Agent.


 


“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, with respect to any Security, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York or Atlanta, Georgia.


 


“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.


 


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


 


“Change of Control”
means the occurrence at such time after the original issuance of the Securities
when any of the following has occurred:


 


(1)                                  a
“person” or “group” within the meaning of Section 13(d)(3) of
the Exchange Act, other than David G. Hanna or Frank J. Hanna, III or
entities controlled by them or established for the benefit of them or their
descendants or spouses of either or charities, or the Company’s or any
Subsidiary’s employee benefit plans (each, a “Permitted
Owner”), files a Schedule TO or any schedule, form or report
under the Exchange Act disclosing that such person or group has become the
direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the
Exchange Act, of shares of Common Stock representing more than 50% of the
Company’s Voting Stock; or


 


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


 


(3)                                  a
consolidation, merger or binding share exchange, 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 (i) that does not result in any reclassification, conversion,
exchange or cancellation of the Company’s Capital Stock and (ii) pursuant
to which holders of the Company’s Capital Stock immediately prior to such
transaction have the entitlement to exercise, directly or indirectly, 50% or
more of the total Voting Stock of the continuing or surviving or successor
Person immediately after giving effect to such issuance; or


 


2





















 


(b)                                 any
merger, share exchange, transfer of assets or similar transaction solely for
the purpose of changing the Company’s jurisdiction of incorporation and
resulting in a reclassification, conversion or exchange of outstanding shares
of Common Stock, if at all, solely into shares of common stock, ordinary shares
or American Depositary Shares of the surviving entity or a direct or indirect
parent of the surviving corporation; or


 


(c)                                  any
consolidation or merger with or into a Subsidiary, so long as such merger or
consolidation is not part of a plan or a series of transactions designed to or
having the effect of merging or consolidating with any other Person.


 


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.


 


“close of business”
means 5:00 p.m. (New York City time).


 


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


 


“Common Stock”
means the common stock, no par value, 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, including in the event of a
merger, consolidation or other similar transaction involving the Company that
is otherwise permitted hereunder in which the Company is not the surviving
Person, the common stock of such surviving corporation.


 


“Company”
means the party named as the “Company” in the preamble of this Indenture,
excluding any of its Subsidiaries, 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 Notice”
means a notice to Holders delivered pursuant to Section 3.07 or Section 3.08.


 


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


 


“Contingent Interest”
means such interest payable as described in Article 11.


 


“Contingent Interest Period”
means (i) the period commencing on, and including, January 30, 2009
and ending on, and including, July 29, 2009, and (ii) each six-month
period from July 30 to and including January 29 or from January 30
to July 29 thereafter.


 


“Continuing Director”
means a director who either was a member of the Board of Directors on September 30,
2005 or who becomes a member of the Board of Directors subsequent to that date
and whose appointment, election or nomination for election by the Company’s
shareholders is duly approved by either (i) a majority of the Continuing
Directors on the Board of Directors at the time of such approval, either by
specific vote or by approval of the


 


3





















 


proxy statement issued by
the Company on behalf of the Board of Directors in which such individual is
named as nominee for director, or (ii) a Permitted Owner.


 


“Conversion Settlement Date”
means, with respect to the Conversion Settlement Distribution, the third
Business Day immediately following the date the Conversion Settlement
Distribution is determined.


 


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


 


“Corporate Trust
Office” means the designated office of the Trustee at which at any
time its corporate trust business shall be principally administered, which
office at the date hereof is located at 360 Interstate North Parkway, SE, Suite 500-GA4605,
Atlanta, Georgia  30339-2216, Attention:
Corporate Trust Department, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).


 


“Current Market
Price” of the Common Stock on any day means the average of the Last
Reported Sale Price per share of the Common Stock for each of the ten
consecutive Trading Days ending on the earlier of the day in question and the
day before the “Ex-Dividend Date” with respect to the issuance or distribution
requiring such computation, subject to adjustment by the Board of Directors if
another transaction requiring an adjustment to the Conversion Rate pursuant to Section 10.04
occurs during such ten-day period.


 


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


 


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


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Fair Market Value”
or “fair market value” means the
amount which a willing buyer would pay a willing seller in an arm’s-length
transaction.


 


“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 the
Depositary or a nominee thereof, and to the extent that such Securities are
required to bear the Legend required by Section 2.06(g), such Securities
shall 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.


 


4





















 


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


 


“Interest” means
interest payable on each Security pursuant to Section 1 of the Securities.


 


“Interest Payment Date”
means January 30 and July 30 of each year, commencing January 30,
2006.


 


“Interest Record Date”
means January 15 and July 15 of each year.


 


“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.


 


“Last Reported Sale Price”
means, with respect to any security on any date, the closing sale price (or if
no closing sale price is reported, the average of the bid and asked prices or,
if more than one in either case, the average of the average bid and the average
asked prices) on that date as reported by the Nasdaq National Market or, if the
Common Stock is not reported by the Nasdaq National Market, in composite
transactions for the principal U.S. national securities exchange on which the Common
Stock is traded.  If the Common Stock is
not listed for trading on a U.S. national or regional securities exchange and
not reported by the Nasdaq National Market on the relevant date, the “Last
Reported Sale Price” shall be the last quoted bid price for the Common Stock in
the over-the-counter market on the relevant date as reported by the National
Quotation Bureau or similar organization. 
If the Common Stock is not so quoted, the “Last Reported Sale Price”
shall be the average of the midpoint of the last bid and ask prices for the
Common Stock on the relevant date from each of at least two independent
nationally recognized investment banking firms selected by the Company for this
purpose.  If at least two independent
quotes cannot be obtained, the “Last Reported Sale Price” will be determined in
good faith by the Board of Directors.


 


“Liquidated Damages”
has the meaning provided in the Registration Rights Agreement.


 


“Offering Memorandum”
means the final offering memorandum of the Company dated November 17, 2005
relating to the offering of the Securities.


 


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


 


“Officer’s
Certificate” means a written certificate containing the information
specified in Section 12.04 and Section 12.05, signed in the name of
the Company by any Officer, and delivered to the Trustee.  An Officer’s Certificate given pursuant to Section 4.03
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 Section 12.04 and Section 12.05.


 


5





















 


“Opinion of Counsel”
means a written opinion containing the information specified in Section 12.04
and Section 12.05, from legal counsel who is reasonably acceptable to the
Trustee.  The counsel may be an employee
of, or counsel to, the Company.


 


“Purchase Agreement”
means the Purchase Agreement dated November 17, 2005 by and between the
Company and Bear, Stearns & Co. Inc., as representative of the initial
purchasers (the “Initial Purchasers”).


 


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


 


“Redemption Date”
means the date specified in a notice of redemption on which the Securities may
be redeemed in accordance with the terms of the Securities and this Indenture.


 


“Registration Rights
Agreement” means the Resale Registration Rights Agreement, dated as
of the date hereof, by and between the Company and Bear, Stearns & Co.
Inc., as representative of the initial purchasers under the Purchase Agreement.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer of the Trustee within
the Corporate Trust Services department (or any successor department) of the
Trustee located at the Corporate Trust Office of the Trustee who has direct
responsibility for the administration of this Indenture and, for the purposes
of Sections 7.01(c)(ii) and 7.05 shall also mean any other officer of the
Trustee to whom corporate trust matters associated with this Indenture have
been referred because of such person’s knowledge of and familiarity with the
particular subject matter.


 


“Restricted Security”
means a Security required to bear the Legend.


 


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


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities Act”
means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Security”
means any of the Company’s 5.875 % Convertible Senior Notes Due 2035, 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.


 


6





















 


“Significant
Subsidiary” means any Subsidiary that constitutes a “significant
subsidiary” within the meaning of Article 1 of Regulation S-X
promulgated under the Securities Act as in effect on the date of this
Indenture.


 


“Stated Maturity”,
when used with respect to any Security, means November 30, 2035.


 


“Stock Price”
means (A) in connection with a Change of Control transaction pursuant to
which Additional Shares are issuable as set forth in Section 10.01(c) hereof,
the price per share of Common Stock paid in connection with such Change of Control
transaction, which shall be equal to (i) if Holders of Common Stock
receive only cash in such Change of Control transaction, the cash amount paid
per share of Common Stock and (ii) in all other cases, the average of the
Last Reported Sale Prices of the Common Stock on the five Trading Days prior
to, but not including, the effective date of such Change of Control
transaction, and (B) in connection with a Fundamental Change event
pursuant to which Additional Shares are issuable as set forth in Section 10.01(c) hereof,
a price per share of Common Stock equal to the average of the Last Reported
Sale Prices of the Common Stock on the five Trading Days prior to, but not
including, the effective date of such Fundamental Change event.


 


“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.


 


“Tax Original Issue
Discount” means the amount of ordinary interest income on a Security
that must be accrued as original issue discount for U.S. federal income tax
purposes pursuant to Treasury regulations Section 1.1275-4.


 


“TIA”
means the Trust Indenture Act of 1939 as in effect on the date of this
Indenture, except as provided in Section 9.03.


 


“Trading Day”
means a day during which trading in securities generally occurs on the Nasdaq
National Market or, if the Common Stock is not quoted on the Nasdaq National
Market, then a day during which trading in securities generally occurs on the
principal U.S. securities exchange on which the Common Stock is then listed or,
if the Common Stock is not listed on a U.S. national or regional securities
exchange, then on the principal other market on which the Common Stock is then
traded.


 


“Trading Price”
of the Securities on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of the Securities
obtained by the Bid Solicitation Agent for $5,000,000 principal amount of the
Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers the Company selects; provided, that, if three such bids cannot
reasonably be obtained by the Bid Solicitation Agent, but two such bids are
obtained, then the average of the two bids shall be used, and if only one such
bid can reasonably be obtained by the Bid Solicitation Agent, that one bid
shall be used.  If the Bid Solicitation
Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount
of the Securities from a nationally recognized securities dealer, or in the
Company’s reasonable judgment, the bid quotations are not indicative of the
secondary market value of $1,000 principal amount of the


 


7





















 


Securities, then the
Trading Price of the Securities on any date of determination shall equal the
product of (i) the applicable Conversion Rate for the Securities as of the
date of determination and (ii) the average Last Reported Sale Price of the
Common Stock on the five Trading Days ending on such determination date.


 


“Treasury regulations”
means the U.S. federal income tax regulations, including temporary regulations,
promulgated under the Code, as those regulations may be amended from time to
time.  Any reference herein to a specific
section of the Treasury regulations shall include any corresponding
provisions of succeeding, similar, substitute, proposed or final Treasury
regulations.


 


“Trustee”
means the party named as the “Trustee” in the preamble of this Indenture unless
and 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.


 


“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).


 


Section 1.02.                             Other Definitions.


 


	
  Terms:

  	
   

  	
  Defined in

  Section:

  	
   

  
	
  “Act”

  	
   

  	
  1.05

  	
   

  
	
  “Acquisition Value”

  	
   

  	
  10.01(d)

  	
   

  
	
  “Additional Shares

  	
   

  	
  10.01(c)

  	
   

  
	
  “Adjustment Event”

  	
   

  	
  10.04(j)

  	
   

  
	
  “Agent Members”

  	
   

  	
  2.12(e)

  	
   

  
	
  “Acquisition Value”

  	
   

  	
  10.01(d)

  	
   

  
	
  “Bankruptcy Law”

  	
   

  	
  6.01(h)

  	
   

  
	
  “cash”

  	
   

  	
  3.01

  	
   

  
	
  “Cash Amount”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Cash Settlement Notice Period”

  	
   

  	
  10.03(a)

  	
   

  
	
  “contingent debt regulations”

  	
   

  	
  2.14(a)

  	
   

  
	
  “Conversion Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Conversion Date”

  	
   

  	
  10.02(c)

  	
   

  
	
  “Conversion Notice”

  	
   

  	
  10.02(b)

  	
   

  
	
  “Conversion Obligation”

  	
   

  	
  10.01(a)

  	
   

  
	
  “Conversion Rate”

  	
   

  	
  10.02(a)

  	
   

  
	
  “Conversion Reference Period”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Conversion Retraction Period”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Conversion Settlement Distribution”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Conversion Value”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Daily Share Amount”

  	
   

  	
  10.03(a)

  	
   

  



 


8





















 


	
  Terms:

  	
   

  	
  Defined in

  Section:

  	
   

  
	
  “Depositary”

  	
   

  	
  2.01(b)

  	
   

  
	
  “Determination Date”

  	
   

  	
  10.04(j)

  	
   

  
	
  “Distributed Assets”

  	
   

  	
  10.04(d)

  	
   

  
	
  “DTC”

  	
   

  	
  2.01(b)

  	
   

  
	
  “effective date”

  	
   

  	
  10.01(c)

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Exchange Property”

  	
   

  	
  10.01(b)

  	
   

  
	
  “Expiration Time”

  	
   

  	
  10.04(f)

  	
   

  
	
  “Extraordinary Cash Dividend”

  	
   

  	
  10.04(e)

  	
   

  
	
  “Fiscal Quarter”

  	
   

  	
  10.01(a)

  	
   

  
	
  “Fundamental Change”

  	
   

  	
  3.08(a)

  	
   

  
	
  “Fundamental Change Repurchase Date”

  	
   

  	
  3.08(a)

  	
   

  
	
  “Fundamental Change Repurchase Notice”

  	
   

  	
  3.08(c)

  	
   

  
	
  “Fundamental Change Repurchase Price”

  	
   

  	
  3.08(a)

  	
   

  
	
  “legal holiday”

  	
   

  	
  12.08

  	
   

  
	
  “Legend”

  	
   

  	
  2.06(g)

  	
   

  
	
  “Liquidated Damages Notice”

  	
   

  	
  4.07

  	
   

  
	
  “Notice of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Public Acquirer Change of Control

  	
   

  	
  10.01(d)

  	
   

  
	
  “Public Acquirer Common Stock”

  	
   

  	
  10.01(d)

  	
   

  
	
  “Purchased Shares”

  	
   

  	
  10.04(f)

  	
   

  
	
  “QIBs”

  	
   

  	
  2.01(b)

  	
   

  
	
  “Redemption Price”

  	
   

  	
  3.01

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Residual Cash Value”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Residual Value Shares”

  	
   

  	
  10.03(a)

  	
   

  
	
  “Rule 144A Information”

  	
   

  	
  4.06

  	
   

  
	
  “successor Person”

  	
   

  	
  5.01(a)

  	
   

  
	
  “Termination of Trading”

  	
   

  	
  3.08(a)

  	
   

  
	
  “Trigger Event”

  	
   

  	
  10.04(d)

  	
   

  
	
  “Valuation Period”

  	
   

  	
  10.01(d)

  	
   

  



 


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


 


“Commission”
means the SEC;


 


“indenture
securities” means the Securities;


 


“indenture security
holder” means a Securityholder;


 


“indenture to be qualified”
means this Indenture;


 


9





















 


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


 


“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 rules have the meanings assigned to them by such definitions.


 


Section 1.04.                             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 United States generally accepted accounting principles as in
effect from time to time;


 


(3)                                  “or”
is not exclusive;


 


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


 


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


 


(6)                                  references
to Sections and Articles are to references to Sections and Articles of this
Indenture.


 


Section 1.05.                             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 12.02.  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 which the Trustee deems
sufficient.


 


10





















 


(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 of any Security 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 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 2

The Securities


 


Section 2.01.                             Form and Dating. 
(a)                           The
Securities shall be substantially in the form of Exhibits A and B, which are a
part of this Indenture.  The Securities
may have notations, legends or endorsements required by law, stock exchange rule or
usage (provided that any such notation, legend or endorsement required by usage
is in a form acceptable to the Company). 
The Company shall provide any such notations, legends or endorsements to
the Trustee in writing.  Each Security
shall be dated the date of its authentication. The Securities may, but need
not, have the corporate seal of the Company or a facsimile thereof affixed
thereto or imprinted thereon.


 


(b)                                 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.


 


11





















 


(c)                                  Global Securities in General.  Each Global Security shall represent such of
the outstanding Securities as shall be specified therein and each shall provide
that it shall represent the aggregate amount of outstanding Securities from
time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges, redemptions, 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.


 


(d)                                 Book-Entry Provisions.  This Section 2.01(d) 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 2.01(d), authenticate and deliver initially
one or more Global Securities that (a) shall be registered in the name of
the Depositary or a nominee thereof, (b) shall be delivered by the Trustee
to the Depositary or held by the Trustee pursuant to the Depositary’s
instructions and (c) shall be substantially in the form of Exhibit A
attached hereto.


 


(e)                                  Certificated Securities.  Securities not issued
as interests in the Global Securities shall be issued in certificated form
substantially in the form of Exhibit B attached hereto.


 


Section 2.02.                             Execution and Authentication.  The Securities shall be executed on behalf of
the Company by two Officers.  The
signature of two Officers on the Securities may be manual or facsimile.


 


Securities bearing the manual or facsimile signatures
of individuals who were, at the time of the execution of the Securities,
Officers shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication 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 $300,000,000
upon one or more Company Orders without any further action by the Company
(other than as contemplated in Section 12.04 and Section 12.05
hereof).  Upon receipt by the Trustee of
an Officers’ Certificate stating that the Initial Purchasers have elected to
purchase from the Company a specified principal amount of additional
Securities, not to exceed $50,000,000, pursuant to Section 2(c) of
the Purchase Agreement, the Trustee shall authenticate and deliver such
specified principal amount of additional Securities to or upon the


 


12





















 


written order of the
Company.  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.


 


Section 2.03.                             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 4.05.  The term Conversion
Agent includes any additional Conversion Agent, including any named pursuant to
Section 4.05.


 


The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent, Conversion Agent, or co-registrar
(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 promptly notify the Trustee
of the name and address of any such agent. 
If the Company fails to maintain a Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07.  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, Conversion Agent and Paying Agent in connection with the Securities.


 


Section 2.04.                             Paying Agent to Hold Money and Securities in Trust.  Except as otherwise provided herein, on or
prior to 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) or shares of 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 money and shares of Common Stock held by the Paying Agent
for the making of payments in respect of the Securities and shall promptly
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 money and shares of
Common Stock so held in trust.  If the
Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent,
it shall segregate the money and shares of Common Stock held by it as Paying
Agent and hold it as a separate trust fund. 
The Company at any time may require a Paying Agent to pay all money and
shares of Common Stock held by it to the Trustee and to account for any funds
and Common Stock disbursed by it.  Upon
doing so, the Paying Agent shall have no further liability for the money or
shares of Common Stock.


 


13





















 


Section 2.05.                             Securityholder Lists. 
The Trustee shall preserve 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 semiannually on May 15 and November 15
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 2.06.                             Transfer and Exchange. 
(a)  Subject to Section 2.12 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 2.03,
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 that 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 be redeemed in part, the
portion thereof not to be redeemed) or any Securities in respect of which a
Fundamental Change 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
notice of redemption 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, transfers of a
Global Security, in whole or in part, shall be made only in accordance with Section 2.12
and this Section 2.06.  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.


 


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(d)                                 Except
as otherwise set forth in this Indenture, any such action taken by a Holder
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto
is made upon such Security or any Security issued in exchange or substitution
therefor.


 


(e)                                  Any
Registrar appointed pursuant to Section 2.03 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.


 


(f)                                    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.


 


(g)                                 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 Registrar), 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 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, at the written direction of the Company, 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.


 


Section 2.07.                             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 save 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 upon its written request 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
redeemed or 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.


 


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


 


Every new Security issued pursuant to this Section 2.07
in lieu of any mutilated, destroyed, lost or stolen Security shall constitute
an original 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 2.07 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 2.08.                             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 redeemed or purchased pursuant to Article 3 hereof, those delivered
to it for cancellation and those described in this Section 2.08 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 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.  Subject
to the foregoing, only Securities outstanding at the time of such determination
shall be considered in any such determination (including determinations pursuant
to Article 6 and Article 9).


 


If a Security is replaced pursuant to Section 2.07,
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 immediately following a
Fundamental Change Repurchase Date, or on Stated Maturity, money or securities,
if permitted hereunder, sufficient to pay Securities payable on that date, then
from and after such Redemption Date, Fundamental Change Repurchase Date or
Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and Interest, Contingent Interest and Liquidated Damages, 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 10,
then from and after the time of conversion on the date of conversion, such
Security shall cease to be outstanding and Interest,


 


16





















 


Contingent Interest, Liquidated
Damages, if any, and the rights of the Holders therein shall terminate (other
than the right to receive the Conversion Settlement Distribution).


 


Section 2.09.                             Temporary Securities. 
Pending the preparation of Certificated Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the Certificated 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 shall
cause Certificated Securities to be prepared without unreasonable delay.  After the preparation of Certificated
Securities, the temporary Securities shall be exchangeable for Certificated
Securities upon surrender of the temporary Securities at the office or agency
of the Company designated for such purpose pursuant to Section 2.03,
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
Certificated Securities of authorized denominations.  Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
Certificated Securities.


 


Section 2.10.                             Cancellation.  All
Securities surrendered for payment, purchase by the Company pursuant to Article 3,
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 that 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 other than in connection with
registrations of transfer or exchange or that any Holder has converted pursuant
to Article 10.  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.                             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 the principal amount of the Security or
any portion thereof, or the payment of any Redemption Price or Fundamental
Change Repurchase Price in respect thereof, and Interest, Contingent Interest
or Liquidated Damages thereon, for the purpose of conversion and for all other
purposes whatsoever, 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 2.12.                             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 2.06
and Section 2.12(a)(i) below, (B) transfers of a beneficial


 


17





















 


interest in a
Global Security for a Certificated Security shall comply with Section 2.06
and Section 2.12(a)(ii) below and Section 2.12(e) below,
and (C) transfers of a Certificated Security shall comply with Section 2.06,
Section 2.12(a)(iii) and Section 2.12(a)(iv) 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 this Section 2.12(a)(i) shall
not prohibit any transfer of a Security that is issued in exchange for a Global
Security, but is not itself a Global Security. 
No transfer of a 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 2.12(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 2.12.


 


(ii)                                  Restrictions on Transfer 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 in
this paragraph below and in Section 2.12(e) below.  Upon receipt by the Trustee of a request to
transfer 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 decreased; 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.


 


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


 


(y)                                 to
register the transfer of such Certificated Securities; or


 


18





















 


(z)                                   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
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.


 


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


 


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


 


(I)                                    so
long as the Securities are Restricted Securities, certification, in the form
set forth in Exhibit C, that such Certificated Security (A) is being
transferred to a QIB in accordance with Rule 144A under the Securities Act
or (B) is being transferred pursuant to and in compliance with Rule 144
under the Securities Act; and


 


19





















 


(II)                                written
instructions directing the Trustee to make, or to direct the Registrar to make,
an adjustment on its books and records with respect to such Global 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
Trustee shall cancel such Certificated Security and cause, or direct the
Registrar to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate principal
amount of 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 Officer’s Certificate, a new Global Security
in the appropriate principal amount.


 


(b)                                 Subject
to the succeeding Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend including the delivery of an
opinion of counsel, if so provided.  Whenever
any Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than that of
the Holder, 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 of such Security, as to compliance with such restrictions
on transfer.  The Registrar shall not be
required to accept for such registration of 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 2.12
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 under the Securities
Act 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 and the Trustee, addressed to the Company and the
Trustee and in form acceptable to the Company and the Trustee, to the effect
that the transfer of such Security has been made in compliance with Rule 144
under the Securities Act 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 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.


 


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(d)                                 As
used in the preceding two paragraphs of this Section 2.12, the term “transfer”
encompasses any sale, pledge, transfer, loan, hypothecation, or other
disposition of any Security.


 


(e)                                  The
provisions of clauses (i), (ii), (iii),
(iv) and
(v) below
shall apply only to Global Securities:


 


(i)                                     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 Exchange Act, and a successor Depositary is not
appointed by the Company within 90 days (ii) the Company determines at any
time that the Securities shall no longer be represented by Global Securities
and shall inform such Depositary of such determination in writing and
participants in such Depositary elect to withdraw their beneficial interests in
the Global Securities from such Depositary, following notification by the
Depositary of their right to do so or (iii) an Event of Default has
occurred and is continuing.  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 clauses (ii) or
(iii) above may be exchanged in whole or from time to time in part as
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 or any
successor of either of the foregoing pursuant to this paragraph shall not be a
Global Security.


 


(ii)                                  Securities
issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, 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
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
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.


 


(iii)                               Subject
to the provisions of clause (v) 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.


 


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(iv)                              In
the event of the occurrence of any of the events specified in clause (i) above,
the Company shall promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form.


 


(v)                                 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.


 


(vi)                              Except
as expressly set forth in this Indenture, including Sections 2.12(a)(ii) and
2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the Company
or the Registrar shall have any responsibility or obligation to any beneficial
owner in the Global Securities, a member of, or a participant in the Depositary
or other Person with respect to the accuracy of the records of the Depositary
or its nominee or of any participant or member thereof, with respect to any
ownership interest in the Global Securities or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the payment
of any amount, under or with respect to such Global Securities.  All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities shall
be given or made only to or upon the order of the registered Holders (which
shall be, in the case of a Global Security, the Depositary or its
nominee).  The rights of beneficial
owners in the Global Securities shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary.  Other than as set forth in this Indenture,
the Trustee, any Paying Agent, the Conversion Agent, the Company and the
Registrar may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any
beneficial owners.  Except as expressly
set forth in this Indenture, including Sections 2.12(a)(ii) and 2.12(e),
the Trustee, each Paying Agent, the Conversion Agent, the Company and the
Registrar shall be entitled to deal with any depositary (including the
Depositary), and any nominee thereof, that is the Holder of any Global
Securities as a Holder for all purposes of this Indenture relating to such
Global Securities (including the payment of principal, Interest, Contingent
Interest, if any, and Liquidated Damages, if any, and the giving of instructions
or directions by or to the owner or Holder of a beneficial ownership interest
in such Global Securities) as the sole Holder of such Global Securities and
shall have no obligations to the beneficial owners thereof.  None of the Trustee, any Paying Agent, the
Conversion Agent, the Company or the Registrar shall have any responsibility or
liability for any acts or omissions of any such depositary with respect to such
Global Securities, for the records of any such


 


22





















 


depositary, including records in respect of beneficial
ownership interests in respect of any such Global Securities, for any
transactions between such depositary and any participant in such depositary or
between or among any such depositary, any such participant and/or any holder or
owner of a beneficial interest in such Global Securities or for any transfers
of beneficial interests in any such Global Securities.


 


(f)                                    The
Trustee and the Registrar 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.


 


The Trustee shall have no responsibility for the
actions or omissions of the Depositary, or the accuracy of the books and
records of the Depositary.


 


Section 2.13.                             CUSIP Numbers.  The
Company may issue the Securities with one or more “CUSIP,” “ISIN” or other
similar numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP,”
“ISIN” or other similar 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 or purchase 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 shall promptly
notify the Trustee of any change in the “CUSIP,” “ISIN” or other similar
numbers.


 


Section 2.14.                             Contingent Debt Tax Treatment.  (a)  The Company and each Holder, by
acquiring a beneficial interest in a Security, agree (i) to treat the
Security as indebtedness for U.S. federal income tax purposes that is subject
to the Treasury regulations governing contingent payment debt instruments (the “contingent debt regulations”), (ii) that
each Holder shall be bound by the Company’s application of the contingent debt
regulations to the Security, including the Company’s determination of the “comparable
yield” and “projected payment schedule” within the meaning of the contingent
debt regulations, and (iii) that the Company and each Holder will not take
any position on any U.S. federal income tax return that is inconsistent with (i) or
(ii), unless required by applicable law. 
A Holder may obtain the issue price, the amount of Tax Original Issue
Discount, issue date, yield to maturity, comparable yield and projected payment
schedule for the Security, as determined by the Company pursuant to the
contingent debt regulations, by submitting a written request to the Company at
the following address:  CompuCredit
Corporation, 245 Perimeter Center Parkway, Suite 600, Atlanta, GA  30346, Attention:  Investor Relations.


 


(b)                                 Each
Security shall bear a legend relating to U.S. federal income tax matters in the
form set forth in Exhibits A and B.


 


23





















 


Section 2.15.                             Calculation of Tax Original Issue Discount.  The Company shall file with the Trustee
promptly at the end of each calendar year (i) a written notice specifying
the amount of Tax Original Issue Discount (including daily rates and accrual
periods) accrued on outstanding Securities as of the end of such year and (ii) such
other specific information relating to such Tax Original Issue Discount as may
then be required under the Code or the Treasury regulations promulgated
thereunder.


 


ARTICLE 3

Redemption and Repurchases


 


Section 3.01.                             Company’s Right to Redeem; Notices to Trustee.  Prior to February 4, 2009, the Securities
shall not be redeemable at the Company’s option.  The Company, at its option, may redeem the
Securities, in whole or in part, (1) at any time on or after February 4,
2009, if the Last Reported Sale Price of the Common Stock for at least 20 Trading
Days during the period of 30 consecutive Trading Days ending on the last
Trading Day prior to the mailing of the notice of redemption exceeds 140% of
the applicable Conversion Price for U.S. legal tender (“cash”)
at a redemption price (the “Redemption Price”)
equal to 100% of the principal amount of the Securities redeemed, plus any
accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any,
and accrued and unpaid Liquidated Damages, if any, on the Securities redeemed
up to, but not including, the Redemption Date. 
If the Redemption Date is on a date that is after an Interest Record
Date and on or prior to the corresponding Interest Payment Date, the Redemption
Price shall be 100% of the principal amount of the Securities redeemed, but shall
not include accrued and unpaid Interest, accrued and unpaid Contingent
Interest, if any, and Liquidated Damages, if any.  Instead, the Company shall pay such Interest,
Contingent Interest, if any, and Liquidated Damages, if any, on the Interest
Payment Date to the Holder of record on the corresponding Interest Record
Date.  If the Company elects to redeem
Securities pursuant to this Section 3.01, it shall notify the Trustee in
writing of such election together with the Redemption Date, the Conversion Rate,
the principal amount of Securities to be redeemed and the Redemption
Price.  Notwithstanding the foregoing,
the Company may not redeem the Securities if it has failed to pay any Interest,
including Contingent Interest, if any, and Liquidated Damages, if any, on the
Securities when due and such failure is continuing.


 


The Company shall give the notice to the Trustee
provided for in this Section 3.01 by a Company Order, at least 30 days,
but not more than 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).


 


Section 3.02.                             Selection of Securities to Be Redeemed.  If less than all of the Securities are to be
redeemed, unless the procedures of the Depositary provide otherwise, the
Trustee shall select the Securities to be redeemed by lot, on a pro rata basis
or by another method the Trustee considers fair and appropriate (so long as
such method is not prohibited by the rules of any stock exchange or
quotation association on which the Securities are then traded or quoted).  The Trustee may select for redemption
portions of the principal amount of Securities that have denominations larger
than $1,000.


 


Securities and portions of Securities that the Trustee
selects 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


 


24





















 


shall notify the Company
promptly (but in any case within 7 days of the Company Order referred to in Section 3.01)
of the Securities or portions of the Securities selected to be redeemed and, in
the case of any Securities selected for partial redemption, the method it has
chosen for the selection of the Securities.


 


Following a notice of redemption, Securities and
portions of Securities are convertible, pursuant to Section 10.01(a)(2),
by the Holder until the close of business on the Business Day prior to 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 that 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.


 


Section 3.03.                             Notice of Redemption. 
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption (substantially in the form of Exhibit D)
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.


 


The notice shall identify the Securities to be redeemed
and shall state (along with any other information the Company wishes to
include):


 


(1)                                  the
Redemption Date;


 


(2)                                  the
Redemption Price;


 


(3)                                  the
Conversion Rate;


 


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


 


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


 


(6)                                  that
Securities called for redemption and not converted shall be redeemed on the
Redemption Date;


 


(7)                                  that
Holders who want to convert their Securities must satisfy the requirements set
forth in Article 10 hereof;


 


(8)                                  that
Securities called for redemption must be surrendered to the Paying Agent (by
effecting book-entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to
collect the Redemption Price;


 


(9)                                  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;


 


(10)                            that,
unless the Company defaults in making payment of such Redemption Price,
Interest, Contingent Interest, if any, and Liquidated Damages, if


 


25





















 


any, the Securities called for redemption
shall cease to accrue from and after the Redemption Date; and


 


(11)                            the “CUSIP,”
“ISIN” or other similar number(s), as the case may be, of the Securities being
redeemed.


 


At the Company’s request, the Trustee shall give the
notice of redemption in the Company’s name and at the Company’s expense;
provided, that the Company makes such request at least seven Business Days (or
such shorter period as may be satisfactory to the Trustee) prior to the date by
which such notice of redemption must be given to Holders in accordance with
this Section 3.03.


 


Section 3.04.                             Effect of Notice of Redemption.  Once notice of redemption is given,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price stated in the notice except for Securities that are
converted in accordance with the terms of this Indenture. Upon surrender to the
Paying Agent, such Securities shall be paid at the Redemption Price stated in
the notice and from and after the Redemption Date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear Interest, Contingent Interest, if any, and Liquidated Damages, if any, and
the rights of the Holders therein shall terminate (other than the right to
receive the Redemption Price).


 


Section 3.05.                             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 that 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 10.  If such money is then held by the Company or
a Subsidiary or an Affiliate of either in trust and is not required for such
purpose it shall be discharged from such trust.


 


Section 3.06.                             Securities Redeemed in Part. 
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall, without charge, authenticate and deliver to the
Holder a new Security in an authorized denomination equal in principal amount
to the unredeemed portion of the Security surrendered.


 


Section 3.07.                             Reserved.


 


Section 3.08.                             Repurchase of Securities at Option of the Holder Upon a Fundamental
Change.


 


(a) 
If a Fundamental Change occurs, each Holder shall have the right, at such
Holder’s option, to require the Company to repurchase for cash all of such
Holder’s Securities not previously called for redemption by the Company, or any
portion thereof that is equal to or an integral multiple of $1,000 principal
amount, at a repurchase price equal to 100% of the principal amount of those
Securities, plus accrued and unpaid Interest, accrued and unpaid Contingent
Interest, if any, and accrued and unpaid Liquidated Damages, if any, on those


 


26





















 


Securities (the “Fundamental Change Repurchase Price”) to the date that is fixed by the Company that is not
less than 20 days nor more than 60 days following the date of the notice of a
Fundamental Change mailed by the Company pursuant to Section 3.08(b) (the
“Fundamental Change Repurchase Date”), subject to satisfaction
by or on behalf of the Holder of the requirements set forth in Section 3.08(c);
provided, that, if the Fundamental Change Repurchase Date is on a date that is
after an Interest Record Date and on or prior to the corresponding Interest
Payment Date, the Fundamental Change Repurchase Price shall be 100% of the
principal amount of the Securities repurchased, but shall not include accrued
and unpaid Interest, accrued and unpaid Contingent Interest, if any, and
Liquidated Damages, if any.  Instead, the
Company shall pay such Interest, Contingent Interest, if any, and Liquidated
Damages, if any, on the Interest Payment Date to the Holder of record on the
corresponding Interest Record Date.


 


A “Fundamental
Change” shall be deemed to have occurred (i) upon a Change of
Control or (ii) if less than 20% of the outstanding shares of the Common
Stock is beneficially owned by Persons other than the Permitted Owners or (iii) upon
a Termination of Trading.


 


A “Termination of Trading”
is deemed to occur if the Common Stock (or other common stock into which the
Securities are then convertible) is neither listed for trading on a U.S.
national securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.


 


(b)                                 No
later than 15 days after the occurrence of a Fundamental Change, the Company
shall mail a Company Notice of the Fundamental Change (substantially in the
form of Exhibit E) by first class mail to the Trustee and to each Holder
(and to beneficial owners if required by applicable law).  The Company Notice shall include a form of
Fundamental Change Repurchase Notice to be completed by the Holder and shall
state:


 


(i)                                     briefly,
the events causing a Fundamental Change and the date of such Fundamental
Change;


 


(ii)                                  the
date by which the Fundamental Change Repurchase Notice pursuant to this Section 3.08
must be delivered to the Paying Agent in order for a Holder to exercise the
repurchase rights;


 


(iii)                               the
Fundamental Change Repurchase Date;


 


(iv)                              the
Fundamental Change Repurchase Price;


 


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


 


(vi)                              the
Conversion Rate;


 


(vii)                           that
the Securities as to which a Fundamental Change Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to Article 10
hereof only if the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;


 


27





















 


(viii)                        that the
Securities must be surrendered to the Paying Agent (by effecting book-entry
transfer of the Securities or delivering Certificated Securities, together with
necessary endorsements, as the case may be) to collect payment;


 


(ix)                                that
the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been duly given and not withdrawn
shall be paid promptly following the later of the Business Day immediately
following the Fundamental Change Repurchase Date and the time of surrender of
such Security as described in clause (viii);


 


(x)                                   briefly,
the procedures the Holder must follow to exercise rights under this Section 3.08;


 


(xi)                                briefly,
the conversion rights, if any, that exist on the Securities at the date of the
Company Notice and as a result of such Fundamental Change;


 


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


 


(xiii)                          that,
unless the Company defaults in making payment of such Fundamental Change
Repurchase Price on Securities for which a Fundamental Change Repurchase Notice
is submitted, Interest, Contingent Interest and Liquidated Damages, if any, on
Securities surrendered for purchase by the Company shall cease to accrue from
and after the Fundamental Change Repurchase Date; and


 


(xiv)                         the “CUSIP,”
“ISIN” or other similar number(s), as the case may be, of the Securities.


 


At the Company’s request, the Trustee shall give such
Company Notice to each Holder in the Company’s name and at the Company’s
expense; provided, however, that, in all cases, the text of such Company Notice
shall be prepared by the Company.


 


(c)                                  A
Holder may exercise its rights specified in this Section 3.08 upon
delivery of a written notice of repurchase (a “Fundamental
Change Repurchase Notice”) to the Paying Agent at any time on or
prior to the close of business on the third Business Day before the Fundamental
Change Repurchase Date, stating:


 


(i)                                     if
Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated
Securities have not been issued, the Fundamental Change Repurchase Notice shall
comply with the appropriate Depositary procedures for book-entry transfer;


 


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


 


(iii)                               that
such Security shall be repurchased pursuant to the terms and conditions
specified in Section 6 of the Securities and in Section 3.08 of this
Indenture.


 


28





















 


The delivery of such Security (together with all
necessary endorsements) to the Paying Agent with the Fundamental Change
Repurchase Notice at the offices of the Paying Agent shall be a condition to
the receipt by the Holder of the Fundamental Change Repurchase Price therefor;
provided, however, that such Fundamental Change Repurchase Price shall be so
paid pursuant to this Section 3.08 only if the Security (together with all
necessary endorsements) so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Fundamental Change
Repurchase Notice.


 


The Company shall repurchase from the Holder thereof,
pursuant to this Section 3.08, 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 3.08 shall be consummated by the delivery
of the Fundamental Change Repurchase Price promptly following the later of the
Business Day following the Fundamental Change Repurchase Date or the time of
delivery of such Security (together with all necessary endorsements or
notifications of book-entry transfer).


 


Notwithstanding the foregoing, the Holders shall not
have the right to require the Company to repurchase the Securities upon a
Change of Control described in clause (3) of the definition thereof if 90%
or more of the consideration in the transaction or transactions constituting
such Change of Control consists of shares of common stock traded or to be
traded immediately following such Change of Control on a U.S. national
securities exchange or the Nasdaq National Market, and, as a result of such
transaction or transactions, the Securities become convertible into such common
stock (and any rights attached thereto).


 


Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice
contemplated by this Section 3.08(b) shall have the right to withdraw
such Fundamental Change Repurchase Notice by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.09 at any time
prior to the close of business on the Fundamental Change Repurchase Date.


 


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


 


Section 3.09.                             Effect of Fundamental Change Repurchase Notice.  (a)  Upon receipt by the Paying Agent of
the Fundamental Change Repurchase Notice specified in Section 3.08, the
Holder of the Security in respect of which such Fundamental Change Repurchase
Notice was given shall (unless such Fundamental Change Repurchase Notice is
withdrawn as specified in Section 3.09(b)) thereafter be
entitled solely to receive the Fundamental Change Repurchase Price with respect
to such Security whether or not the Security is, in fact, properly
delivered.  Such Fundamental Change
Repurchase Price shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Business Day following the Fundamental Change Repurchase Date with respect to
such Security (provided the conditions in Section 3.08 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 3.08.  Securities in


 


29





















 


respect of which a
Fundamental Change Repurchase Notice has been given by the Holder thereof may
not be converted pursuant to and to the extent permitted by Article 10
hereof on or after the date of the delivery of such Fundamental Change
Repurchase Notice unless such Fundamental Change Repurchase Notice has first
been validly withdrawn as specified in Section 3.09(b).


 


(b)                                 A
Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Fundamental Change Repurchase Notice received by the Paying Agent
prior to the close of business on the Fundamental Change Repurchase Date.  Such notice must specify:


 


(i)                                     the
principal amount, if any, of such Security which remains subject to the
original Fundamental Change Repurchase Notice and which has been or shall be
delivered for purchase by the Company;


 


(ii)                                  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, that such withdrawal
notice shall comply with the appropriate Depositary procedures; and


 


(iii)                               the
principal amount of the Security with respect to which such notice of
withdrawal is being submitted.


 


Section 3.10.                             Deposit of Fundamental Change Repurchase Price.  Prior to 10:00 a.m. (local time in the
City of New York) on the Business  Day
following the Fundamental Change Repurchase Date the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either
of them is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.04) an amount of cash in immediately available funds
sufficient to pay the aggregate Fundamental Change Repurchase Price of all the
Securities or portions thereof that are to be purchased as of the Fundamental
Change Repurchase Date.


 


Section 3.11.                             Securities Purchased in Part.  Any Certificated Security that is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, 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 purchased.


 


Section 3.12.                             Covenant to Comply with Securities Laws upon Purchase of Securities.  When complying with the provisions of Section 3.08
hereof (provided that such offer or purchase constitutes an “issuer tender
offer” for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or purchase), and subject to any exemptions available under applicable
law, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1
(or any successor provision) and any other applicable tender offer rules under
the Exchange Act, (ii) file the related Schedule TO (or any


 


30





















 


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 Sections Section 3.08 to be exercised in the time
and in the manner specified in Section 3.08.


 


Section 3.13.                             Repayment to the Company. 
The Trustee and the Paying Agent shall return to the Company any cash
that remains unclaimed as provided in Section 12 of the Securities,
together with interest, if any, thereon (subject to the provisions of Section 7.01(f)),
held by them for the payment of the Fundamental Change Repurchase Price.


 


ARTICLE 4

Covenants


 


Section 4.01.                             Payment of Securities. 
The Company shall 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 in
immediately available funds or shares of Common Stock 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.  The principal amount of, and Interest,
Contingent Interest, if any, and Liquidated Damages, if any, on the Securities,
and the Redemption Price, and the Fundamental Change Repurchase Price shall be
considered paid on the applicable date due if on such date (which, in the case
of a Fundamental Change Repurchase Price, shall be on the Business Day
immediately following the applicable Fundamental Change Repurchase Date) the
Trustee or the Paying Agent holds, in accordance with this Indenture, cash or
securities, if permitted hereunder, sufficient to pay all such amounts then
due.


 


Section 4.02.                             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) that the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act; provided, however, that the filing of any such reports,
information or documents with the SEC on its EDGAR system (or any successor
system on which filings are public accessible) shall be deemed to satisfy such
requirement.  The Company shall also
comply with the other provisions of TIA Section 314(a).  Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officer’s Certificates).


 


Section 4.03.                             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 December 31,
2005) an Officer’s Certificate, stating whether or not the signer thereof knows
of any Default by the Company and if the signer knows of any such Default,
specifying all such Defaults and the nature and status thereof, and otherwise
complying with Section 314(a)(4) of
the TIA.


 


31





















 


The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, within 30 days of any executive officer of
the Company becoming aware of any Default or Event of Default in respect of the
performance or observance of any covenant or agreement contained in this
Indenture or the Securities, an Officer’s Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.


 


Section 4.04.                             Further Instruments and
Acts.  The Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the provisions of this Indenture.


 


Section 4.05.                             Maintenance of Office or Agency.  The Company shall 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, purchase, redemption or conversion and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served.  The office of the
Trustee, located at One Penn Plaza, Suite 1414, New York, New York 10119,
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).  If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 12.02.


 


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 4.06.                             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 shall 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 beneficial owner 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 4.07.                             Liquidated Damages Notice. 
In the event that the Company is required to pay Liquidated Damages to
Holders of Securities pursuant to the Registration Rights Agreement, the
Company shall provide written notice (“Liquidated
Damages Notice”) to the Trustee of its obligation to pay Liquidated
Damages prior to the required payment date for the Liquidated


 


32





















 


Damages, and the
Liquidated Damages Notice shall set forth the amount of Liquidated Damages to
be paid by the Company on such payment date. 
The Trustee shall not at any time be under any duty to any Holder of
Securities to determine the Liquidated Damages, or with respect to the nature,
extent or calculation of the amount of Liquidated Damages when made, or with
respect to the method employed in such calculation of the Liquidated Damages.


 


ARTICLE 5

Successor Person


 


Section 5.01.                             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)                                  the
resulting, surviving or transferee person (the “successor
Person”) and, if any resulting Conversion Obligation relates to
Public Acquirer Common Stock that is not issued by such successor Person, such
public acquirer, will be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia and
the successor Person (if not the Company) and the public acquirer, as
applicable, will expressly assume, by indenture supplemental hereto, executed
and delivered to the Trustee, in the form reasonably satisfactory to the
Trustee, all of obligations of the Company or such successor Person and fully
and unconditionally guarantee all of the obligations of the Company or such
successor Person under the Securities and this Indenture;


 


(b)                                 immediately
after giving effect to such transaction (and treating any indebtedness which
becomes an obligation of the successor Person as a result of such transaction
as having been incurred by such successor Person as the time of such
transaction), no Default shall have occurred and be continuing; and


 


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


 


For purposes of the foregoing, the transfer (by lease,
assignment, 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 under this Indenture and the Securities.  Subject to Section 9.06, the Company,
the Trustee and


 


33





















 


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 6

Defaults and Remedies


 


Section 6.01.                             Events of Default.  So
long as any Securities are outstanding, each of the following shall be an “Event of Default”:


 


(a)                                  following
the exercise by the Holder of the right to convert a Security in accordance
with Article 10 hereof, the Company fails to comply with its obligations
to deliver the cash or shares of Common Stock, if any, required to be delivered
as part of the applicable Conversion Settlement Distribution on the applicable
Conversion Settlement Date and such failure continues for a period of 5 days or
more;


 


(b)                                 the
Company defaults in its obligation to provide timely notice of a Fundamental Change
to the Trustee and each Holder as required under Section 3.08(b);


 


(c)                                  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 3.01 hereof;


 


(d)                                 the
Company defaults in the payment of the principal amount of any Security when
due at maturity, redemption, upon repurchase or otherwise (including, without
limitation, upon the exercise by a Holder of its right to require the Company
to repurchase such Securities pursuant to and in accordance with Section 3.08
hereof);


 


(e)                                  the
Company defaults in the payment of any Interest or Contingent Interest or
Liquidated Damages, if any, when due and payable, and continuance of such
default for a period of 30 days;


 


(f)                                    the
Company fails to perform or observe any term, covenant or warranty or agreement
in the Securities or this Indenture (other than those referred to in clause (a) through
clause (e) above) and such failure continues for 60 days after receipt by
the Company of a Notice of Default;


 


(g)                                 a
failure to pay when due at maturity or a default, event of default or other
similar condition or event (however described) that results in the acceleration
of maturity of indebtedness for borrowed money of the Company or the
Significant Subsidiaries (other than indebtedness that is non-recourse to the
Company or the Significant Subsidiaries) in an aggregate principal amount of
$50 million or more, unless such failure is cured or the acceleration is
rescinded, stayed or annulled within 30 days after receipt by the Company of a
Notice of Default;


 


(h)                                 the
entry by a court having jurisdiction in the premise of (i) a decree or
order for relief in respect of the Company, in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law (a “Bankruptcy Law”) or (ii) a
decree or order adjudging the Company as bankrupt or insolvent, or approving as
properly filed a


 


34





















 


petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, under any applicable Bankruptcy Law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property (other than its
Subsidiaries), 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 described in clause (i) or (ii) above is unstayed and in
effect for a period of 60 consecutive days; and


 


(i)                                     (i) the
commencement by the Company, of a voluntary case or proceeding under any
applicable Bankruptcy Law or of any other case or proceeding to be adjudicated
as bankrupt or insolvent, (ii) the consent by the Company to the entry of
a decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company, (iii) the
filing by the Company of a petition or answer or consent seeking reorganization
or relief under any applicable Bankruptcy Law, (iv) 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 (other than its Subsidiaries), or (v) the making by
the Company of a general assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its debts generally
as they become due.


 


The foregoing shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary
or involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.


 


For the avoidance of doubt, clauses (f) and
(g) above
shall not constitute 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 such
default and the Company does not cure such default (and such default is not
waived) within the time specified in clauses (f) and (g) above
after actual receipt of such notice.  Any
such notice must specify the default, demand that it be remedied and state that
such notice is a “Notice of Default.”


 


Section 6.02.                             Acceleration.  If an
Event of Default (other than an Event of Default specified in Section 6.01(h) or
Section 6.01(i)) occurs and is continuing (the
Event of Default not having been cured or waived), 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 and the Trustee,
may declare the principal amount of the Securities and any accrued and unpaid
Interest, any accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Liquidated Damages, 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 6.01(h) or
Section 6.01(i) occurs and is continuing, the principal amount of the
Securities and any accrued and unpaid Interest, any accrued and unpaid
Contingent Interest, if any, and accrued and unpaid Liquidated Damages, 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


 


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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, and thereby waive the Events of Default giving rise to such
acceleration, if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of the principal amount of the Securities and any accrued and unpaid
Interest, any accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Liquidated Damages, if any, that have become due solely as a result of
acceleration.  No such rescission shall
affect any subsequent Event of Default or impair any right consequent thereto.


 


Section 6.03.                             Other Remedies.  If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of the principal amount of the Securities and any
accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if any,
and accrued and unpaid Liquidated Damages, 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 6.04.                             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 any existing or past Default and
its consequences except (1) an Event of Default described in clauses (a),
(c), (d), and (e) of Section 6.01 or (2) an Event of Default in
respect of a provision that under Section 9.02 cannot be amended without
the consent of each Securityholder affected. 
When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.  This Section 6.04 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 6.05.                             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 is unduly prejudicial to the rights of other Securityholders or
would involve the Trustee in personal liability; provided, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent
with such direction or this Agreement. 
Prior to taking any action under this Indenture, the Trustee may require
indemnity satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.  This Section 6.05 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 6.06.                             Limitation on Suits. 
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities, except in case of a Default due to the non-payment
of


 


36





















 


the principal
amount of the Securities, any accrued and unpaid Interest, any accrued and
unpaid Contingent Interest, if any, or any accrued and unpaid Liquidated
Damages, if any, unless:


 


(a)                                  the
Holder gives to the Trustee written notice stating that a Default is
continuing;


 


(b)                                 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;


 


(c)                                  such
Holder or Holders offer reasonable security or indemnity to the Trustee against
any costs, liability or expense;


 


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


 


(e)                                  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.


 


Section 6.07.                             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
of the Securities and any accrued and unpaid Interest, any accrued and unpaid
Contingent Interest, if any, and accrued and unpaid Liquidated Damages, if any,
in respect of the Securities held by such Holder, on or after the respective
due dates expressed in the Securities or any Redemption Date or Fundamental
Change Repurchase Date, and to convert the Securities in accordance with Article 10,
or to bring suit for the enforcement of any such payment or the right to
convert on or after such respective dates, shall not be impaired or affected
adversely without the consent of such Holder.


 


Section 6.08.                             Collection Suit by Trustee. 
If an Event of Default described in clauses (a) through
(e) (other
than (b)) of Section 6.01 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 entire amount owing with respect to the Securities and the
amounts provided for in Section 7.07.


 


Section 6.09.                             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 (other than its
Subsidiaries) or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount of the Securities and any accrued and unpaid
Interest, accrued and unpaid Contingent Interest, if any, and accrued and
unpaid Liquidated Damages, 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:


 


37





















 


(a)                                  to
file and prove a claim for the whole principal amount of the Securities and any
accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if
any, and accrued and unpaid Liquidated Damages, if any, and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel or
any other amounts due the Trustee under Section 7.07) 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
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.07.


 


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.


 


The Company agrees not to object to the Trustee
participating as a member of any official committee of creditors of the Company
as it deems necessary or advisable.


 


Section 6.10.                             Priorities.  Any money
collected by the Trustee pursuant to this Article 6, and, after an Event
of Default, any money or other property distributable in respect of the Company’s
obligations under this Indenture, shall be paid out in the following order:


 


FIRST:  to the Trustee (including any predecessor
Trustee) for amounts due under Section 7.07;


 


SECOND:  to the Securityholders for amounts due and
unpaid on the Securities for the principal amount of the Securities and any
accrued and unpaid Interest, any accrued and unpaid Contingent Interest, if
any, and accrued and unpaid Liquidated Damages, 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


 


38





















 


may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in the suit, having due regard to the merits and good faith
of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate principal amount of the 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.


 


Section 6.12.                             Waiver of Stay, Extension or Usury Laws.  The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law 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 of the Securities and any accrued and
unpaid Interest, any accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, on Securities, 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 shall
not hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.


 


ARTICLE 7

Trustee


 


Section 7.01.                             Duties of Trustee.


 


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


 


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


 


(i)                                     the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied duties shall be read into this
Indenture against the Trustee; and


 


(ii)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture, 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 be under a duty to examine such
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 7.01(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.


 


39





















 


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


 


(i)                                     this
Section 7.01(c) does not limit the effect of Sections 7.01(b) and
7.01(g);


 


(ii)                                  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


 


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


 


Subparagraphs (c)(i), (ii) and (iii) 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.


 


(d)                                 Every
provision of this Indenture that in any way relates to the Trustee is subject
to this Section 7.01.


 


(e)                                  The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.


 


(f)                                    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 (provided that any interest earned on money
held by the Trustee in trust hereunder shall be the property of the Company).


 


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


 


Section 7.02.                             Rights of Trustee. 
Subject to the provisions of Section 7.01:


 


(a)                                  the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document (whether in original
or facsimile form) 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, conclusively rely
upon an Officer’s Certificate;


 


40





















 


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


 


(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, during regular
business hours, 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)                                     [Reserved]


 


(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 Officer’s 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 Officer’s
Certificate may be signed by any person authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded; and


 


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(l)                                     the
permissive rights of the Trustee to take certain actions under this Indenture
shall not be construed as a duty unless so specified herein.


 


Section 7.03.                             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 Section 7.10
and Section 7.11.


 


Section 7.04.                             Trustee’s Disclaimer. 
The Trustee makes no representation as to, and shall have no
responsibility for, the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use or application by
the Company of the Securities or of the proceeds from the Securities, it shall
not be responsible for the correctness of 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 7.05.                             Notice of Defaults. 
If a Default or Event of Default occurs and if it is known to the
Trustee, the Trustee shall give to each Securityholder notice of the Default or
Event of Default within 90 days after it occurs or, if later, within 15 days
after it is known to the Trustee, unless such Default or Event of Default shall
have been cured or waived before the giving of such notice.  Notwithstanding the preceding sentence,
except in the case of a Default or Event of Default described in clauses (d) and
(e) of Section 6.01, 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 or Event of Default unless a
Responsible Officer of the Trustee has received written notice of such Default
or Event of Default, which notice specifically references this Indenture and
the Securities.


 


Section 7.06.                             Reports by Trustee to Holders.  Within 75 days after each December 31
beginning with December 31, 2005, the Trustee shall mail to each
Securityholder a brief report dated as of such December 31 that complies
with TIA Section 313(a),
if required by such Section 313(a).  The Trustee also shall comply with TIA Section 313(b).  Any reports required by this Section 7.06
shall be transmitted by mail to Securityholders pursuant to TIA Section 313(c).


 


A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
securities exchange, if any, on which the Securities are listed.  The Company agrees to notify the Trustee
promptly whenever the Securities become listed on any securities exchange and
of any delisting thereof.


 


Section 7.07.                             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


 


42





















 


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


 


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


 


To secure the Company’s payment obligations under this
Section 7.07, 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 of, or the Redemption Price, Fundamental Change
Repurchase Price, Interest, Contingent Interest or Liquidated Damages, if any,
as the case may be, on particular Securities.


 


The Company’s payment, reimbursement and indemnity
obligations pursuant to this Section 7.07 shall survive the satisfaction
and discharge of this Indenture, the resignation or removal of the Trustee and
the termination of this Indenture for any reason.  In addition to and without prejudice to its
rights hereunder, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(h) or Section 6.01(i),
the expenses, including the reasonable charges and expenses of its counsel and
the compensation for services payable pursuant to Section 7.07(a), are
intended to constitute expenses of administration under any applicable federal
or state bankruptcy, insolvency or similar laws.


 


For the purposes of this Section 7.07, the “Trustee”
shall include any predecessor Trustee; provided, however, that, except as may
be otherwise agreed among the parties, the negligence, willful misconduct or
bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.


 


Section 7.08.                             Replacement of Trustee. 
The Trustee may resign at any time by so notifying the Company;
provided, however, that no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.08.  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 in writing.  The Company shall remove the Trustee if:


 


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


 


(b)                                 the
Trustee is adjudged bankrupt or insolvent;


 


43





















 


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


 


(d)                                 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 7.07.


 


If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of 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.


 


So long as no Default or Event of Default shall have
occurred and be continuing, if the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee, effective as of a date at
least 60 days after delivery of such Resolution to the Trustee, and (ii) an
instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee in accordance with this Indenture, the Trustee shall be
deemed to have resigned as contemplated in this Section 7.08, the
successor Trustee shall be deemed to have been accepted as contemplated in this
Indenture, all as of such date, and all other provisions of this Indenture
shall be applicable to such resignation, appointment and acceptance.


 


Section 7.09.                             Successor Trustee by Merger. 
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
Person, the resulting, surviving or transferee Person without any further act
shall be the successor Trustee, subject to Sections 7.10 and 7.11.


 


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 any 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 Commission the application referred to in the
penultimate paragraph of TIA Section 310(b).


 


44





















 


Section 7.11.                             Preferential Collection of Claims Against the 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 8

Discharge of Indenture


 


Section 8.01.                             Discharge of Liability on Securities.  When (i) the Company causes to be
delivered to the Trustee all outstanding Securities (other than Securities
replaced or repaid pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits
with the Trustee cash sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section 2.07),
and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 7.07, cease to be
of further effect.  The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officer’s Certificate.


 


Section 8.02.                             Repayment to the Company. 
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable abandoned 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 and the Trustee and the Paying
Agent shall have no further liability to the Securityholders with respect to
such money or securities for that period commencing after the return thereof.


 


Section 8.03.                             Application of Trust Money. 
The Trustee shall hold in trust all money and other consideration
deposited with it pursuant to Section 8.01 and shall apply such deposited
money and other consideration through the Paying Agent and in accordance with
this Indenture to the payment of amounts due on the Securities.  Money and other consideration so held in
trust is subject to the Trustee’s rights under Section 7.07.


 


ARTICLE 9

Amendments


 


Section 9.01.                             Without Consent of the Holders.  The Company and the Trustee may modify or
amend this Indenture or the Securities without the consent of any
Securityholder to:


 


(a)                                  add
guarantees with respect to the Securities;


 


(b)                                 remove
any guarantee added to the Securities pursuant to clause (a) above, unless
such guarantee is required pursuant to Section 5.01(a);


 


(c)                                  to
conform, as necessary, this Indenture and the Securities to the “Description of
Notes” as set forth in the Offering Memorandum;


 


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


 


45





















 


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


 


(f)                                    provide
for conversion rights of the Holders of Securities if 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;


 


(g)                                 provide
for the assumption by a successor Person of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof;


 


(h)                                 provide
for uncertificated Securities in addition to or in place of Certificated
Securities; provided, however, that uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the
Code or in a manner such that uncertificated Securities are described in Section 163(f)(2)(B) of
the Code;


 


(i)                                     change
the Conversion Rate in accordance with this Indenture; provided, however, that
any increase in the Conversion Rate 
other than pursuant to Article 10 shall not adversely affect the
interests of the Holders of Securities (after taking into account U.S. federal
income tax and other consequences of such increase);


 


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


 


(k)                                  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, however, that any 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) and the Trustee, adversely affect the
interests of the Holders of Securities in any material respect;


 


(l)                                     cure
any ambiguity or to correct or supplement any provision herein which may be
inconsistent with any other provision herein or which is otherwise defective; provided,
however, that any 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) and the Trustee, adversely affect the interests of the Holders of
Securities in any material respect;


 


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


 


(n)                                 establish
the form of Securities if issued in definitive form (substantially in the form
of Exhibit B); or


 


(o)                                 evidence
and provide for the acceptance of the appointment under this Indenture of a
successor Trustee in accordance with the terms of this Indenture.


 


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Section 9.02.                             With Consent of Holders. 
Except as provided below in this Section 9.02 and in Section 9.01,
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 of Securities affected thereby, an amendment, supplement or waiver
under this Section 9.02 may not:


 


(a)                                  reduce
the principal amount of or change the maturity of any Security, or the payment
date of any installment of Interest, Contingent Interest or Liquidated Damages
payable on any Security;


 


(b)                                 reduce
the Redemption Price or Fundamental Change Repurchase Price of any Security or
change the time at which or circumstances under which the Securities may be
redeemed or repurchased;


 


(c)                                  change
the currency of payment of such Securities or Interest, Contingent Interest,
Liquidated Damages, Redemption Price or Fundamental Change Repurchase Price
thereon;


 


(d)                                 alter
the manner of calculation or rate of accrual of Interest, Contingent Interest
or Liquidated Damages, or extend the time for payment of any such amount or the
Redemption Price or Fundamental Change Repurchase Price of any Security;


 


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


 


(f)                                    adversely
affect the repurchase option 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 10, except as otherwise permitted pursuant to Article 5
or Section 10.05 hereof;


 


(g)                                 modify
the redemption provisions of Article 3 in a manner adverse to the Holders
of the Securities;


 


(h)                                 change
the Company’s obligation to maintain an office or agency in the places and for
the purposes specified in this Indenture;


 


(i)                                     modify
any of the provisions of this Section, or reduce the percentage of the
aggregate principal amount of outstanding Securities required to amend, modify
or supplement the Indenture or the Securities or waive an Event of 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


 


(j)                                     reduce
the percentage of the aggregate principal amount of the outstanding Securities
the consent of whose Holders is required for any such supplemental indenture
entered into in accordance with this Section 9.02 or the consent of whose
Holders is required for any waiver provided for in this Indenture.


 


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


 


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


 


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


 


Section 9.04.                             Revocation and Effect of Consents, Waivers and Actions.  Until an amendment, waiver or other action by
the Holders becomes effective, a consent thereto by a Holder of a Security
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 9.05.                             Notice of Amendments, Notation on or Exchange of Securities.  Securities authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article 9
may, and shall if required by the Company, bear a notation in form approved by
the Company 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.


 


The Trustee shall hold in trust all money and other
consideration deposited with it pursuant to Section 8.01 and shall apply
such deposited money and other consideration through the Paying Agent and in
accordance with this Indenture to the payment of amounts due on the
Securities.  Money and other
consideration so held in trust is subject to the Trustee’s rights under Section 7.07.


 


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


 


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


 


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ARTICLE 10

Conversions


 


Section 10.01.                       Conversion Privilege. 
(a)  Subject to and upon compliance with the provisions of this Article 10,
a Holder of a Security shall have the right, at such Holder’s option, to
convert all or any portion (provided the portion to be converted is $1,000
principal amount or an integral multiple thereof) of such Security prior to the
close of business on the Business Day immediately preceding Stated Maturity
into cash and shares of Common Stock, if any, at the Conversion Rate (the “Conversion Obligation”) in effect on the date of conversion
only as follows:


 


(1)                                  during
any fiscal quarter of the Company (a “Fiscal Quarter”)
commencing after December 31, 2005 (and only during such Fiscal Quarter),
if the Last Reported Sale Price of the Common Stock for at least 20 Trading
Days during the period of 30 consecutive Trading Days ending on the last
Trading Day of the immediately preceding Fiscal Quarter is greater than or
equal to 130% of the Conversion Price in effect on such last Trading Day;


 


(2)                                  at
any time prior to the close of business on the Business Day immediately
preceding the Redemption Date, if the Company has called the Securities for
redemption pursuant to Article 3 hereof, even if the Securities are not
otherwise convertible at that time;


 


(3)                                  as
provided in clause (b) of this Section 10.01;
or


 


(4)                                  at
any time on or after November 1, 2035.


 


The Company or, at its option, the Conversion Agent on
behalf of the Company, shall determine on a daily basis during the time periods
specified in Section 10.01(a)(1) whether the Securities shall be
convertible as a result of the occurrence of an event specified in such
Sections and, if the Securities shall be so convertible, the Company or the
Conversion Agent, as applicable, shall promptly deliver to the Trustee and
Conversion Agent or the Company, as applicable, written notice thereof.  Whenever the Securities shall become
convertible pursuant to this Section 10.01 (as determined in accordance
with this Section 10.01), the Company shall promptly disseminate a press
release through Dow Jones & Company, Inc. or Bloomberg Business
News and publish such information on the Company’s Website or through another
public medium the Company may use at that time. 
Any notice so given shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice.


 


(b)                                 In
the event that:


 


(1)                                  (A) the
Company distributes to all holders of Common Stock rights or warrants entitling
them to purchase, for a period expiring within 60 days after the date of such
distribution, Common Stock at less than the Last Reported Sale Price of the
Common Stock on the Trading Day immediately preceding the announcement date for
such distribution; or (B) the Company distributes to all holders of Common
Stock assets (including cash), debt securities or rights or warrants to
purchase the Company’s securities, which distribution has a per share


 


49





















 


value as determined by the Board of Directors
exceeding 15% of the Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding the announcement date of such distribution,
then, in either 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
distribution, which shall be not less than 20 Business Days prior to the
Ex-Dividend Date for such distribution, until the earlier of the close of
business on the Business Day immediately preceding the Ex-Dividend Date or the
date the Company announces that such distribution shall not take place, even if
the Securities are not otherwise convertible at such time; provided, that no Holder of a Security
shall have the right to convert if the Holder may otherwise participate in such
distribution without conversion;


 


(2)                                  a
Change of Control occurs pursuant to clause (1) of the definition thereof
set forth above or clause (3) of the definition thereof set forth above
pursuant to which the Common Stock is to be converted into cash, securities or
other property, regardless of whether a Holder has the right to require us to
repurchase the Securities as described under Section 3.08, then the
Securities may be surrendered for conversion at any time from and after the
date which is 15 days prior to the anticipated effective date of such
transaction until 15 days after the actual effective date of such transaction
(or, if such transaction also constitutes a Fundamental Change pursuant to
which Holders have a right to require the Company to repurchase the Securities
pursuant to Section 3.08, until the Business Day immediately preceding the
applicable Fundamental Change Repurchase Date). 
The Company shall notify the Holders and the Trustee at the time the
Company publicly announces the Change of Control transaction giving rise to the
above conversion right (but in no event less than 15 days prior to the
effective date of such transaction).  If
the Company engages in any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value) or
is party to a consolidation, merger, binding share exchange or transfer of all
or substantially all of its assets pursuant to which Holders of Common Stock
would be entitled to receive cash, securities or other property, then at the
effective time of such transaction, to the extent that it constitutes a Change
of Control as described in this paragraph above as giving rise to a conversion
right, the Conversion Obligation and the Conversion Settlement Distribution
shall be based on the applicable Conversion Rate and the kind and amount of
cash, securities or other property that a holder of one share of the Common
Stock would have received in such transaction (such property, collectively, the
“Exchange Property”).  In addition, if a Holder converts Securities
following the effective time of any such transaction, any amounts of the
Conversion Settlement Distribution to be settled in shares of Common Stock
shall be paid in such Exchange Property rather than shares of Common
Stock.  A Holder can require the Company
to repurchase all or a portion of its Securities pursuant to Section 3.08
or, subject to the terms and conditions of Section 10.01(c), if such
Holder elects, instead, to convert all or a portion of its Securities, such
Holder shall receive Additional Shares upon conversion; or


 


50





















 


(3)                                  a
Fundamental Change occurs pursuant to clause (ii) or (iii) of the
definition thereof set forth in Section 3.08(a), regardless of whether a
Holder has the right to require us to repurchase the Securities as described
under Section 3.08, then the Securities may be surrendered for conversion
at any time from and after the date which is 15 days prior to the anticipated
effective date of such event until 15 days after the actual effective date of
such event (or, if such event also constitutes a Fundamental Change pursuant to
which Holders have a right to require the Company to repurchase the Securities
pursuant to Section 3.08, until the Business Day immediately preceding the
applicable Fundamental Change Repurchase Date). 
The Company shall notify the Holders and the Trustee at the time the
Company publicly announces the Fundamental Change event giving rise to the
above conversion right (but in no event less than 15 days prior to the effective
date of such event).  A Holder can
require the Company to repurchase all or a portion of its Securities pursuant
to Section 3.08 or, subject to the terms and conditions of Section 10.01(c),
if such Holder elects, instead, to convert all or a portion of its Securities,
such Holder shall receive Additional Shares upon conversion.


 


(c)                                  If
and only to the extent a Holder timely elects to convert Securities in
connection with either (A) a Change of Control specified in Section 10.01(b)(2) that
occurs on or prior to November 30, 2015, and more than 10% of the
consideration for the Common Stock in such Change of Control transaction
consists of consideration other than common stock traded or scheduled to be
traded immediately following such transaction on a U.S. national securities
exchange or the Nasdaq National Market, or (B) a Fundamental Change as
specified in Section 10.01(b)(3) that occurs on or prior to November 30,
2015, then, in either case, regardless of whether a Holder has the right to
require us to repurchase the Securities as described under Section 3.08, the
Conversion Rate shall be increased by an additional number of shares of Common
Stock (the “Additional Shares”) as
described below; provided, that, if the Stock Price paid in connection with
such transaction is greater than $125.00 or less than $44.03 (subject in each
case to adjustment as described below), no Additional Shares shall be added to
the Conversion Rate.  Notwithstanding
this Section 10.01(c), if the Company elects to adjust the Conversion Rate
pursuant to Section 10.01(d), the provisions of Section 10.01(d) shall
apply in lieu of the provisions of this Section 10.01(c).  The Company shall notify Holders, at least 20
days prior to the anticipated effective date of such transaction causing any
increase of the Conversion Rate pursuant to this Section 10.01(c), whether
the Company elects to increase the Conversion Rate as described above or to
adjust the Conversion Rate pursuant to Section 10.01(d).


 


The number of Additional Shares to be added to the
Conversion Rate as described in the immediately preceding paragraph shall be
determined by reference to the table attached as Schedule I hereto, based
on the effective date of such Change of Control transaction specified in Section 10.01(b)(2) and
the Stock Price paid in connection with such transaction and the effective date
of such Fundamental Change event specified in Section 10.01(b)(3) and
the Stock Price at the effective time of such event; provided, that, if the Stock Price is
between two Stock Price amounts in the table or such effective date is between
two effective dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Price amounts and the two
dates, as applicable, based on a 360-day year. 
The “effective date” with
respect to a Change of


 


51





















 


Control transaction
specified in Section 10.01(b)(2) and a Fundamental Change event
specified in Section 10.01(b)(3) means the date that such transaction
or event becomes effective.


 


With respect to any Securities tendered for conversion
to which Additional Shares apply, any shares of Common Stock to be delivered
upon conversion of such Securities pursuant to Section 10.02 shall be
delivered to Holders who elect to convert their Securities on the third
Business Day following the date the settlement amount is determined.


 


The Stock Prices set forth in the first row of the table
in Schedule I hereto shall be adjusted as of any date on which the
Conversion Rate of the Securities is adjusted pursuant to Section 10.04.  The adjusted Stock Prices shall equal the
Stock Prices applicable immediately prior to such adjustment, multiplied by a
fraction, the numerator of which is the Conversion Rate immediately prior to
the adjustment giving rise to the Stock Price adjustment and the denominator of
which is the Conversion Rate as so adjusted. 
The number of Additional Shares shall be adjusted in the same manner as
the Conversion Rate as set forth in Section 10.04.


 


Notwithstanding the foregoing, in no event shall the
total number of shares of Common Stock issuable upon conversion of the
Securities exceed 22.7118 per $1,000 principal amount of Securities, subject to
adjustments in the same manner as the Conversion Rate as set forth in Section 10.04.


 


(d)                                 Notwithstanding
the provisions of Section 10.01(c), in the case of a Change of Control
that would lead to the issuance of Additional Shares as set forth in clause (c) above
that is also a Public Acquirer Change of Control, the Company may, in lieu of
increasing the Conversion Rate by Additional Shares as described in Section 10.01(c),
elect to adjust the Conversion Rate and the related Conversion Obligation such
that from and after the effective date of such Public Acquirer Change of
Control, Holders of Securities shall be entitled to convert their Securities
(subject to the satisfaction of the conditions to conversion set forth in Section 10.01(a))
into Public Acquirer Common Stock.  The
Conversion Rate following the effective date of such transaction will be a
number of shares of Public Acquirer Common Stock equal to the product of the
Conversion Rate in effect immediately before the Public Acquirer Change of
Control times the average of the quotients obtained, for each Trading Day in
the 10 consecutive Trading Day period ending on the Trading Day immediately
preceding the effective date of such Public Acquirer Change of Control (the “Valuation Period”), of:


 


(i) the Acquisition Value of our Common Stock on
each such Trading Day in the Valuation Period, divided by


 


(ii) the Last Reported Sale Price of the Public
Acquirer Common Stock on each such Trading Day in the Valuation Period.


 


The “Acquisition
Value” of the Common Stock means, for each Trading Day in the
Valuation Period, the value of the consideration paid per share of Common Stock
in connection with such Public Acquirer Change of Control, as follows:


 


(i) for any cash, 100% of the face amount of such
cash;


 


52





















 


(ii) for any Public Acquirer Common Stock, 100%
of the Last  Reported Sale Price of such
Public Acquirer Common Stock on such trading day; and


 


(iii) for any other securities, assets or
property, the fair market value of such security, asset or property on such
Trading Day, as determined by the Board of Directors.


 


“Public Acquirer
Change of Control” means an event constituting a corporate
transaction that would otherwise obligate the Company to increase the
Conversion Rate as described in Section 10.01(c) and the acquirer,
the Person formed by or surviving the merger or consolidation or any entity
that is direct or indirect “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act) of more than 50% of such Person’s or Acquirer’s Voting
Stock has a class of common stock traded on a national securities exchange or
quoted on a U.S. national securities exchange or quoted on the National
Association of Securities Dealers Automated Quotation System or which shall be
so traded or quoted when issued or exchanged in connection with such
Fundamental Change (the “Public Acquirer
Common Stock”); provided, that, if, there is more than one of such
entity, the relevant entity shall be such entity with the most direct
beneficial ownership to such acquirer’s or Person’s capital stock.


 


Upon a Public Acquirer Change of Control, if the
Company so elects, the Holders may convert their Securities (subject to the
satisfaction of the conditions to conversion set forth in Section 10.01(a))
at the adjusted Conversion Rate described above, but shall not be entitled to
the increased Conversion Rate described in Section 10.01(c).  The Company shall notify the Holders of its
election in its notice to the Holders pursuant to Section 10.01(b)(2) above.  The Holders may convert their Securities upon
a Public Acquirer Change of Control during the period specified in Section 10.01(b)(2).  In addition, the Holders can also, subject to
certain conditions, require the Company to repurchase all or a portion of their
Securities as described in Section 3.08.


 


After any adjustment of the Conversion Rate in
connection with a Public Acquirer Change of Control, the Conversion Rate shall
be subject to further similar adjustments in the event that any of the events
described in Section 10.03(a)(i) occur thereafter.


 


Section 10.02.                       Conversion Procedure; Conversion Rate; Fractional Shares.  (a)  Subject to Section 10.01 and
the Company’s rights under Section 10.03, each Security shall be
convertible at the office of the Conversion Agent into a combination of cash
and fully paid and nonassessable shares (calculated to the nearest 1/10,000th
of a share) of Common Stock, if any at a rate (the “Conversion
Rate”) equal to, initially, 18.9265 shares of Common Stock for each
$1,000 principal amount of Securities. 
The Conversion Rate shall be adjusted in certain instances as provided
in Section 10.04 hereof, but shall not be adjusted for any accrued and
unpaid Interest, Contingent Interest, or Liquidated Damages, if any.  Upon conversion, no payment shall be made by
the Company with respect to any accrued and unpaid Interest, including
Contingent Interest, if any.  Instead,
such amount shall be deemed paid by the applicable Conversion Settlement
Distribution delivered upon conversion of any Security.  In addition, no payment or adjustment shall
be made in respect of dividends on the Common Stock with a record date prior to
the Conversion Date.  Notwithstanding the
foregoing, upon conversion, a Holder shall receive any accrued and unpaid
Liquidated Damages to the


 


53





















 


Conversion
Date.  The Company shall not issue any
fraction of a share of Common Stock in connection with any conversion of Securities,
but instead shall, subject to Section 10.03 hereof, make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the Last
Reported Sale Price of the Common Stock on the Trading Day prior to the
Conversion Date.


 


(b)                                 Before
any Holder of a Security shall be entitled to convert the same into a
combination of cash and Common Stock, if any, such Holder shall (1) in the
case of Global Securities, comply with the procedures of the Depositary in
effect at that time for converting a beneficial interest in a Global Security,
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
(2) give written notice to the Company in the form on the reverse of such
Certificated Security (the “Conversion Notice”)
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 included in the Conversion Settlement
Distribution, if any, to be registered.


 


Before any such conversion, a Holder also shall pay
all taxes or duties, if any, as provided in Section 10.06 and any amount
payable pursuant to Section 10.02(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, if any, that shall be deliverable upon conversion as part of the
Conversion Settlement Distribution 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.


 


(c)                                  A
Security shall be deemed to have been converted as of the close of business on
the date (the “Conversion Date”) that the Holder
has complied with Section 10.02(b).


 


(d)                                 The
Company shall, on the Conversion Settlement Date, (i) pay the cash
component (including cash in lieu of any fraction of a share to which such
Holder would otherwise be entitled) of the Conversion Obligation determined
pursuant to Section 10.03 to the Holder of a Security surrendered for
conversion, or such Holder’s nominee or nominees, and (ii) issue, or cause
to be issued, and deliver to the Conversion Agent or to such Holder, or such
Holder’s nominee or nominees, certificates for the number of full shares of
Common Stock, if any, to which such Holder shall be entitled as part of such
Conversion Obligation.  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, and the Person or Persons entitled to receive the Common
Stock as part of the applicable Conversion Settlement Distribution 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 the applicable Conversion
Settlement Date.


 


(e)                                  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


 


54





















 


of Section 10.06
hereof), a new Security or Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Securities.


 


(f)                                    By
delivering the combination of cash and shares of Common Stock, if any, together
with a cash payment in lieu of any fractional shares to the Conversion Agent or
to the Holder or such Holder’s nominee or nominees, the Company shall have
satisfied in full its Conversion Obligation with respect to such Security, and
upon such delivery, accrued and unpaid Interest, if any, and Contingent Interest,
if any, with respect to such Security shall be deemed to be paid in full rather
than canceled, extinguished or forfeited, and such amounts shall no longer
accrue.


 


(g)                                 If
a Securityholder delivers a Conversion Notice after the Interest Record Date
for a payment of Interest (including Contingent Interest, if any), but prior to
the corresponding Interest Payment Date, such Securityholder must pay to the
Company, at the time such Securityholder surrenders Securities for conversion,
an amount equal to the Interest (including Contingent Interest, if any, and
excluding, for the avoidance of doubt, Liquidated Damages, if any), that has
accrued and shall be paid on the related Interest Payment Date.  The preceding sentence shall not apply if (1) the
Company has specified a Redemption Date that is after an Interest Record Date,
but on or prior to the corresponding Interest Payment Date, (2) the
Company has specified a Fundamental Change Repurchase Date during such period
referred to in clause (1) of this paragraph or (3) if any overdue
Interest exists at the time of conversion with respect to the Securities
converted.


 


Section 10.03.                       Payment Upon Conversion. 
(a) Upon conversion of Securities, the Company shall deliver to
Holders surrendering Securities for conversion, for each $1,000 principal
amount of Securities, a settlement amount (the “Conversion Settlement Distribution”) on the Conversion
Settlement Date consisting of:


 


(i)                                     cash
amount (the “Cash Amount”) equal to the lesser
of $1,000 and the Conversion Value; and


 


(ii)                                  to
the extent the Conversion Value exceeds $1,000, a number of shares of Common
Stock (the “Residual Value Shares”)
equal to the sum of the Daily Share Amounts for each Trading Day of the
Conversion Reference Period, subject to the Company’s right to deliver cash in
lieu of all or a portion of such Residual Value Shares.


 


The “Daily Share
Amount” means a number of shares equal to the quotient of:


 


(I)(A) the
product of (x) the Last Reported Sale Price on that Trading Day, multiplied by
(y) the Conversion Rate in effect on the Conversion Date, minus (B) $1,000,
divided by


 


(II)
the product of (A) Last Reported Sale Price on that Trading Day,
multiplied by (B) 30.


 


Notwithstanding the foregoing, the Company may elect
to pay cash to the Holders of the Securities surrendered for conversion in lieu
of all or a portion of the Residual Value Shares issuable upon conversion of
such Securities.  If the Company elects
to pay cash for all or a


 


55





















 


portion of the Residual
Value Shares in lieu of delivery of the Common Stock, it shall inform the
Holders who have surrendered their Securities for conversion through the
Trustee of the dollar amount to be satisfied in cash (expressed as a percentage
of each Residual Value Share that will be paid in cash in lieu of shares of the
Common Stock) at any time on or before the date that is three (3) Business
Days following the Company’s receipt of such Conversion Notice (“Cash Settlement Notice Period”), unless the
Company has already informed the Holders of its election in connection with an
optional redemption of the Securities under Section 3.01.  If the Company timely elects to pay cash for
any portion of the shares of Common Stock otherwise issuable to the Holders of
the Securities, each Holder may retract its respective Conversion Notice at any
time during the two Business Day period immediately following the Cash
Settlement Notice Period (the “Conversion
Retraction Period”).  If the
Company does not make such an election, no such retraction can be made (and a
Conversion Notice shall be irrevocable). 
The amount of cash payable to the Holders in respect of each Residual
Value Share otherwise issuable upon conversion shall equal the sum of the
Residual Cash Value (as defined below) for such share of Common Stock
calculated for each day of the Conversion Reference Period.  The “Residual
Cash Value” for each date shall be the product of (1) the
percentage of each Residual Value Share otherwise issuable upon conversion that
the Company elects to pay in cash, multiplied by (2) the cash value of the
Daily Share Amount for such date.  The
cash value of the Daily Share Amount shall be an amount equal to the product of
(A) the Daily Share Amount for such date, multiplied by (B) the Last
Reported Sale Price of the Common Stock for such date.


 


The Company shall not issue fractional shares of
Common Stock upon conversion of the Securities. 
Instead, the Company shall pay the cash value of such fractional shares
based upon the Last Reported Sale Price of the Common Stock on the Trading Day
immediately preceding the Conversion Date. 
In addition, if the Company chooses to settle all or any portion of the
Residual Value Shares in cash in connection with conversions within 30 days
prior to the Stated Maturity or a specified Redemption Date, the Company shall
send, on or prior to Stated Maturity or the specified Redemption Date, as the
case may be, a single notice to the Trustee of the Residual Value Shares to be
satisfied in cash.


 


The “Conversion Value”
means the product of (1) the Conversion Rate in effect (plus any
Additional Shares as described under Section 10.01(c)) and (2) the
average of the Last Reported Sale Prices of the Common Stock for the Trading
Days during the Conversion Reference Period.


 


The “Conversion
Reference Period” with respect to any Securities means the 30
consecutive Trading Days beginning on the second Trading Day after the
Conversion Date, or if the Company elects to pay cash to Holders in lieu of all
or a portion of the Residual Value Shares, the second Trading Day after the
Conversion Retraction Period ends, except in circumstances where conversions
occur within 30 days prior to the Stated Maturity or a specified Redemption
Date, in which case the Conversion Reference Period will be the 30 consecutive
Trading Days beginning on the fifth Trading Day following the Stated Maturity
or the Redemption Date, as the case may be.


 


(b)                                 If
a Holder tenders Securities for conversion and the Conversion Value is being
determined at a time when the Securities are convertible into Exchange
Property, the Conversion


 


56





















 


Value of each
Security shall be determined based on the kind and amount of such Exchange
Property and the value thereof during the Conversion Reference Period.  Settlement of Securities tendered for
conversion after the effective date of any transaction giving rise to Exchange
Property shall be as set forth above.


 


For the purposes of this Section, the Last Reported Sale
Price of the Common Stock shall be deemed to equal the sum of (A) 100% of
the value of any Exchange Property consisting of cash received per share of
Common Stock, (B) the Last Reported Sale Price of any Exchange Property
received per share of Common Stock consisting of securities that are traded on
a U.S. national securities exchange or approved for quotation on the Nasdaq
National Market and (C) the Fair Market Value of any other Exchange
Property received per share, as determined by two independent nationally
recognized investment banks selected by the Company for this purpose.  Settlement (in cash and/or shares) will occur
on the third Business Day following the date the settlement amount is
determined.


 


Section 10.04.                       Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company in accordance with this Section 10.04:


 


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


 


(i)                                     the
numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus (B) the total number of shares of Common Stock
constituting the dividend or distribution, and


 


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


 


such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination.  If any dividend or
distribution of the type described in this Section 10.04 is declared, but
not so paid or made, the Conversion Rate shall again be adjusted to the
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.


 


(b)                                 In
case the Company shall issue rights, warrants or options to all holders of its
outstanding shares of Common Stock entitling them (for a period expiring within
60 days after the date of such distribution) to subscribe for or purchase
shares of Common Stock at a price per share less than the Last Reported Sale
Price of the Common Stock on the day prior to the date upon which such distribution
was publicly announced so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date fixed
for determination of stockholders entitled to receive such rights or warrants
by a fraction,


 


(i)                                     the
numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the date fixed for determination of stockholders entitled
to


 


57





















 


receive such rights or warrants plus (B) the
total number of additional shares of Common Stock offered for subscription or
purchase, and


 


(ii)                                  the
denominator of which is the sum of (A) the number of shares of Common
Stock outstanding on the date fixed for determination of stockholders entitled
to receive such rights or warrants plus (B) the total number of additional
shares of Common Stock that the aggregate offering price of the total number of
shares of Common Stock offered for subscription or purchase would purchase at
the Last Reported Sale Price of the Common Stock on such date.


 


Such adjustment shall be successively made whenever
any such rights or warrants are issued, and shall become effective immediately
after the opening of business on the day following the date fixed for
determination of stockholders entitled to receive such rights or warrants.  To the extent that shares of Common Stock are
not delivered after the expiration of such rights or warrants, the Conversion
Rate shall be readjusted to the Conversion Rate that would then be in effect
had the adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of 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 that would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed.  In the event that the
Holders of the Securities are entitled to participate in the distribution on
substantially the same terms as holders of the Common Stock as if such Holders
of the Securities had converted their Securities solely into shares of Common
Stock immediately prior to such distribution at the then applicable Conversion
Rate, then no adjustment pursuant to this Section 10.04(b) shall be
made.  In determining whether any rights,
options or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Last Reported Sale Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Company for such rights or
warrants and any amount payable on exercise or conversion thereof, the value of
such consideration, if other than cash, to be determined by the Board of
Directors.


 


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


 


(d)                                 In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of Capital Stock of the Company or
evidences of its indebtedness or assets (including securities, but excluding
any rights, options or warrants referred to in Section 10.04(b) and
excluding any dividend or distribution (x) paid exclusively in cash or (y)
referred to in Section 10.04(a)) (any of the foregoing
hereinafter in this Section 10.04(d) called the “Distributed
Assets”), then, in each such case, the Conversion Rate shall be


 


58





















 


increased so that
the same shall be equal to the rate determined by multiplying the Conversion
Rate in effect on the Record Date with respect to such distribution by a
fraction,


 


(i)                                     the
numerator of which shall be the Current Market Price per share of the Common
Stock on such Record Date with respect to such distribution, and


 


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


 


such adjustment to become effective immediately prior
to the opening of business on the day following such Record Date; provided,
however, that in the event (1) the then Fair Market Value (as so
determined) of the portion of the Distributed Assets so distributed applicable
to one share of Common Stock is equal to or greater than the Current Market Price
of the Common Stock on such Record Date or (2) the Current Market Price of
Common Stock on the Record Date exceeds the then Fair Market Value (as so
determined) of the portion of the Distributed Assets so distributed applicable
to one share of Common Stock by less than $1.00, 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 Distributed Assets such Holder
would have received had such Holder converted each Security on the Record Date
for such distribution.  In the event that
such dividend or distribution is not so paid or made, the Conversion Rate shall
be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. 
If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 10.04(d) by reference to
the actual or when issued trading market for any securities, it must in doing
so consider the prices in such market over the same period used in computing
the Current Market Price of the Common Stock. 
Notwithstanding anything herein to the contrary, no adjustment to the
Conversion Rate will be made pursuant to this Section 10.04(d) if the
Holders of the Securities are entitled to participate in the distribution on
substantially the same terms as holders of the Common Stock as if such Holders
of the Securities had converted their Securities solely into shares of Common
Stock immediately prior to such distribution at the then applicable Conversion
Rate.


 


Rights or warrants distributed by the Company to all
holders of Common Stock entitling the Holders thereof to subscribe for or
purchase shares of the Company’s Capital Stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”):
(i) are deemed to be transferred with such shares of Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future issuances
of Common Stock, shall be deemed not to have been distributed for purposes of
this Section 10.04 (and no adjustment to the Conversion Rate under this Section 10.04
shall be required) until the occurrence of the earliest Trigger Event,
whereupon such rights and warrants shall be deemed to have been distributed and
an appropriate adjustment (if any is required) to the Conversion Rate shall be
made under this Section 10.04.  If
any such right or warrant, including any such existing rights or warrants distributed
prior to the date of this Indenture, are subject to events, upon the occurrence
of which such rights or warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the date of the
occurrence of any and each such


 


59





















 


event shall be deemed to
be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders thereof).  In addition, in the event of any distribution
(or deemed distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 10.04 was made, (1) in
the case of any such rights or warrants that shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or repurchase, and (2) in
the case of such rights or warrants that shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights and warrants had not been issued.


 


No adjustment of the Conversion Rate shall be made
pursuant to this Section 10.04(d) in respect of rights or warrants
distributed or deemed distributed on any Trigger Event to the extent that such
rights or warrants are actually distributed, or reserved by the Company for
distribution to Holders of Securities upon conversion by such Holders of
Securities to Common Stock.


 


For purposes of this Section 10.04(d) and Section 10.04(a) and
Section 10.04(b), any dividend or distribution to which this Section 10.04(d) is
applicable that also includes shares of Common Stock, or rights or warrants to
subscribe for or purchase shares of Common Stock (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets or shares of capital stock other than such shares of
Common Stock or rights or warrants (and any Conversion Rate adjustment required
by this Section 10.04(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (and any
further Conversion Rate adjustment required by Section 10.04(a) and Section 10.04(b) with
respect to such dividend or distribution shall then be made), except (A) the
Record Date of such dividend or distribution shall be substituted as “the date
fixed for the determination of stockholders entitled to receive such dividend
or other distribution,” “the date fixed for the determination of stockholders
entitled to receive such rights or warrants” and “the date fixed for such
determination” within the meaning of Section 10.04(a) and Section 10.04(b),
and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed “outstanding at the close of business on the
date fixed for such determination” within the meaning of Section 10.04(a).


 


If any Distributed Assets requiring any adjustment
pursuant to this Section 10.04(d) consists of the Capital Stock of,
or similar equity interests in, a Subsidiary or other business unit of the
Company that are or in connection with such distribution will be listed or
quoted for trading on a U.S. national securities exchange or the Nasdaq
National Market, the Conversion Rate in effect immediately before the close of
business on the Record Date fixed for determination of shareholders entitled to
receive the distribution shall instead be increased by multiplying the
Conversion Rate then in effect by a fraction, (A) the numerator of which
is the


 


60





















 


sum of (1) the
average of the Last Reported Sale Prices of such distributed security for the
10 Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date on the Nasdaq National Market or such other national or
regional exchange or market on which such securities are then listed or quoted
plus (2) the average of the Closing Prices of the Common Stock over the
same Trading Day period and (B) the denominator of which is such average
of the Last Reported Sale Prices of the Common Stock for the 10 Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date on
the Nasdaq National Market or such other national or regional exchange or
market on which the securities are then listed or quoted.


 


(e)                                  In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock cash (including without limitation any quarterly cash
dividends) (an “Extraordinary Cash Dividend”)
(excluding any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary),
then, in such case, the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the Record Date for such
Extraordinary Cash Dividend by a fraction,


 


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


 


(ii)                                  the
denominator of which shall be such Current Market Price of the Common Stock
minus the amount per share of such dividend or the amount of cash so
distributed applicable to one share of Common Stock,


 


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


 


(f)                                    In
case a tender or exchange offer, other than an odd-lot offer, made by the
Company, any Subsidiary or any Permitted Owner 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 stockholders 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 Last Reported Sale Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the Expiration Time by a
fraction,


 


61





















 


(i)                                     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 Last Reported Sale Price
of the Common Stock on the first Trading Day after the Expiration Time, and


 


(ii)                                  the
denominator of which shall be the product of the number of shares of Common
Stock outstanding (including any Purchased Shares) at the Expiration Time
multiplied by the Last Reported Sale Price of the Common Stock on the first
Trading Day after the Expiration Time,


 


such adjustment to become effective immediately prior
to the opening of business on the day following the Expiration Time.  In the event that 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)                                 The
Company may make such increases in the applicable Conversion Rate, in addition
to those required by this Section 10.04, as the Board of Directors considers
to be advisable to avoid or diminish any U.S. federal income tax to holders of
Common Stock resulting from any stock distribution; provided, however, that
such increase in the applicable Conversion Rate shall not adversely affect the
interests of the Holders of Securities (after taking into account U.S. federal
income tax and other consequences of such increase).


 


To the extent permitted by applicable law and the
listing requirements of the Nasdaq National Market or any national securities
exchange on which the Common Stock is then listed, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) days, the increase is irrevocable during the
period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive.  Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company
shall mail to the Holders of record of the Securities a notice of the increase
at least fifteen (15) days prior to the date the increased Conversion Rate
takes effect, and such notice shall state the increased Conversion Rate and the
period during which it shall be in effect.


 


(h)                                 All
calculations under this Article 10 shall be made by the Company and shall
be made to the nearest cent or to the nearest one-ten thousandth of a share, as
the case may be, with one half-cent and 0.005 of a share, respectively, being
rounded upward.  No adjustment to the
Conversion Rate shall be required (except in the case of Section 10.04(e))
unless the adjustment requires an increase or decrease of at least 1.0% of the
Conversion Rate.  However, any
adjustments which are not required to be made because they would have required
an increase or decrease of less than 1.0% shall be carried forward and be made
on the first to occur of (i) any subsequent adjustment, (ii) the
first day of the next calendar year and (iii) upon any conversion


 


62





















 


of the
Securities.  Notwithstanding the
foregoing, no adjustment need be made for any other reasons other than those
specified in Section 10.04(a)-(g), including the following:


 


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


 


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


 


(iii)                               the
issuance of any shares of Common Stock pursuant to any option, warrant, right
or exercisable, exchangeable or convertible security outstanding as of the date
the Securities were first issued; or


 


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


 


To the extent the Securities become convertible into
cash, assets, property or securities (other than Capital Stock of the Company),
no adjustment need be made thereafter as to the cash, assets, property or such
securities.


 


(i)                                     Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent (if other than the Trustee) an
Officer’s Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the
Trustee shall have received such Officer’s Certificate, the Trustee shall not
be deemed to have knowledge of any adjustment of the Conversion Rate and may
assume that the last Conversion Rate of which it has knowledge is still in
effect.  Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the Holder of each Security at its last address
appearing on the Security register provided for in Section 2.03 of this
Indenture, within twenty (20) days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


(j)                                     In
any case in which this Section 10.04 provides that an adjustment shall
become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled
to receive a dividend or distribution pursuant to Section 10.04(a), (3) a
date fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 10.04(b), (4) the effective date of any
subdivision or combination of Common Stock or (5) the Expiration Time for
any tender or exchange offer pursuant to Section 10.04(f) (each a “Determination Date”), the Company may elect
to defer until the occurrence of the relevant Adjustment Event (as hereinafter
defined) (x) issuing to the Holder of any Security converted after such
Determination Date and before the occurrence of such Adjustment Event, the
additional shares of Common Stock or other securities issuable upon such conversion
by reason of the adjustment required by such Adjustment Event over and above
the


 


63





















 


Common Stock
issuable upon such conversion before giving effect to such adjustment and (y)
paying to such Holder any amount in cash in lieu of any fraction pursuant to Section 10.04(a).
For purposes of this Section 10.04(j), the term “Adjustment Event” shall mean:


 


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


 


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


 


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


 


(iv)                              in
any case referred to in clause (4) hereof, the date of such subdivision or
combination, and


 


(v)                                 in
any case referred to in clause (5) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and
becomes irrevocable.


 


(k)                                  For
purposes of this Section 10.04, the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company, but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.  The Company shall not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.


 


Section 10.05.                       Effect of Reclassification, Consolidation, Merger or
Sale.  (a)  If any of the
following events occur, namely (i) any reclassification of the outstanding
shares of Common Stock (other than a subdivision or combination to which Section 10.04(c) applies
or a change in par value), (ii) any consolidation, merger, binding share
exchange or combination of the Company with another Person, or (iii) any
sale or conveyance of all or substantially all the properties and assets of the
Company to any other Person, in each case as a result of which holders of
Common Stock shall be entitled to receive Exchange Property with respect to or
in exchange for such Common Stock, then the Company or the successor or
purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) providing for
the conversion and settlement of the Securities as set forth in this
Indenture.  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 10.  If, in the case of any such reclassification,
change, merger, consolidation, binding share exchange, combination, sale or
conveyance, the Exchange Property 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.


 


64





















 


(b)                                 In
the event holders of Common Stock have any rights of election as to the kind or
amount of Exchange Property receivable upon such consolidation, merger, binding
share exchange, sale or conveyance, the Company shall make adequate provision
whereby the holders of the Securities shall have a reasonable opportunity to
determine the form of consideration, consistent with the election rights and
restrictions applicable to holders of Common Stock.  In such event, the Conversion Obligation with
respect to each $1,000 principal amount of Securities converted following the
effective date of any such transaction, shall be calculated (as provided in
clause (c) below) based on the Exchange Property elected by the Holders of
at least a majority of the principal amount of the Securities at the time
outstanding.  The Company shall not to
become a party to any such transaction unless its terms are consistent with the
foregoing.


 


(c)                                  The
Conversion Obligation in respect of any Securities converted following the
effective date of any such transaction shall be computed in the same manner as
set forth in Section 10.03(a) except that (1) the Conversion
Reference Period shall be the 10 Trading Day period beginning on the second
Trading Day after the Conversion Date (or, in the event the Conversion Date is
on the Business Day prior to the Stated Maturity, the 10 Trading Day period
beginning on the second Trading Day after the Stated Maturity), and (2) if
the Securities become convertible into Exchange Property, the Last Reported
Sale Price of the Common Stock shall be deemed to equal the sum of (A) 100%
of the value of any Exchange Property consisting of cash received per share of
Common Stock, (B) the Last Reported Sale Price of any Exchange Property
received per share of Common Stock consisting of securities that are traded on
a U.S. national securities exchange or approved for quotation on the Nasdaq
National Market and (C) the Fair Market Value of any other Exchange Property
received per share, as determined by two independent nationally recognized
investment banks selected by the Company for this purpose.  Settlement (in cash and/or shares) shall
occur on the third Business Day following the date the settlement amount is
determined, provided, that any amount of the Conversion Settlement Distribution
to be delivered in shares of Common Stock shall be paid in Exchange Property
rather than shares of Common Stock.  If
the Exchange Property includes more than one kind of property, the amount of
Exchange Property of each kind to be delivered shall be in the proportion that
the value of the Exchange Property (as calculated pursuant to Section 10.03)
of such kind bears to the value of all such Exchange Property.  If the foregoing calculations would require
the Company to deliver a fractional share or unit of Exchange Property to a
Holder of Securities being converted, the Company shall deliver cash in lieu of
such fractional share or unit based on the value of the Exchange Property.


 


(d)                                 The
Company shall cause notice of the execution of such supplemental indenture to
be mailed to each Holder of Securities, at its address appearing on the
Security register provided for in Section 2.03 of this Indenture, within
twenty (20) days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.


 


(e)                                  The
above provisions of this Section 10.05 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, statutory share exchanges,
combinations, sales and conveyances.


 


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


 


65





















 


Section 10.06.                       Taxes on Shares Issued.  The issue of stock certificates on conversions
of Securities shall be made without charge to the converting Holder for any tax
in respect of the issue thereof, except for applicable withholding, if any.  The Company shall not, however, be required
to pay any tax or duty which may be payable in respect of any transfer involved
in the issue and delivery of stock in any name other than that of the Holder of
any Securities converted, and the Company shall not be required to issue or
deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.


 


Section 10.07.                       Reservation of Shares, Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock.  (a)  The Company shall provide, free
from preemptive rights, out of its authorized but unissued shares or shares
held in treasury, sufficient shares of Common Stock for the conversion of the
Securities from time to time as such Securities are presented for conversion.


 


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


 


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


 


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


 


Section 10.08.                       Responsibility of Trustee.  The Trustee and any other Conversion Agent
shall not at any time be under any duty or responsibility to any Holder of
Securities to determine the Conversion Rate or whether any facts exist which
may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with respect
to the method employed, or herein or in any supplemental indenture provided to
be employed, in making the same.  The
Trustee and any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and the Trustee and any other Conversion
Agent make no representations with respect thereto.  Neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of


 


66





















 


any Security for
the purpose of conversion or to comply with any of the duties, responsibilities
or covenants of the Company contained in this Article 10.  Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 10.05 relating
either to the kind or amount of shares of stock or securities or property (including
cash) receivable by Holders upon the conversion of their Securities after any
event referred to in such Section 10.05 or to any adjustment to be made
with respect thereto, but, subject to the provisions of Section 7.01, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon the Officer’s Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.


 


Section 10.09.                       Notice to Holders Prior to Certain Actions.  In case:


 


(a)                                  the
Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to Section 10.04;


 


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


 


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


 


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


 


the Company shall cause to be filed with the Trustee
and to be mailed to each Holder of Securities at his address appearing on the
register provided for in Section 2.03 of this Indenture, as promptly as
possible but in any event at least ten (10) days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution of rights or warrants,
or, if a record is not to be taken, the date as of which the holders of the
Common Stock of record to be entitled to such dividend, distribution or rights
are to be determined, or (y) the date on which such reclassification,
consolidation, merger, or statutory share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of the Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
or statutory share exchange, sale, transfer, dissolution, liquidation or
winding up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, or statutory share exchange, sale,
transfer, dissolution, liquidation or winding up.


 


67





















 


Section 10.10.                       Shareholder Rights Plan. 
To the extent that the Company has a rights plan in effect upon
conversion of the Securities into Common Stock, a Holder who converts
Securities shall receive, in addition to shares of Common Stock, the rights under
the rights plan, unless prior to any conversion, the rights have separated from
the Common Stock, in which case the Conversion Rate shall be adjusted at the
time of separation as if the Company distributed to all holders of the Common
Stock, shares of the Company’s Capital Stock, evidences of indebtedness or
assets as described in Section 10.04(d) above, subject to
readjustment in the event of the expiration, termination or redemption of such
rights.  In lieu of any such adjustment,
the Company may amend such applicable shareholder rights agreement to provide
that upon conversion of the Securities the Holders shall receive, in addition
to the Common Stock issuable upon such conversion, the rights that would have
attached to Common Stock if the rights had not become separated from the Common
Stock under such applicable shareholder rights agreement.


 


Section 10.11.                       Unconditional Right of Holders to Convert.  Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to convert its Security in accordance with this Article 10
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 11

Contingent Interest


 


Section 11.01.                       Contingent Interest.  (a) 
The Company shall pay Contingent Interest with respect to the Securities for
any Contingent Interest Period if the average Trading Price of Securities for
the five consecutive Trading Days ending on the third Trading Day immediately
preceding the first day of the relevant Contingent Interest Period equals or
exceeds 140% of the principal amount of such Securities.


 


(b)                                 The
amount of Contingent Interest payable per $1,000 principal amount of Securities
in respect of any Contingent Interest Period shall equal 0.40% per annum
calculated on the average Trading Price of $1,000 principal amount of
Securities during the relevant five Trading Day period used to determine
whether Contingent Interest must be paid.


 


(c)                                  The
Company shall be responsible for calculating the amounts of Contingent
Interest, if any, accrued on the Securities. 
The Company shall make any such calculations using the Trading Price
provided by the Bid Solicitation Agent. 
The Bid Solicitation Agent shall be entitled in its sole discretion to
consult with the Company and to request the assistance of the Company in
connection with the Bid Solicitation Agent’s duties pursuant to this Article 11,
and the Company agrees, if requested by the Bid Solicitation Agent, to
cooperate with, and provide assistance to, the Trustee in carrying out its
duties under this Article 11.


 


Section 11.02.                       Payment of Contingent Interest.  Payments of Contingent Interest shall be made
in the same manner, at the same time, and subject to the same restrictions,
including those restrictions in respect of accrued and unpaid interest on any
Securities that are submitted for conversion, as payments of Interest.


 


68





















 


Section 11.03.                       Contingent Interest Notification.  (a) By the first Business Day of a
Contingent Interest Period for which Contingent Interest shall be payable, the
Company shall notify the Trustee that Contingent Interest is payable, and shall
disseminate a press release containing this information or publish the
information on its Website or through such other public medium as it may use at
that time.


 


ARTICLE 12

Miscellaneous


 


Section 12.01.                       Trust Indenture Act Controls.  If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control.


 


Section 12.02.                       Notices.  Any request,
demand, authorization, notice, waiver, consent or communication by the Company
or the Trustee to the other is duly given if in writing and delivered in person
or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission to the following facsimile numbers:


 


if to the Company:


 


CompuCredit Corporation

245 Perimeter Center Parkway, Suite 600, Atlanta, GA 30346

Attn:  Rohit H. Kirpalani, General
Counsel

Facsimile:  (770) 206-6187


 


With a copy to:


 


Troutman Sanders LLP

600 Peachtree Street, Suite 5200, Atlanta, Georgia 30308

Attention:  W. Brinkley Dickerson, Jr.

Facsimile: (404) 962-6743


 


if to the Trustee:


 


Wachovia Bank, National Association

360 Interstate North Parkway, SE, Suite 500-GA4605, Atlanta, Georgia  30339-2216

Attention:  Corporate Trust Department

Facsimile: (770) 644-6879


 


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 delivered to the Securityholder, in accordance with the procedures of
the Registrar or 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.


 


69





















 


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; provided, however, that no notice to the Trustee shall be deemed
to be duly given unless and until the Trustee actually receives same at the
address given above.


 


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 12.03.                       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 12.04.                       Certificate and Opinion as to Conditions Precedent.  Upon any request or application by the
Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:


 


(1)                                  an
Officer’s Certificate stating that, in the opinion of the signer, 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 12.05.                       Statements Required in Certificate or Opinion.  Each Officer’s 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 Officer’s 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 Officer’s 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 12.06.                       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.


 


70





















 


Section 12.07.                       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.


 


Section 12.08.                       Legal Holiday.  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 shall accrue
with respect to such payment for the intervening period.


 


Section 12.09.                       Governing Law.  THIS
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES
THEREOF.


 


Section 12.10.                       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. 
By accepting a Security, each Securityholder shall waive and release all
such liability.  The waiver and release
shall be part of the consideration for the issue of the Securities.


 


Section 12.11.                       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 12.12.                       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.


 


71





















 


	
   

  	
    COMPUCREDIT CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    By:

  	
    /s/ Richard R. House, Jr.

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard R. House, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ William McCamey

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William McCamey

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Paul L. Henderson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Paul L. Henderson

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  



 


72





















 


EXHIBIT A


 


[FORM OF
FACE OF GLOBAL SECURITY]


 


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


 


TRANSFERS OF THIS GLOBAL 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.


 


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


 


(1)           REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT OF 1933;


 


(2)           AGREES THAT IT WILL
NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 5.875 % CONVERTIBLE
SENIOR NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO COMPUCREDIT CORPORATION OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF
1933 (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE


 


A-1





















 


SECURITIES ACT
OF 1933 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(C) OR 2(D) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


The foregoing legend may be removed from this Security
upon the earlier of the Resale Restriction Termination Date or the transfer of
the Securities pursuant to clause 2(C) or 2(D) above.


 


THIS SECURITY, ANY SHARES OF
COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES
AND OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE
IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. 
THE HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE
ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.


 


FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), THIS SECURITY IS BEING
ISSUED WITH TAX ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE OF THIS SECURITY IS
$1,000 PER $1,000 OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS SECURITY IS NOVEMBER 23,
2005. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX
REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF
SECTIONS 1272, 1273 AND 1275 OF THE CODE, THE COMPARABLE YIELD OF THIS SECURITY
IS 9.24%, COMPOUNDED SEMI-ANNUALLY.


 


THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER
OF THIS SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL
ISSUE DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND PROJECTED
PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT THE
FOLLOWING ADDRESS: COMPUCREDIT CORPORATION, 245 PERIMETER CENTER PARKWAY, SUITE
600, ATLANTA, GA  30346, ATTENTION:
INVESTOR RELATIONS.


 


Pursuant to Section 2.14 of the Indenture, the
foregoing legend is required for U.S. federal income tax purposes.


 


A-2





















 


COMPUCREDIT
CORPORATION



5.875 % Convertible Senior Notes Due 2035


 


	
  CUSIP: 20478N AC 4

  	
   

  	
   

  
	
  ISSUE DATE: November 23, 2005

  	
   

  	
  Principal Amount: $300,000,000

  
	
  No. R-1

  	
   

  	
   

  



 


COMPUCREDIT CORPORATION, a Georgia corporation,
promises to pay to Cede & Co. or registered assigns, the principal
amount of Three Hundred Million Dollars, on November 30, 2035.


 


Interest Rate: 5.875 % per year.


 


Interest Payment Dates: January 30 and July 30
of each year, commencing January 30, 2006.


 


Interest Record Date: 
January 15 and July 15 of each year.


 


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 under its corporate seal.


 


	
  Dated: November 23, 2005

  	
  COMPUCREDIT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard R. House, Jr.

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William McCamey

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
						



 


 


	
  TRUSTEE’S CERTIFICATE OF AUTHENTICATION

  
	
   

  
	
  WACHOVIA BANK, NATIONAL ASSOCIATION,

  as Trustee, certifies that this is one

  of the Securities referred to in the

  within-mentioned Indenture.

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Authorized Officer

  
	
   

  
	
  Dated: November 23, 2005

  



 


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[FORM OF
REVERSE OF GLOBAL SECURITY]



5.875 % Convertible Senior Notes Due 2035


 


This Security is one of a duly authorized issue of 5.875
% Convertible Senior Notes Due 2035 (the “Securities”)
of CompuCredit Corporation, a Georgia corporation (including any successor
corporation under the Indenture hereinafter referred to, the “Company”), issued under an Indenture, dated
as of November 23, 2005 (the “Indenture”),
between the Company and Wachovia Bank, National Association, as trustee (the “Trustee”). 
The terms of the Security include those stated in the Indenture, those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (“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.                                       Interest.


 


The Securities shall bear interest on the principal
amount thereof at a rate of 5.875 % per year. 
The Company shall pay Contingent Interest, if any, as set forth in the
Indenture and in Section 3 hereof. 
The Company shall also pay Liquidated Damages, if any, as set forth in Section 4.07
of the Indenture and the Registration Rights Agreement.


 


Interest shall be payable semi-annually in arrears on
each Interest Payment Date to Holders at the close of business on the preceding
Interest Record Date.  Interest shall be
computed on the basis of a 360-day year comprised of twelve 30 day months and
shall accrue from November 23, 2005 or, beginning as of the first Interest
Payment Date, from the most recent Interest Payment Date.


 


The Company shall pay Interest to the Securityholder
of record on the Interest Record Date even if the Company elects to redeem or
Securityholders elect to require the Company to repurchase, the Securities on a
date that is after an Interest Record Date but on or prior to the corresponding
Interest Payment Date.  In that instance,
the Company shall pay accrued and unpaid Interest on the Securities being
redeemed to, but not including, the Redemption Date or the Fundamental Change
Repurchase Date, as the case may be, to the Securityholder of record on the
Interest Record Date.


 


If the principal amount of any Security, or any
accrued and unpaid Interest, Contingent Interest, if any, or Liquidated
Damages, if any, are not paid when due (whether upon acceleration pursuant to Article 6
of the Indenture, upon the date set for payment of the Redemption Price
pursuant to Section 5 hereof, upon the date set for payment of the
Fundamental Change Repurchase Price pursuant to Section 6 hereof, upon the
Stated Maturity of the Securities, upon the Interest Payment Dates or upon the
Liquidated Damages Payment Dates as defined in the Registration Rights
Agreement), then in each such case the overdue amount shall, to the extent
permitted by law, bear cash interest at the rate of 5.875% per annum, compounded
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date


 


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payment of such amount,
including interest thereon, has been made or duly provided for.  All such interest shall be payable in cash on
demand but if not so demanded shall be paid quarterly to the Holders on the
last day of each quarter.


 


2.                                       Method of Payment.


 


Except as provided below, the Company shall pay
Interest, including Contingent Interest, if any, and Liquidated Damages, if
any, on (i) Global Securities, to DTC in immediately available funds, (ii) any
Certificated Security having an aggregate principal amount of $2,000,000 or
less, by check mailed to the Holder of such Security and (iii) any
Certificated Security having an aggregate principal amount of more than
$2,000,000, by wire transfer in immediately available funds if requested by the
Holder of any such Security at least five business days prior to the relevant
Interest Payment Date.


 


At Stated Maturity, the Company shall pay Interest on
Certificated Securities at the Company’s office or agency maintained for that
purpose, which initially shall be the office or agency of the Trustee located
at One Penn Plaza, Suite 1414, New York, New York 10119.


 


Subject to the terms and conditions of the Indenture,
the Company shall make payments in cash in respect of Redemption Prices,
Fundamental Change 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 shall 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.


 


3.                                       Contingent Interest.


 


The Company shall pay Contingent Interest under the
circumstances and in the amounts described in Article 11 of the
Indenture.  Such Contingent Interest, if
any, shall be payable in the same manner, at the same time, and subject to the
same restrictions, including those restrictions in respect of accrued and
unpaid interest on any Securities that are submitted for conversion, as
payments of Interest.


 


4.                                       Indenture.


 


The Securities are general unsecured obligations of
the Company limited to $300,000,000 aggregate principal amount (plus such
additional amount (up to an aggregate of $350,000,000) purchased by the Initial
Purchasers pursuant to the option described in Section 2.02 of the
Indenture).  The Indenture does not limit
other indebtedness of the Company, secured or unsecured.


 


5.                                       Redemption at the Option of the Company.


 


No sinking fund is provided for the Securities.  The Company may redeem the Securities, in
whole or in part, (1) at any time on or after February 4, 2009, if
the Last Reported Sale Price of the Common Stock for at least 20 Trading Days
during the period of 30 consecutive Trading Days ending on the last Trading Day
prior to the mailing of the notice of redemption exceeds 140% of the applicable
Conversion Price for cash at a redemption price (the “Redemption


 


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Price”) equal
to 100% of the principal amount of the Securities redeemed, plus any accrued
and unpaid Interest, accrued and unpaid Contingent Interest, if any, and
accrued and unpaid Liquidated Damages, if any, on the Securities redeemed up
to, but not including, the Redemption Date.


 


In no event shall any Security be redeemable before February 4,
2009.


 


6.                                       Purchase By the Company at the Option of the Holder.


 


At the option of the Holder and subject to the terms
and conditions of the Indenture, the Company shall become obligated to
repurchase the Securities held by such Holder after the occurrence of a
Fundamental Change for a Fundamental Change Repurchase Price equal to the
principal amount of those Securities plus accrued and unpaid Interest, accrued
and unpaid Contingent Interest, if any, and Liquidated Damages, if any, on
those Securities up to, but not including, the Fundamental Change Repurchase
Date.


 


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


 


If cash sufficient to pay the Fundamental Change
Repurchase Price of all Securities or portions thereof to be purchased as of
the Fundamental Change Repurchase Date is deposited with the Paying Agent,
Interest, Contingent Interest, if any, and Liquidated Damages, if any, shall
cease to accrue on such Securities (or portions thereof) on and following such
Fundamental Change Repurchase Date, and the Holder thereof shall have no other
rights as such other than the right to receive the Fundamental Change
Repurchase Price upon surrender of such Security.


 


7.                                       Notice of Redemption.


 


Notice of redemption pursuant to Section 5 of
this Security shall be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder of Securities to be redeemed at the
Holder’s registered address.  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, immediately on and after such Redemption Date
Interest, Contingent Interest, if any, and Liquidated Damages, if any, shall
cease to accrue on such Securities or portions thereof.  Securities in denominations larger than
$1,000 principal amount may be redeemed in part but only in integral multiples
of $1,000 of principal amount.


 


8.                                       Conversion.


 


Subject to the occurrence of certain events and in
compliance with the provisions of the Indenture (including, without limitation,
the conditions to conversion of this Security set forth in Section 10.01
thereof), 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 of $1,000), into cash and fully paid and nonassessable shares
of Common Stock, if any, at the Conversion Rate in effect at the time of
conversion.


 


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The Company shall notify Holders of any event
triggering the right to convert the Securities as specified in the Indenture.


 


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


 


The initial Conversion Rate is 18.9265 shares of
Common Stock per $1,000 principal amount, subject to adjustment in certain
events described in the Indenture.  The
Conversion Rate shall not be adjusted for any accrued and unpaid Interest,
accrued and unpaid Contingent Interest, if any or accrued and unpaid Liquidated
Damages, if any.  Upon conversion, no
payment shall be made by the Company with respect to accrued and unpaid
Interest and accrued and unpaid Contingent Interest, if any.  Instead, such amount shall be deemed paid by
the cash and shares of Common Stock, if any, delivered upon conversion of any
Security.  A Holder shall receive,
however, accrued and unpaid Liquidated Damages, if any.  In addition, no payment or adjustment shall
be made in respect of dividends on the Common Stock, except as set forth in the
Indenture.


 


In addition, following certain corporate transactions
as set forth in Section 10.01(b) of the Indenture that occur on or
prior to November 30, 2015 and that also constitute a Change of Control pursuant
to Section 10.01(b)(2) of the Indenture or a Fundamental Change pursuant to
Section 10.01(b)(3) of the Indenture, as applicable, a Holder who elects to
convert its Securities in connection with such corporate transaction or event
shall be entitled to receive Additional Shares of Common Stock upon
conversion.  Notwithstanding the previous
sentence, in the case of a Public Acquirer Change of Control, the Company may,
in lieu of increasing the Conversion Rate by Additional Shares, elect to adjust
the Conversion Rate and Conversion Obligation such that from and after the
effective date of such Public Acquirer Change of Control, Holders of the
Securities shall be entitled to convert their Securities into a number of
shares of Public Acquirer Common Stock, as determined pursuant to Section 10.01(d) of
the Indenture.


 


To surrender a Security for conversion, a Holder must (1) complete
and manually sign the Conversion Notice attached hereto (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, (4) if required by Section 10.02(g) of
the Indenture, pay Interest and Contingent Interest and (5) pay any
transfer or similar tax, if required.


 


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.


 


In the event that the Company (i) is a party to a
consolidation, merger, binding share exchange or combination, (ii) reclassifies
the Common Stock, (iii) sells or conveys all or substantially all of its
property or assets to any Person, and as a result of any such event the Holders
of Common Stock would be entitled to receive Exchange Property for their Common


 


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Stock, upon conversion of
the Securities after the effective date of such event, the Conversion
Obligation and the Conversion Settlement Distribution shall be based on the
applicable Conversion Rate and the Exchange Property, in each case in
accordance with the Indenture.


 


9.                                       Paying Agent, Conversion Agent and Registrar.


 


Initially, the Trustee shall 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.  The Company or any of its Subsidiaries or any
of their Affiliates may act as Paying Agent, Conversion Agent or Registrar.


 


10.                                 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) for a period
of 15 days before the mailing of a notice of redemption of Securities to be
redeemed or any Securities in respect of which a Fundamental Change 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).


 


11.                                 Persons Deemed Owners.


 


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


 


12.                                 Unclaimed Money or Securities.


 


The Trustee and the Paying Agent shall return to the
Company upon written request any money or securities held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years, subject to applicable abandoned 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.


 


13.                                 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 Events of Defaults may
be waived with the written consent of the Holders of a majority in aggregate
principal amount of the outstanding Securities. 
Subject to certain exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the Trustee may amend the
Indenture or the Securities (i) to add guarantees with respect to the
Securities, (ii) to remove any guarantee added to the Securities pursuant
to clause (i), unless such guarantee is required pursuant to Section 5.01(a)


 


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of the Indenture, (iii) to
conform as necessary, the Indenture and this Security to the “Description of
Notes” as set forth in the Offering Memorandum, (iv) to add to the
covenants of the Company for the benefit of the Holders of Securities, (v) to
surrender any right or power conferred upon the Company in the Indenture, (vi) to
provide for conversion rights of Holders of Securities if any reclassification
or change of the Company’s Common Stock or any consolidation, merger or sale of
all or substantially all of the Company’s assets occurs, (vii) to provide
for the assumption by a successor Person of the Company’s obligations to the
Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 of the Indenture, (viii) to
provide for uncertificated Securities in addition to or in place of
Certificated Securities; provided, however, that uncertificated Securities are
issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that uncertificated Securities are described in Section 163(f)(2)(B) of
the Code, (ix) to change the Conversion Rate in accordance with the
Indenture; provided, however, that any increase in the Conversion Rate other
than pursuant to Article 10 shall not adversely affect the interests of
the Holders of Securities (after taking into account U.S. federal income tax
and other consequences of such increase), (x) to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the TIA, (xi) to make any changes or modifications necessary in
connection with the registration of the Securities under the Securities Act as
contemplated by the Registration Rights Agreement; provided, however, that any
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) and the Trustee,
adversely affect the interests of the Holders of Securities in any material
respect, (xii) to cure any ambiguity or to correct or supplement any provision
in the Indenture which may be inconsistent with any other provision in the
Indenture or which is otherwise defective; provided, however, that any 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) and the Trustee,
adversely affect the interests of the Holders of Securities in any material
respect, (xiii) to add or modify any other provisions of the Indenture with
respect to matters or questions arising under the Indenture which the Company
and the Trustee may deem necessary or desirable and which, in the good faith
opinion of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, shall not adversely affect the interests of the
Holders of Securities in any material respect, (xiv) to establish the form of
Securities if issued in definitive form and (xv) to evidence and provide for
the acceptance of the appointment under the Indenture of a successor Trustee.


 


14.                                 Defaults and Remedies.


 


If any Event of Default with respect to Securities
shall occur and be continuing, the principal amount of the Securities and any
accrued and unpaid Interest, accrued and unpaid Contingent Interest, if any,
and accrued and unpaid Liquidated Damages, if any, on all the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.


 


15.                                 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


 


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otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.


 


16.                                 Calculations in Respect of Securities.


 


The Company or its agents shall be responsible for
making all calculations called for under the Securities including, but not
limited to, determination of the market prices for the Securities and of the
Common Stock and the amounts of Contingent Interest and Liquidated Damages, if
any, accrued on the Securities.  Any
calculations made in good faith and without manifest error shall be final and
binding on Holders of the Securities. 
The Company or its agents shall be required to deliver to the Trustee a schedule of
its calculations and the Trustee shall be entitled to conclusively rely upon
the accuracy of such calculations without independent verification.


 


17.                                 U.S. Federal Income Tax Treatment.


 


For purposes of Sections 1272, 1273 and 1275 of the
Code, this Security is being issued with Tax Original Issue Discount and the
issue date of this Security is November 23, 2005. In addition, this
Security is subject to the Treasury regulations governing contingent payment
debt instruments.  For purposes of
Sections 1272, 1273 and 1275 of the Code, the comparable yield of this Security
is 9.24%, compounded semi-annually (which shall be treated as the yield to
maturity for U.S. federal income tax purposes).


 


The Company and each Holder, by acquiring a beneficial
interest in a Security, agree (i) to treat the Security as indebtedness
for U.S. federal income tax purposes that is subject to the Treasury
regulations governing contingent payment debt instruments (the “contingent debt
regulations”), (ii) that each Holder shall be bound by the Company’s
application of the contingent debt regulations to the Security, including the
Company’s determination of the “comparable yield” and “projected payment
schedule” within the meaning of the contingent debt regulations, and (iii) that
the Company and each Holder will not take any position on any U.S. federal
income tax return that is inconsistent with (i) or (ii), unless required
by applicable law.  The Company agrees to
provide promptly to the Holder of this Security, upon written request, the
issue price, amount of Tax Original Issue Discount, issue date, yield to
maturity, comparable yield and projected payment schedule. Any such written
request should be sent to the Company at the following address: CompuCredit
Corporation, 245 Perimeter Center Parkway, Suite 600, Atlanta,
Georgia  30346, Attention: Investor
Relations.


 


18.                                 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.  By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.


 


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19.                                 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.


 


20.                                 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).


 


21.                                 Governing Law.


 


THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS RULES THEREOF.


 


22.                                 Copy of Indenture.


 


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


 


CompuCredit Corporation

245 Perimeter Center Parkway, Suite 600, Atlanta, GA  30346

Attn:  General Counsel

Facsimile No.: (770) 206-6187


 


23.                                 Registration Rights.


 


The Holders of the Securities are entitled to the
benefits of a Registration Rights Agreement, dated November 23, 2005, by and
between the Company and Bear, Stearns & Co. Inc., as representative of
the initial purchasers, including the right to receive Liquidated Damages upon
a Registration Default (as defined in such agreement).  The Company shall make payments of Liquidated
Damages on the Liquidated Damages Payment Dates (as defined in the Registration
Rights Agreement), but otherwise in accordance with the provisions set forth
herein for the payment of Interest.


 


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  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
  To assign this Security, fill in the form
  below:

  	
   

  	
  To convert this Security, 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):

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If you want the stock certificate made out
  in another person’s name 

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

  	
   

  	
  fill in the form below:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

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

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  and irrevocably appoint

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   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

  
									



 


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SCHEDULE OF
INCREASES AND DECREASES 

OF GLOBAL SECURITY


 


Initial Principal Amount of Global Security: Three
Hundred Million Dollars ($300,000,000).


 




	
  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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


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EXHIBIT B


 


[FORM OF
FACE OF CERTIFICATED SECURITY]


 


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


 


(1)           REPRESENTS THAT IT IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT OF 1933;


 


(2)           AGREES THAT IT WILL
NOT, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE 5.875 % CONVERTIBLE
SENIOR DEBENTURES AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO
COMPUCREDIT CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF
1933, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT OF 1933 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(C) OR 2(D) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


The foregoing legend may be removed from this Security
upon the earlier of the Resale Restriction Termination Date or the transfer of
the Securities pursuant to clause 2(C) or 2(D) above.


 


THIS SECURITY, ANY SHARES OF
COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES
AND OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE
IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. 
THE HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE
ACCEPTANCE OF


 


B-1





















 


THIS
SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), THIS SECURITY IS BEING ISSUED WITH
TAX ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE OF THIS SECURITY IS 1,000 PER
1,000 OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS SECURITY IS NOVEMBER 23,
2005. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX
REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF
SECTIONS 1272, 1273 AND 1275 OF THE CODE, THE COMPARABLE YIELD OF THIS SECURITY
IS 9.24%, COMPOUNDED SEMI-ANNUALLY.


 


THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER
OF THIS SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL
ISSUE DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND PROJECTED
PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT THE
FOLLOWING ADDRESS: COMPUCREDIT CORPORATION, 245 PERIMETER CENTER PARKWAY, SUITE
600, ATLANTA, GA  30346, ATTENTION:
INVESTOR RELATIONS.


 


Pursuant to Section 2.14 of the Indenture, the
foregoing legend is required for U.S. federal income tax purposes.


 


B-2





















 


COMPUCREDIT
CORPORATION



5.875 % CONVERTIBLE SENIOR NOTES DUE 2035


 


	
  CUSIP:
  20478N AC 4

  	
   

  	
   

  
	
  ISSUE DATE: November 23,
  2005

  	
   

  	
  Principal Amount: $

  
	
  No. R-1

  	
   

  	
   

  



 


CompuCredit Corporation, a Georgia corporation,
promises to pay to                          
or registered assigns, the principal amount of                        ,
on November  30, 2035.


 


Interest Rate: 5.875 % per year.


 


Interest Payment Dates: January 30 and July 30
of each year, commencing January 30, 2006.


 


Interest Record Date: 
January 15 and July 15 of each year.


 


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.


 


	
  Dated:

  	
   

  	
  , 20

  	
   

  	
   

  	
  COMPUCREDIT CORPORATION

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPUCREDIT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  TRUSTEE’S CERTIFICATE OF AUTHENTICATION

  	
   

  
	
   

  	
   

  
	
   

  
	
   

  	
  ,

  
	
  Wachovia Bank, National Association

  as Trustee, certifies that this is one

  of the Securities referred to in the

  within-mentioned Indenture.

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
												



 


B-3





















 


Authorized Signatory


 


	
  Dated:

  	
   

  	
  , 20

  	
   

  	
   

  	
   

  



 


B-4





















 


[FORM OF
REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO

EXHIBIT A]


 


B-5





















 


EXHIBIT C


 


COMPUCREDIT
CORPORATION



5.875 % Convertible Senior Notes Due 2035



Transfer Certificate


 


In connection with any transfer of any of the
Securities 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 of
this Security hereby certifies with respect to $                       
principal amount of the above-captioned Securities presented or surrendered on
the date hereof (the “Surrendered
Securities”) for registration of transfer, or for exchange or conversion
where the securities issuable upon such exchange or conversion are to be
registered in a name other than that of the undersigned registered owner (each
such transaction being a “transfer”),
that such transfer complies with the restrictive legend set forth on the face
of the Surrendered 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 pursuant to an effective registration statement under
the Securities Act; or


 


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


 


o                                    The transfer of the
Surrendered Securities is pursuant to Rule 144 under the Securities Act
and each of the conditions set forth in such rule have been met;


 


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.


 


C-1





















 


	
  DATE:

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


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


 


	
  Signature Guaranteed 

  
	
   

  
	
   

  	
   

  
	
  Participant in a Recognized Signature

  
	
   

  
	
  Name:

  
	
   

  
	
  Address:

  
	
   

  
	
  Tax I.D.:

  



 


C-2





















 


EXHIBIT D


 


COMPUCREDIT CORPORATION

NOTICE OF REDEMPTION


 


[Date]


 


To the Holders of the 5.875 % Convertible Senior Notes
Due 2035

issued by CompuCredit Corporation:


 


CompuCredit Corporation (the “Issuer”) by this written
notice hereby exercises, pursuant to Section 3.01 of that certain
Indenture (the “Indenture”), dated as of November 23, 2005, between the
Issuer and Wachovia Bank, National Association, its right to redeem $                    
of its 5.875 % Convertible Senior Notes Due 2035 (the “Securities”).  All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Indenture.


 


1.                                       Redemption
Date:                                                 [                    ,
         ]


 


2.                                       Redemption
Price:                                                $[             ]


 


3.                                       Conversion
Rate:    Each $1,000 principal amount
of the Securities is convertible at your option into [insert number of shares]
shares of the Issuer’s common stock, no par value (the “Common Stock”), subject
to adjustment, during the period described below.


 


4.                                       Paying
Agent and Conversion Agent: [NAME] [ADDRESS]


 


5.                                       The
Securities called for redemption may be converted at your option at any time
from the date of this Notice of Redemption until 5:00 p.m. on the Business
Day immediately prior to the Redemption Date set forth above.


 


6.                                       The
Securities called for redemption and not converted at your election prior to
5:00 p.m. on the Business Day immediately prior to Redemption Date set
forth above shall be redeemed on the business day immediately following such
Redemption Date.


 


7.                                       If
you elect to convert your Securities, you must satisfy the requirements for
conversion set forth in your Securities.


 


8.                                       Your
Securities called for redemption must be surrendered by you (by effecting
book-entry transfer of the Securities or delivering Certificated Securities,
together with necessary endorsements, as the case may be) to [Name of Paying
Agent] at [insert address] in order for you to collect the Redemption Price.


 


9.                                       The
Securities bearing the following Certificate Number(s) in the principal amount
set forth below opposite such Certificate Number(s) are being redeemed:


 


	
  Certificate Number(s)

  	
   

  	
  Principal Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


D-1





















 


10.                                 Unless
the Company defaults in making the payment of the Redemption Price owed to you,
Interest, Contingent Interest, if any, and Liquidated Damages, if any, on your
Securities called for redemption shall cease to accrue on and after the
Redemption Date.


 


11.                                 Cusip
Number(s):


 


COMPUCREDIT CORPORATION


 


D-2





















 


EXHIBIT E


 


COMPUCREDIT CORPORATION

NOTICE OF OCCURRENCE

OF FUNDAMENTAL CHANGE


 


[DATE]


 


To the Holders of the 5.875 % Convertible Senior Notes
Due 2035

(the “Securities”) issued by CompuCredit Corporation:


 


CompuCredit Corporation (the “Issuer”) by this written
notice hereby notifies you, pursuant to Section 3.08 of that certain
Indenture (the “Indenture”), dated as of November 23, 2005, between the
Issuer and Wachovia Bank, National Association, that a Fundamental Change (as
such term and other capitalized terms used herein and not otherwise defined
herein is defined in the Indenture) as described below has occurred.  Included herewith is the form of Fundamental
Change Repurchase Notice to be completed by you if you wish to have your
Securities repurchased by the Issuer.


 


1.                                       Fundamental
Change:  [Insert brief description of the
Fundamental Change and the date of the occurrence thereof].


 


2.                                       Date
by which Fundamental Change Repurchase Notice must be delivered by you to
Paying Agent in order to have your Securities repurchased:


 


3.                                       Fundamental
Change Repurchase Date:


 


4.                                       Fundamental
Change Repurchase Price:


 


5.                                       Paying
Agent and Conversion Agent: [NAME] [ADDRESS]


 


6.                                       Conversion
Rate:    To the extent described in
Item 7 below, each $1,000 principal amount of the Securities is convertible
into [insert number of shares] shares of the Issuer’s common stock, no par
value (the “Common Stock”), subject to adjustment.


 


7.                                       The
Securities as to which you have delivered a Fundamental Change Repurchase
Notice to the Paying Agent may be converted if they are otherwise convertible
pursuant to Article 10 of the Indenture and the terms of the Securities
only if you withdraw such Fundamental Change Repurchase Notice pursuant to the
terms of the Indenture.  You may be
entitled to have your Securities converted into shares of the Common Stock (or,
at the option of the Issuer, cash or a combination of cash and shares of the
Common Stock):


 


(i)                                     during
any fiscal quarter commencing after December 31, 2005 (and only during
such fiscal quarter), if the last reported sale price (as defined in the
Indenture) of the Issuer’s common stock for at least 20 trading days in the 30
trading-day period ending on the last trading day of the preceding fiscal
quarter was 130% or more of the conversion price (as defined in the Indenture)
on such last trading day;


 


E-1





















 


(ii)                                  if
the Issuer has called the Securities for redemption;


 


(iii)                               upon
the occurrence of certain specified corporate transactions described in the
Indenture; or


 


(iv)                              on
or after November 1, 2035.


 


8.                                       The
Securities as to which you have delivered a Fundamental Change Repurchase
Notice must be surrendered by you (by effecting book-entry transfer of the
Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to [Name of Paying Agent] at [insert address]
in order for you to collect the Fundamental Change Repurchase Price.


 


9.                                       The
Fundamental Change Repurchase Price for the Securities as to which you have
delivered a Fundamental Change Repurchase Notice and not withdrawn such Notice
shall be paid promptly following the later of the Business Day immediately
following such Fundamental Change Repurchase Date and the date you deliver such
Securities to [Name of Paying Agent].


 


10.                                 In
order to have the Issuer repurchase your Securities, you must deliver the
Fundamental Change Repurchase Notice, duly completed by you with the
information required by such Fundamental Change Repurchase Notice (as specified
in Section 3.08 of the Indenture) and deliver such Fundamental Change
Repurchase Notice to the Paying Agent at any time from 9:00 a.m. on the
date of the occurrence of the Fundamental Change until 5:00 p.m. on the
Fundamental Change Repurchase Date.


 


11.                                 In
order to withdraw any Fundamental Change Repurchase Notice previously delivered
by you to the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m.
on the Fundamental Change Repurchase Date, a written notice of withdrawal
specifying (i) the certificate number, if any, of the Securities in
respect of which such notice of withdrawal is being submitted, (ii) the
principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, and (iii) if you are not withdrawing your
Fundamental Change Repurchase Notice for all of your Securities, the principal
amount of the Securities which still remain subject to the original Fundamental
Change Repurchase Notice.


 


12.                                 Unless
the Issuer defaults in making the payment of the Fundamental Change Repurchase
Price owed to you, Interest, Contingent Interest, if any, and Liquidated
Damages, if any, on your Securities as to which you have delivered a
Fundamental Change Repurchase Notice shall cease to accrue on and after the
Fundamental Change Repurchase Date.


 


13.                                 Cusip
Number(s):


 


COMPUCREDIT CORPORATION


 


F-2





















 


SCHEDULE I


 


The following table sets forth the Stock Prices and
the number of Additional Shares per $1,000 principal amount of Securities.


 


[see attached]


 





















 


	
  Effective 

  Date

  	
   

  	
  Share Price

  	
   

  
	
  $44.03

  	
   

  	
  $47.50

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $65.00

  	
   

  	
  $70.00

  	
   

  	
  $75.00

  	
   

  	
  $80.00

  	
   

  	
  $85.00

  	
   

  	
  $100.00

  	
   

  	
  $125.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November 17, 2005

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.324

  	
   

  	
  2.876

  	
   

  	
  2.526

  	
   

  	
  2.246

  	
   

  	
  2.019

  	
   

  	
  1.834

  	
   

  	
  1.426

  	
   

  	
  1.043

  	
   

  
	
  November 30, 2006

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.395

  	
   

  	
  2.792

  	
   

  	
  2.341

  	
   

  	
  2.000

  	
   

  	
  1.736

  	
   

  	
  1.530

  	
   

  	
  1.369

  	
   

  	
  1.032

  	
   

  	
  0.747

  	
   

  
	
  November 30, 2007

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.715

  	
   

  	
  2.895

  	
   

  	
  2.230

  	
   

  	
  1.747

  	
   

  	
  1.399

  	
   

  	
  1.145

  	
   

  	
  0.961

  	
   

  	
  0.828

  	
   

  	
  0.585

  	
   

  	
  0.420

  	
   

  
	
  November 30, 2008

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.498

  	
   

  	
  2.551

  	
   

  	
  1.711

  	
   

  	
  1.064

  	
   

  	
  0.614

  	
   

  	
  0.335

  	
   

  	
  0.192

  	
   

  	
  0.130

  	
   

  	
  0.083

  	
   

  	
  0.064

  	
   

  
	
  November 30, 2009

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.472

  	
   

  	
  2.527

  	
   

  	
  1.670

  	
   

  	
  0.943

  	
   

  	
  0.310

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2010

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.456

  	
   

  	
  2.515

  	
   

  	
  1.662

  	
   

  	
  0.937

  	
   

  	
  0.307

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2011

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.440

  	
   

  	
  2.502

  	
   

  	
  1.653

  	
   

  	
  0.932

  	
   

  	
  0.305

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2012

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.425

  	
   

  	
  2.491

  	
   

  	
  1.645

  	
   

  	
  0.926

  	
   

  	
  0.302

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2013

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.415

  	
   

  	
  2.483

  	
   

  	
  1.640

  	
   

  	
  0.924

  	
   

  	
  0.302

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2014

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.406

  	
   

  	
  2.477

  	
   

  	
  1.635

  	
   

  	
  0.922

  	
   

  	
  0.302

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  
	
  November 30, 2015

  	
   

  	
  3.785

  	
   

  	
  3.785

  	
   

  	
  3.393

  	
   

  	
  2.465

  	
   

  	
  1.625

  	
   

  	
  0.913

  	
   

  	
  0.295

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000

  	
   

  	
  0.000