Exhibit 4.1


COGENT
COMMUNICATIONS GROUP, INC.


AS
ISSUER,


AND


WELLS
FARGO BANK, NATIONAL ASSOCIATION,

AS TRUSTEE


1.00%
Convertible Senior Notes due 2027


INDENTURE


Dated as
of June 11, 2007















TABLE OF
CONTENTS


	
   

  	
   

  	
  Page

  
	
  Article
  1

  	
   

  	
   

  
	
  DEFINITIONS AND
  INCORPORATION BY REFERENCE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
   

  	
  Definitions.

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Other Definitions.

  	
   

  	
  11

  
	
  Section 1.03.

  	
   

  	
  Incorporation by Reference of
  Trust Indenture Act

  	
   

  	
  12

  
	
  Section 1.04.

  	
   

  	
  Rules of Construction

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  2

  	
   

  	
   

  
	
  THE SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
   

  	
  Title; Amount and Issue of
  Securities; Principal and Interest

  	
   

  	
  13

  
	
  Section 2.02

  	
   

  	
  Form of Securities.

  	
   

  	
  15

  
	
  Section 2.03

  	
   

  	
  Legends

  	
   

  	
  15

  
	
  Section 2.04.

  	
   

  	
  Execution and Authentication

  	
   

  	
  20

  
	
  Section 2.05.

  	
   

  	
  Registrar and Paying Agent

  	
   

  	
  21

  
	
  Section 2.06

  	
   

  	
  Paying Agent to Hold Money in
  Trust

  	
   

  	
  22

  
	
  Section 2.07.

  	
   

  	
  Holder Lists

  	
   

  	
  22

  
	
  Section 2.08.

  	
   

  	
  General Provisions Relating to
  Transfer and Exchange

  	
   

  	
  22

  
	
  Section 2.09.

  	
   

  	
  Book-Entry Provisions for the
  Global Securities

  	
   

  	
  24

  
	
  Section 2.10.

  	
   

  	
  Special Transfer Provisions

  	
   

  	
  25

  
	
  Section 2.11.

  	
   

  	
  Mutilated, Destroyed, Lost or
  Wrongfully Taken Securities

  	
   

  	
  26

  
	
  Section 2.12.

  	
   

  	
  Outstanding Securities

  	
   

  	
  27

  
	
  Section 2.13.

  	
   

  	
  Temporary Securities

  	
   

  	
  28

  
	
  Section 2.14.

  	
   

  	
  Cancellation

  	
   

  	
  28

  
	
  Section 2.15.

  	
   

  	
  Payment of Interest; Defaulted
  Interest

  	
   

  	
  29

  
	
  Section 2.16.

  	
   

  	
  Computation of Interest

  	
   

  	
  30

  
	
  Section 2.17.

  	
   

  	
  CUSIP and ISIN Numbers

  	
   

  	
  30

  
	
  Section 2.18.

  	
   

  	
  Calculation Of Original Issue
  Discount Error! Bookmark
  not defined.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Article
  3

  	
   

  	
   

  
	
  COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Payment of Securities

  	
   

  	
  31

  
	
  Section 3.02.

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  31

  
	
  Section 3.03

  	
   

  	
  Corporate Existence

  	
   

  	
  31

  
	
  Section 3.04.

  	
   

  	
  Payment of Taxes and Other Claims

  	
   

  	
  32

  
	
  Section 3.05.

  	
   

  	
  Compliance Certificate

  	
   

  	
  32

  
	
  Section 3.06.

  	
   

  	
  Further Instruments and Acts

  	
   

  	
  32

  
	
  Section 3.07

  	
   

  	
  Statement by Officers as to
  Default

  	
   

  	
  32

  
	
  Section 3.08

  	
   

  	
  Additional Interest

  	
   

  	
  32

  



 



 ii
 








 


	
  Section 3.09

  	
   

  	
  Calculation Of Original Issue
  Discount

  	
   

  	
  33

  
	
  Section 3.10.

  	
   

  	
  Resale Of The Securities

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  4

  	
   

  	
   

  
	
  SUCCESSOR COMPANY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Consolidation, Merger and Sale of
  Assets

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  5

  	
   

  	
   

  
	
  REPORTING OBLIGATIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Reporting Obligations

  	
   

  	
  34

  
	
  Section 5.02.

  	
   

  	
  Compliance with TIA

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  6

  	
   

  	
   

  
	
  REDEMPTION OF SECURITIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
   

  	
  Optional Redemption.

  	
   

  	
  35

  
	
  Section 6.02

  	
   

  	
  Election to Redeem; Notice to
  Trustee

  	
   

  	
  35

  
	
  Section 6.03.

  	
   

  	
  Selection by Trustee of Securities
  to Be Redeemed

  	
   

  	
  35

  
	
  Section 6.04.

  	
   

  	
  Notice of Redemption

  	
   

  	
  36

  
	
  Section 6.05.

  	
   

  	
  Deposit of Redemption Price

  	
   

  	
  37

  
	
  Section 6.06.

  	
   

  	
  Securities Payable on Redemption
  Date

  	
   

  	
  37

  
	
  Section 6.07.

  	
   

  	
  Securities Redeemed in Part

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  7

  	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Events of Default

  	
   

  	
  38

  
	
  Section 7.02.

  	
   

  	
  Acceleration

  	
   

  	
  40

  
	
  Section 7.03.

  	
   

  	
  Sole Remedy for Failure to Report

  	
   

  	
  40

  
	
  Section 7.04.

  	
   

  	
  Other Remedies

  	
   

  	
  41

  
	
  Section 7.05.

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  41

  
	
  Section 7.06.

  	
   

  	
  Control by Majority

  	
   

  	
  42

  
	
  Section 7.07.

  	
   

  	
  Limitation on Suits

  	
   

  	
  42

  
	
  Section 7.08

  	
   

  	
  Rights of Holders to Receive
  Payment

  	
   

  	
  43

  
	
  Section 7.09.

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  43

  
	
  Section 7.10

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  43

  
	
  Section 7.11

  	
   

  	
  Priorities

  	
   

  	
  43

  
	
  Section 7.12.

  	
   

  	
  Restoration of Rights and Remedies

  	
   

  	
  44

  
	
  Section 7.13.

  	
   

  	
  Undertaking of Costs

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  8

  	
   

  	
   

  
	
  TRUSTEE

  	
   

  	
   

  
	
  Section 8.01.

  	
   

  	
  Duties of Trustee

  	
   

  	
  44

  
	
  Section 8.02

  	
   

  	
  Rights of Trustee

  	
   

  	
  46

  



 


 



 iii
 








 


	
  Section 8.03.

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  47

  
	
  Section 8.04

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  47

  
	
  Section 8.05

  	
   

  	
  Notice of Defaults

  	
   

  	
  47

  
	
  Section 8.06.

  	
   

  	
  Reports by Trustee to Holders

  	
   

  	
  48

  
	
  Section 8.07.

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  48

  
	
  Section 8.08.

  	
   

  	
  Replacement of Trustee

  	
   

  	
  49

  
	
  Section 8.09

  	
   

  	
  Successor Trustee by Merger

  	
   

  	
  50

  
	
  Section 8.10.

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  50

  
	
  Section 8.11

  	
   

  	
  Preferential Collection of Claims
  Against Company

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  9

  	
   

  	
   

  
	
  Discharge of Indenture

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
   

  	
  Discharge of Liability on
  Securities

  	
   

  	
  50

  
	
  Section 9.02

  	
   

  	
  Reinstatement

  	
   

  	
  52

  
	
  Section 9.03

  	
   

  	
  Officers’ Certificate; Opinion of
  Counsel

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  10

  	
   

  	
   

  
	
  AMENDMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
   

  	
  Without Consent of Holders

  	
   

  	
  52

  
	
  Section 10.02.

  	
   

  	
  With Consent of Holders

  	
   

  	
  53

  
	
  Section 10.03.

  	
   

  	
  Compliance with Trust Indenture
  Act

  	
   

  	
  54

  
	
  Section 10.04.

  	
   

  	
  Revocation and Effect of Consents
  and Waivers

  	
   

  	
  54

  
	
  Section 10.05.

  	
   

  	
  Notation on or Exchange of
  Securities

  	
   

  	
  55

  
	
  Section 10.06

  	
   

  	
  Trustee to Sign Amendments

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  11

  	
   

  	
   

  
	
  PURCHASE AT THE OPTION
  OF HOLDERS UPON A DESIGNATED EVENT; PURCHASE

  AT THE OPTION OF HOLDERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
   

  	
  Purchase at the Option of the
  Holder Upon a Designated Event

  	
   

  	
  55

  
	
  Section 11.02.

  	
   

  	
  Purchase of Securities at the
  Option of the Holder.

  	
   

  	
  58

  
	
  Section 11.03.

  	
   

  	
  Further Conditions and Procedures
  for Purchase at the Option of the Holder Upon a Fundamental Change and
  Purchase of Securities at the Option of the Holder.

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  12

  	
   

  	
   

  
	
  CONVERSION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
   

  	
  Conversion of Securities

  	
   

  	
  64

  
	
  Section 12.02.

  	
   

  	
  Adjustments to Base Conversion
  Rate, the Incremental Share Factor and Daily Share Cap

  	
   

  	
  71

  
	
  Section 12.03.

  	
   

  	
  Adjustment to Common Stock
  Delivered Upon Certain Fundamental Changes

  	
   

  	
  79

  
	
  Section 12.04.

  	
   

  	
  Conversion After a Public Acquirer
  Change of Control

  	
   

  	
  81

  



 



 iv
 








 


	
  Section 12.05

  	
   

  	
  Effect of Recapitalizations,
  Reclassifications, and Changes of Common Stock

  	
   

  	
  82

  
	
  Section 12.06.

  	
   

  	
  Responsibility of Trustee

  	
   

  	
  83

  
	
  Section 12.07.

  	
   

  	
  Stockholder Rights Plan

  	
   

  	
  84

  
	
  Section 12.08.

  	
   

  	
  No Stockholder Rights

  	
   

  	
  84

  
	
  Section 12.09.

  	
   

  	
  Withholding Taxes for Adjustments
  in Conversation Rate

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Article
  13

  	
   

  	
   

  
	
  [RESERVED]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Article
  14

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
   

  	
  Trust Indenture Act Controls

  	
   

  	
  85

  
	
  Section 14.02.

  	
   

  	
  Notices

  	
   

  	
  85

  
	
  Section 14.03.

  	
   

  	
  Communication by Holders with
  other Holders

  	
   

  	
  86

  
	
  Section 14.04.

  	
   

  	
  Certificate and Opinion as to
  Conditions Precedent

  	
   

  	
  86

  
	
  Section 14.05.

  	
   

  	
  Statements Required in Certificate
  or Opinion

  	
   

  	
  86

  
	
  Section 14.06.

  	
   

  	
  When Securities Are Disregarded

  	
   

  	
  86

  
	
  Section 14.07.

  	
   

  	
  Rules by Trustee, Paying Agent and
  Registrar

  	
   

  	
  87

  
	
  Section 14.08.

  	
   

  	
  Legal Holidays

  	
   

  	
  87

  
	
  Section 14.09.

  	
   

  	
  Governing Law

  	
   

  	
  87

  
	
  Section 14.10.

  	
   

  	
  No Recourse Against Others

  	
   

  	
  87

  
	
  Section 14.11.

  	
   

  	
  Successors

  	
   

  	
  87

  
	
  Section 14.12.

  	
   

  	
  Multiple Originals

  	
   

  	
  87

  
	
  Section 14.13

  	
   

  	
  Qualification of Indenture

  	
   

  	
  87

  
	
  Section 14.14.

  	
   

  	
  Table of Contents; Headings

  	
   

  	
  88

  
	
  Section 14.15

  	
   

  	
  Severability Clause

  	
   

  	
  88

  
	
  Section 14.16.

  	
   

  	
  Calculations

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  Form of the Security

  	
   

  	
   

  



 



 v















INDENTURE
dated as of June 11, 2007, between Cogent Communications Group, Inc., a
Delaware corporation (the “Company”), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee (the “Trustee”).


Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of the Company’s 1.00% Convertible Senior
Notes due 2027 (the “Securities”) on
the date hereof.


Article 1


Definitions and Incorporation by Reference


Section 1.01.  Definitions.


“Additional Interest” means all amounts, if any, payable
pursuant to Section 7 of the Registration Rights Agreement and Section 7.03 hereof.


“Affiliate” of any specified Person means any other Person
directly or indirectly controlling, 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 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 Conversion Rate”  means, for each $1,000 principal amount of
Securities to be converted, the sum of the Daily Conversion Rate Fractions for
each day during the 20 VWAP Trading Days of the related Observation Period for
such Securities.  


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


“Base Conversion Price”
on any day means, for each $1,000 principal amount of Securities, a dollar
amount (initially $49.18) equal to $1,000 divided by the Base Conversion Rate
in effect on such day. 


“Base Conversion Rate”
means, in respect of each $1,000 principal amount of Securities, 20.3355 shares
of Common Stock, subject to adjustments as set forth herein.


“Beneficial Owner” shall mean any Person who is considered a
beneficial owner of a security in accordance with Rule 13d-3 promulgated by the
SEC under the Exchange Act.













“Bid Solicitation Agent” means, initially,
the Trustee. The Company may change the Bid Solicitation Agent, but the Bid Solicitation
Agent shall not be the Company’s Affiliate. 


“Board of Directors” means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.


“Business Day” means each day that is not a Saturday, Sunday
or other day on which banking institutions in New York, New York are authorized
or required by law to close.


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


“Common Equity” of any Person means Capital Stock of such
Person that is generally entitled to (1) vote in the election of directors of
such Person or (2) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management or policies of such Person.


“Common Stock” means the common stock, par
value $0.001 per share, of the Company existing on the date of this Indenture
or any other shares of Capital Stock of the Company into which such Common
Stock shall be reclassified or changed, including, subject to Section 12.04 in
the case of a Public Acquirer Change of Control and Section 12.05, 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 Cogent Communications Group, Inc. or its
successors and assigns.


“Conversion Agent” means the office or agency appointed by
the Company where Securities may be presented for conversion.  The Conversion Agent appointed by the Company
shall initially be the Trustee.


“Corporate Trust Office”
means the office of the Trustee at which the trust created by this Indenture
shall, at any particular time, be principally administered, which office is, at
the date of this Indenture, located at 625 Marquette Avenue; N9311-110, Minneapolis, Minnesota  55479, Attention: Corporate Trust
Services, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Issuers).



 2
 









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


“Daily Conversion Rate Fraction” means, for any Securities to
be converted and each Daily VWAP Trading Day of the Observation Period for such
Securities, a number of shares of Common Stock determined as follows:


(i)                                     if
the Daily VWAP on such day is less than or equal to the Base Conversion Price
on such day, the Daily Conversion Rate Fraction for such day shall be the Base
Conversion Rate in effect on such day divided by 20; and


(ii)                                  if
the Daily VWAP on such day is greater than the Base Conversion Price on such
day, the Daily Conversion Rate Fraction for such day shall be equal to the
following fraction: 





provided that if such fraction is
equal to or greater than the Daily Share Cap, the Daily Conversion Rate for
such day shall be equal to the Daily Share Cap. 



“Daily Conversion Value” means, for any Securities to be
converted and for each of the 20 consecutive VWAP Trading days during the
Observation Period for such Securities, the product of (1) the Daily Conversion
Rate Fraction on such day and (2) the Daily VWAP of the Common Stock on such
day. 


“Daily Settlement Amount” means, for each $1,000 principal
amount of Securities being converted and for each of the 20 VWAP Trading Days
during the Observation Period for such Securities, an amount of cash and shares
of Common Stock, if any, as follows: (i) cash equal to the lesser of (x) $50
and (y) the Daily Conversion Value on such VWAP Trading Day, and (ii) if such
Daily Conversion Value exceeds $50, either (x) a number of shares of Common
Stock equal to the Maximum Deliverable Shares, (y) cash equal to the difference
between such Daily Conversion Value and $50, or (z) any combination elected by
the Company of shares of Common Stock and cash as set forth pursuant to Section
12.01(d). 


“Daily Share Cap” means, in respect of each $1,000 principal
amount of Securities, one-twentieth of 35.5872, as may be adjusted for any Base
Conversion Rate adjustment as set forth herein.   


“Daily VWAP” means, in respect of Securities to be converted
and for each of the 20 consecutive VWAP Trading Days during the Observation
Period for such Securities, the per share volume-weighted average price on the
primary



 3
 









exchange for the Common Stock as displayed under the
heading ‘‘Bloomberg VWAP’’ on Bloomberg page “CCOI UQ<EQUITY>
VAP<GO>“ (or its equivalent successor if such page is not available) in
respect of the period from the scheduled open of trading on the primary
exchange for the Common Stock to the scheduled close of trading on such
exchange on such VWAP Trading Day (or if such volume-weighted average price is
unavailable, or if such page or its equivalent is unavailable, the market value
of one share of our common stock on such VWAP Trading Day using a volume-weighted
method as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company).


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


“Definitive Securities” means certificated Securities that
are not Global Securities.


“Designated Event” will be deemed to have occurred upon a
Fundamental Change or a Termination of Trading. 



“DTC” means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company pursuant to the terms of this Indenture.


“Ex-Dividend Date” means, in respect of an issuance, a
dividend or distribution to holders of Common Stock, the first date on which
Common Stock trades on the applicable exchange or in the applicable market,
regular way, without the right to receive the issuance, dividend or
distribution in question.


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


“Fair Market Value” means the amount that a willing buyer
would pay a willing seller in an arm’s length transaction.


“Fundamental Change” shall be deemed to have occurred (after
any of the Securities are originally issued) if any of the following occurs:


(1)                                  any
Person files a Schedule 13D or Schedule TO (or any successor schedule, form or
report) pursuant to the Exchange Act disclosing that such Person has become the
Beneficial Owner, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of the Company’s
Capital Stock entitling the person to exercise 50% or more of the total voting
power of all shares of the Company’s Capital Stock



 4
 









entitled to vote
generally in elections of directors, other than an acquisition by the Company,
any of its Subsidiaries or any of the Company’s employee benefit plans; provided that this clause (1) shall not apply to a merger of
the Company with or into a wholly-owned Subsidiary of a corporation that,
immediately following the transaction or series of transactions, has a class of
common stock or American Depositary Receipts in respect of common stock traded
on a U.S. national securities exchange or quoted on another established
automated over-the-counter trading market in the United States if immediately
following the transaction or series of transactions (a) the holders of the
Company’s Common Stock immediately prior to the transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the voting power of all
shares of capital stock entitled to vote generally in the election of directors
of such parent corporation, (b) such parent corporation fully and
unconditionally guarantees all obligations of such continuing or surviving
corporation under the Securities and the Indenture on a senior basis on terms
and pursuant to a supplemental indenture reasonably satisfactory to the Trustee
and (c) the Securities become convertible into such shares of publicly traded
common stock or American Depository Receipts (subject to the provisions for
settlement described under Section 12.01(d) hereof); or


(2)                                  the
Company shall merge or consolidate with or into any other Person, other than a
Subsidiary, another Person merges with or into the Company, or the Company
shall convey, sell, transfer or lease all or substantially all of its assets to
another Person, other than any transaction:


(a)                                  involving
a merger or consolidation that does not result in a reclassification,
conversion, exchange or cancellation of the Company’s Common Stock;


(b)                                 pursuant
to which the holders of the Company’s Common Stock immediately prior to the
transaction have the entitlement to exercise, directly or indirectly, 50% or more
of the voting power of all shares of Capital Stock entitled to vote generally
in the election of directors of either (a) the continuing or surviving
corporation immediately after the transaction or (b) a corporation that
directly or indirectly owns 100% of the capital stock of such continuing or
surviving corporation; provided that,
in the case of this clause (b), such parent corporation fully and
unconditionally guarantees all obligations of such



 5
 









continuing or surviving
corporation under the Securities and the Indenture on a senior basis on terms
and pursuant to a supplemental indenture reasonably satisfactory to the Trustee
and in either case the Securities become convertible into shares of such
capital stock  (subject to the provisions
for settlement described under Section 12.01(d) hereof); or


(c)                                  which
is effected solely to change the Company’s jurisdiction of incorporation and
results in a reclassification, conversion or exchange of outstanding shares of
our common stock solely into shares of common stock of the surviving entity.


For purposes of the definition of Fundamental Change,
a Person includes any syndicate or group that would be deemed to be a “person”
under Section 13(d)(3) of the Exchange Act.


“GAAP” means generally accepted accounting principles set
forth in the opinions and pronouncements of the (i) Public Company
Accounting Oversight Board, (ii) statements and pronouncements of the
Financial Accounting Standards Board, (iii) in such other statements by
such other entity as may be approved by a significant segment of the accounting
profession as in effect from time to time and (iv) the rules and
regulations of the SEC governing to inclusion of financial statements in period
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and similar
written statements from the accounting staff of the SEC.


“Global Securities” means certificated Securities in global
form, without interest coupons, substantially in the form of Exhibit A hereto
and registered in the name of DTC or a nominee of DTC.


“Holder” means the Person in whose name a Security is
registered in the Securities Register.


“Incremental Share Factor” means 19.7254, subject to the same
proportional adjustment as the Base Conversion Rate as set forth herein.


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


“Initial Purchasers” means the several initial purchasers
named in Schedule I to the Purchase Agreement.


“Interest Payment Date” has the meaning set forth in Exhibit
A attached hereto.



 6
 









“Issue Date” means June 11, 2007. 


“Last Reported Sale Price”  of
the Common Stock (or any other security for which a Last Reported Sale Price
must be obtained) means, on any date,
the closing sale price per share, or if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices, on that date as reported
by NASDAQ, or if the Common Stock (or such other security) is not then listed
on NASDAQ, as reported by the principal U.S. securities exchange or automated
quotation service on which the Common Stock (or such other security) is traded
or quoted. If the Common Stock (or such other security) is not listed on NASDAQ
or listed on a United States national or regional securities exchange or
automated quotation service on the relevant date, the “Last Reported Sale Price”
shall be the last quoted bid price for the Common Stock (or such other security)
in the over-the-counter market on the relevant date as reported by Pink Sheets
LLC or similar organization. If the Common Stock (or such other security) is
not so quoted, the Last Reported Sale Price shall be the average of the
mid-point of the last bid and ask prices for the Common Stock (or such other
security) on the relevant date from each of at least three nationally
recognized independent investment banking firms, which may include the Initial
Purchasers, selected by the Company for this purpose. Any such determination
will be conclusive absent manifest error.


“Majority Owner” of a Person means the Person having “beneficial ownership” (as defined in Rule 13(d)(3) under the
Exchange Act) of more than 50% of the total voting power of all shares of the
respective Person’s Common Equity.


“Market Disruption Event” means (i) a failure by the primary
U.S. national or regional securities exchange or over-the-counter market on
which the Common Stock is listed or admitted to trading to open for trading
during its regular trading session or (ii) the occurrence or existence prior to
1:00 p.m. on any Scheduled Trading Day for an aggregate one half hour period of
any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the
Common Stock or in any options contracts or future contracts relating to the
Common Stock.


“Maximum Deliverable Shares” means, in respect of each $1,000
principal amount of Securities to be converted and the Daily Settlement Amount
for each VWAP Trading Day during the Observation Period for such Securities, a
number of shares of Common Stock equal to (A) the difference between the Daily
Conversion Value for such Securities on such day and $50, such difference divided
by (B) the Daily VWAP of the Common Stock for such day.  


“Observation Period” means (i) in respect of Securities (a) called
for redemption having a Conversion Date following a notice of redemption issued



 7
 









pursuant to Section 6.04, or (b) having a Conversion
Date following the 23rd Scheduled Trading Day preceding Stated Maturity, the 20
consecutive VWAP Trading Days beginning on, and including, the 22nd Scheduled Trading
Day preceding the Redemption Date or Stated Maturity, as applicable and (ii) otherwise,
the 20 consecutive VWAP Trading Day period beginning on, and including, the third
Trading Day immediately following the Conversion Date.


“Offering Memorandum” means the offering memorandum, dated June
6, 2007, relating to the offering by the Company of the Securities.


“Officer” means, with respect to any Person, the Chairman of
the Board (if an executive officer), the Chief Executive Officer, the President,
the Chief Operating Officer, the Chief Financial Officer, the Chief
Administrative Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice President of such Person.


“Officers’ Certificate” means a certificate signed on behalf
of the Company by two Officers of the Company that meets the requirements of Section
14.05 hereof.


“Original Issue Discount” means the amount of ordinary
interest income on a Security that must be accrued as original issue discount
for United States federal income tax purposes pursuant to Section 1271 et seq. of the Internal Revenue Code of 1986, as amended,
and related Treasury Regulations. 


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


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


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


“Public Acquirer Change of Control” means a Fundamental
Change in which the acquirer has a class of common stock (or American
Depositary Receipts) traded on a U.S. national securities exchange or quoted on
another established automated over-the-counter trading market in the U.S. or which
will be so traded or quoted when issued or exchanged in connection with such



 8
 









Fundamental Change (the “Public
Acquirer Common Stock”).  If
an acquirer does not itself have a class of common stock (or American
Depositary Receipts) satisfying the foregoing requirement, it shall be deemed
to have Public Acquirer Common Stock if a corporation that directly or
indirectly is the Majority Owner of the acquirer has a class of common stock (or
American Depositary Receipts) satisfying the foregoing requirement; in such
case, all references to Public Acquirer Common Stock shall refer to such class
of common stock (or American Depositary Receipts or shares in respect thereof).


“Purchase Agreement” means the Purchase Agreement dated as of
June 6, 2007 between the Company and the Initial Purchasers relating to the
initial purchase and sale of the Securities.


“QIB” means any “qualified institutional buyer” (as such term
is defined in Rule 144A).


“Redemption Date” means, with respect to any redemption of
Securities, the date of redemption with respect thereto.


“Registration Rights Agreement” means the Registration Rights
Agreement dated as of the Issue Date among the Initial Purchasers and the
Company.


“Regular Record Date” for the payment of interest on the
Securities (including Additional Interest, if any), means the June 1 (whether
or not a Business Day) immediately preceding an Interest Payment Date on June 15
and December 1 (whether or not a Business Day) immediately preceding an Interest
Payment Date on December 15.


“Rule 144A” means Rule 144A under the Securities Act.


“Scheduled Trading Day” means a day that is scheduled to be a
VWAP Trading Day.


“SEC” means the United States Securities and Exchange
Commission.


“Securities” has the meaning ascribed to it in the second
introductory paragraph of this Indenture.


“Securities Act” means the Securities Act of 1933 (15 U.S.C.
§§ 77a – 77aa), as amended, and the rules and regulations of the SEC
promulgated thereunder.


“Securities Custodian” means the custodian with respect to
the Global Security (as appointed by DTC), or any successor Person thereto and
shall initially be the Trustee.



 9
 









“Shelf Registration Statement” shall have the meaning
contemplated by and in accordance with the terms of the Registration Rights
Agreement.


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


“Stated Maturity” means June 15, 2027.


“Stock Price” means, in respect of a Fundamental Change, the
price per share of Common Stock paid in connection with such Fundamental
Change, which shall be equal to (i) if holders of Common Stock receive only
cash in such 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 over the ten Trading Day period ending on the Trading Day preceding the Effective
Date of such Fundamental Change.


“Subsidiary” means, with respect to any Person, (a) any
corporation, association or other business entity of which more than 50% of the
total Common Equity is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (b) any other Person whose results for financial
reporting purposes are consolidated with those of such Person in accordance
with GAAP.   


“Termination of Trading” will be deemed to have occurred if
the Common Stock, or any other capital stock or American Depositary Receipts in
respect of shares of capital stock into which the Securities are convertible
pursuant to the terms of the Indenture, is not listed for trading on a U.S.
national securities exchange or quoted on an established automated
over-the-counter trading market in the United States.


“TIA” or “Trust Indenture Act”
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb), as in effect
on the date of this Indenture, except as provided in Section 10.03.


“Trading Day” means a day on which trading in securities
generally occurs on NASDAQ or, if the Common Stock is not then listed on
NASDAQ, on the principal national or regional securities exchange on which the
Common Stock is then listed or quoted or, if the Common Stock is not listed on
NASDAQ or a national or regional securities exchange or automated quotation
service, on the principal other market on which the Common Stock is then traded
or quoted. If the Common Stock is not so traded or quoted, “Trading Day” means
Business Day. 



 10















“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 $2,000,000 principal amount of the Securities at approximately 3:30
p.m., New York City time, on such determination date from two independent
nationally recognized securities dealers the Company will select, but if only
one such bid can reasonably be obtained by the Bid Solicitation Agent, this one
bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at
least one bid for $2,000,000 principal amount of the Securities from a
nationally-recognized securities dealer, then the Trading Price of the
Securities will be, for purposes of determining the Trading Price pursuant to Section
12.01(a)(ii), deemed to be less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the Applicable Conversion Rate on such
Trading Day.


“Trust Officer” means, when used with respect to the Trustee,
the officer within the corporate trust department of the Trustee having direct
responsibility for the administration of this Indenture.


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


“UCC” means the Uniform Commercial Code as in effect in the
State of New York.


“VWAP Trading Day” means any day (i) on which there is no
Market Disruption Event and (ii) is a Trading Day. A VWAP Trading Day shall
only include those days that have a scheduled closing time of 4:00 p.m. (New
York City time) or the then standard closing time for regular trading on the
relevant exchange or over-the-counter market. 


Section 1.02.  Other Definitions.  


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Additional
  Shares”

  	
   

  	
  12.03(a)

  
	
  “Agent Members”

  	
   

  	
  2.09(a)

  
	
  “Authenticating
  Agent”

  	
   

  	
  2.04

  
	
  “Cash
  Percentage”

  	
   

  	
  Section 12.01(d)

  
	
  “Company Notice”

  	
   

  	
  11.03(a)

  
	
  “Company Notice
  Date”

  	
   

  	
  11.03(a)

  
	
  “Company Order”

  	
   

  	
  2.04

  
	
  “Conversion
  Date”

  	
   

  	
  12.01(c)

  
	
  “Conversion
  Obligation”

  	
   

  	
  12.01(d)

  
	
  “Defaulted
  Interest”

  	
   

  	
  2.15

  
	
  “Designated
  Event Purchase Date”

  	
   

  	
  11.01

  
	
  “Designated
  Event Purchase Notice”

  	
   

  	
  11.01(a)

  



 



 11
 









 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Designated
  Event Purchase Price”

  	
   

  	
  11.01

  
	
  “Effective Date”

  	
   

  	
  12.03(b)

  
	
  “Event of
  Default”

  	
   

  	
  7.01

  
	
  “Global Security
  Legend”

  	
   

  	
  2.03(iv)

  
	
  “Legal Holiday”

  	
   

  	
  14.08

  
	
  “Net Share
  Settlement”

  	
   

  	
  Section 12.01(d)

  
	
  “Paying Agent”

  	
   

  	
  2.05

  
	
  “Physical
  Settlement”

  	
   

  	
  Section 12.01(d)

  
	
  “Public Acquirer
  Common Stock”

  	
   

  	
  1.01

  
	
  “Purchase Date”

  	
   

  	
  11.02(a)

  
	
  “Purchase
  Notice”

  	
   

  	
  11.02(a)

  
	
  “Purchase Price”

  	
   

  	
  11.02(a)

  
	
  “Redemption
  Price”

  	
   

  	
  6.01(b)

  
	
  “Reference
  Property”

  	
   

  	
  12.05

  
	
  “Registrar”

  	
   

  	
  2.05

  
	
  “Reorganization
  Event”

  	
   

  	
  12.05

  
	
  “Restricted
  Securities”

  	
   

  	
  2.03

  
	
  “Restricted
  Securities Legend”

  	
   

  	
  2.03

  
	
  “Securities
  Register”

  	
   

  	
  2.05

  
	
  “Settlement
  Amount”

  	
   

  	
  12.01(d)

  
	
  “Special
  Interest Payment Date”

  	
   

  	
  2.15(a)

  
	
  “Special Record
  Date”

  	
   

  	
  2.15(a)

  
	
  “Spin-Off”

  	
   

  	
  12.02(c)

  
	
  “Successor
  Company”

  	
   

  	
  4.01(a)

  



 


Section 1.03.  Incorporation by Reference of
Trust Indenture Act.  This Indenture
is subject to the mandatory provisions of the TIA which are incorporated by
reference in and made a part of this Indenture. 
The following TIA terms have the following meanings:


“Commission” means the SEC.


“indenture securities” means the Securities.


“indenture security holder” means a Holder.


“indenture to be qualified” means this Indenture.


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


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



 12
 









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


Section 1.04.  Rules of Construction.  Unless the context otherwise
requires:


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


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


(c)                        “or” is
not exclusive;


(d)                       “including”
means including without limitation;


(e)                        words in
the singular include the plural and words in the plural include the singular;


(f)                          the
principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP; and


(g)                       the
principal amount of any Preferred Stock shall be the greater of (i) the maximum
liquidation value of such Preferred Stock and (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock.


Article 2


the securities


Section 2.01.  Title; Amount and Issue of
Securities; Principal and Interest.  (a)
The Securities shall be known and designated as the “1.00% Convertible Senior
Notes due 2027” of the Company.  The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is initially limited to $200,000,000 (or
$220,000,000 if the Initial Purchasers exercise their over-allotment option in
full pursuant to the Purchase Agreement), except for Securities authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu
of other Securities pursuant to Section 2.03, 2.04, 2.08, 2.09, 2.10, 2.11, 2.13,
6.07, 10.05, 11.03, or 12.01; provided
that additional Securities may be issued in an unlimited aggregate principal
amount from time to time thereafter as set forth pursuant to Section 2.04, but
only if such additional Securities to be issued are fungible with the Securities
initially issued



 13
 









and sold pursuant to the Offering Memorandum for United
States federal income tax purposes.  The
Securities shall be issuable in denominations of $1,000 or multiples thereof.


(b)                       The
Securities shall mature on June 15, 2027 unless earlier converted, redeemed or
repurchased in accordance with the provisions hereof.


(c)                        Interest on
the Securities shall accrue from and including the date specified on the face
of such Securities until the principal thereof is paid or made available for
payment.  Interest shall be payable
semiannually in arrears on each Interest Payment Date, commencing December 15,
2007.  For purposes of this Indenture and
the Securities, unless the context clearly requires otherwise, references to “interest”
shall include Additional Interest.


(d)                       A Holder of
any Security at 5:00 p.m., New York City time, on a Regular Record Date shall
be entitled to receive interest (including Additional Interest, if any), on
such Security on the corresponding Interest Payment Date, notwithstanding the
conversion of such Securities at any time after the close of business on such
Regular Record Date.  Securities
surrendered for conversion during the period from 5:00 p.m., New York City time,
on any Regular Record Date to 9:00 a.m., New York City time, on the corresponding
Interest Payment Date must be accompanied by payment of an amount equal to the
interest (including Additional Interest, if any) payable on such Securities.  Notwithstanding the foregoing, no such
payment of interest (including Additional Interest) need be made by any
converting Holder (i) if the Company has specified a Redemption Date that is
after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, (ii) if the Company has specified a Designated Event Purchase Date
that is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, (iii) to the extent of any overdue interest (including Additional
Interest, if any) existing at the time of conversion of such Security or (iv)
in respect of any Conversion Date occurring after the Regular Record Date
immediately preceding Stated Maturity.  Except
as described above, no interest, Additional Interest, if any, on converted
Securities will be payable by the Company on any Interest Payment Date subsequent
to the date of conversion, and delivery of shares of Common Stock, cash or the
combination of cash and shares of Common Stock, if applicable, pursuant to Article
12 hereunder, together with any cash payment for any fractional share, upon
conversion will be deemed to satisfy in full the Company’s obligation to pay
the principal amount of the Securities and accrued and unpaid interest and Additional
Interest, if any, to, but not including, the related Conversion Date.


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



 14
 









(f)                          Principal
of, and any premium on, Definitive Securities shall be payable at the office or
agency of the Company maintained for such purpose, which initially shall be the
corporate trust office of the Trustee. 
Interest (including Additional Interest, if any), on Definitive
Securities will be payable (i) to Holders having an aggregate principal amount
of $1,000,000 or less, by check mailed to the Holders of these Securities and (ii)
to Holders having an aggregate principal amount of more than $1,000,000, either
by check mailed to each Holder or, upon application by a Holder to the
Registrar not later than the relevant Regular Record Date, by wire transfer in
immediately available funds to such Holder’s account within the United States,
which application shall remain in effect until the Holder notifies, in writing,
the Registrar to the contrary.


Section 2.02.  Form of Securities.


(a)                        Except as
otherwise provided pursuant to this Section 2.02, the Securities are issuable
in fully registered form without coupons in substantially the form of Exhibit A
hereto, with such applicable legends as are provided for in Section 2.03.  The Securities are not issuable in bearer
form.  The terms and provisions contained
in the form of Security shall constitute, and are hereby expressly made, a part
of this Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. 
Any of the Securities may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Securities may
be listed or designated for issuance, or to conform to usage.


(b)                       The
Securities shall be issued initially in the form of one or more permanent Global
Securities, with the applicable legends as provided in Section 2.03.  Each Global Security shall be duly executed
by the Company and authenticated and delivered by the Trustee, and shall be
registered in the name of DTC or its nominee and retained by the Trustee, as Securities
Custodian, at its corporate trust office, for credit to the accounts of the
Agent Members holding the Securities evidenced thereby.  The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as Securities Custodian, and of DTC or its
nominee, as hereinafter provided.


Section 2.03.  Legends.  Each Security issued hereunder
shall, upon issuance, bear the legend set forth in Section 2.03(i), and each
Common Stock certificate representing shares of the Common Stock issued upon
conversion of any Security issued hereunder, shall, upon issuance, unless as
otherwise set forth



 15
 









below, bear the legend set forth in 0 (each such
legend, a “Restricted Securities Legend”),
and such legend shall not be removed except as provided in Section 2.03(iii).  Each Security that bears or is required to
bear the Restricted Securities Legend set forth in Section 2.03(i) (together
with each Common Stock certificate representing shares of the Common Stock
issued upon conversion of such Security that bears or is required to bear the
Restricted Securities Legend set forth in 0, collectively, the “Restricted Securities”) shall be subject to the restrictions
on transfer set forth in this Section 2.03 (including the Restricted Securities
Legend set forth below), and the Holder of each such Restricted Security, by
such Holder’s acceptance thereof, shall be deemed to have agreed to be bound by
all such restrictions on transfer.


As
used in Section 2.03, the term “transfer” encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.


(i)                                     Restricted Securities Legend for Securities.  Except as provided in Section
2.03(iii), any certificate evidencing such Security (and all Securities issued
in exchange therefor or substitution thereof, other than stock certificates
representing shares of the Common Stock, if any, issued upon conversion thereof
which shall bear the legend set forth in 0, if applicable) shall bear a
Restricted Securities Legend in substantially the following form:


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE ‘‘SECURITIES ACT’’), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY,
BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT IS A ‘‘QUALIFIED INSTITUTIONAL
BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (‘‘RULE 144A’’)); (2)
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY
OF THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY UNDER
RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR



 16
 









RESALE
PURSUANT TO RULE 144A, IN COMPLIANCE WITH RULE 144A TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, AND IN ANY CASE A CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THIS SECURITY PURSUANT TO CLAUSE 2(B) ABOVE OR UPON ANY TRANSFER OF THIS
SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).”


(ii)                                  Restricted Securities Legend for the Common Stock Issued Upon
Conversion of the Securities.  Each
stock certificate representing Common Stock issued upon conversion of
Securities bearing a Restricted Securities Legend will, subject to the
availability of a Shelf Registration Statement and registration thereunder as
set forth in the Registration Rights Agreement, bear the following legend:


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, (1) REPRESENTS THAT IT
IS A ‘‘QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT (‘‘RULE 144A’’)); (2) AGREES ON ITS OWN BEHALF, AND ON BEHALF OF
ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THIS SECURITY UNDER RULE 144(k) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS



 17
 









BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND
WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (C) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRANSFER AGENT’S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, AND IN ANY CASE A CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(B) ABOVE OR UPON ANY TRANSFER OF
THIS SECURITY UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION).”


(iii)                               Removal of the Restricted Securities Legends.  The
Restricted Securities Legend may be removed from any Security or any Common
Stock certificate representing shares of the Common Stock issued upon
conversion of any Security if there is delivered to the Company such
satisfactory evidence, which may include an opinion of independent counsel, as
may be reasonably required by the Company, that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers of such Security or shares of the Common Stock issued upon conversion
of Securities, as the case may be, will not violate the registration
requirements of the Securities Act or the qualification requirements under any
state securities laws.  Upon provision of
such satisfactory evidence, at the written direction of the Company, (x) in
the case of a Security, the Trustee shall authenticate and deliver in exchange
for such Security another Security or Securities having an equal aggregate
principal amount that do not bear such legend or (y) in the case of a
Common Stock certificate representing shares of the Common Stock, the transfer
agent for the Common Stock shall authenticate and deliver in exchange for the
Common Stock certificate or certificates representing such shares of Common
Stock bearing such legend, one or more new Common Stock certificates
representing a like aggregate number of shares of Common Stock that do not bear
such legend.  If the Restricted
Securities Legend has been removed from a Security or Common Stock certificates
representing shares of the Common Stock issued upon conversion of any Security
as provided above, no other Security issued in exchange for all or any part of
such Security, or no other Common Stock certificates issued in exchange for
such Common Stock, shall bear such legend, unless the Company has reasonable
cause to believe that such other Security is a “restricted security” (or such
shares of Common Stock



 18
 









are “restricted
securities”) within the meaning of Rule 144 and instructs the Trustee in
writing to cause a Restricted Securities Legend to appear thereon.


Any
Security (or Security issued in exchange or substitution therefor) as to which
the conditions for removal of the Restricted Securities Legend set forth in Section
2.03(ii) have been satisfied may, upon surrender of such Security for exchange
to the Registrar in accordance with the provisions of Section 2.08, be
exchanged for a new Security or Securities, of like tenor and aggregate
principal amount, which shall not bear the Restricted Securities Legend
required by Section 2.03(i).


Any
Common Stock certificate representing shares of Common Stock issued upon
conversion of any Security as to which the conditions for removal of the
Restricted Securities Legend set forth in 0 have been satisfied may, upon
surrender of the Common Stock certificates representing such shares of Common
Stock for exchange in accordance with the procedures of the transfer agent for
the Common Stock, be exchanged for a new Common Stock certificate or certificates
representing a like aggregate number of shares of Common Stock, which shall not
bear the Restricted Securities Legend.


(iv)                              Global Security Legend.  Each Global Security
shall also bear the following legend (the “Global Security Legend”)
on the face thereof:


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


TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH



 19
 









THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED HERETO.”


(v)                                 Legend for Definitive Securities.  Definitive Securities,
in addition to the legend set forth in Section 2.03(i), will also bear a legend
substantially in the following form:


“THIS SECURITY WILL NOT
BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS
THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD NO
SECURITIES.”


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


A
Security shall not be valid until an authorized signatory of the Trustee
manually authenticates the Security.  The
signature of the Trustee on a Security shall be conclusive evidence that such
Security has been duly and validly authenticated and issued under this
Indenture.  A Security shall be dated the
date of its authentication.


Subject
to Section 2.01, at any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company in an unlimited aggregate principal amount to the Trustee for
authentication, together with a written order of the Company signed by two
Officers or by an Officer and an Assistant Secretary of the Company (the “Company Order”) for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.  All Securities issued on the
Issue Date shall be identical in all respects with any such Securities
authenticated and delivered thereafter, other than issue dates, the date from
which interest accrues, appropriate CUSIP numbers or other identifying
notations and any changes relating thereto. 
Notwithstanding anything to the contrary contained in this Indenture,
subject to Section 2.12, all Securities issued under this Indenture shall vote
and consent together on all matters as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.


The
Trustee may appoint an agent (the “Authenticating Agent”)
reasonably acceptable to the Company to authenticate the Securities.  Initially, the Trustee will act as the Authenticating
Agent.  Any such instrument shall be
evidenced by an instrument signed by a Trust Officer of the Trustee, a copy of
which shall be furnished to the Company. 
Unless limited by the terms of such



 20
 









appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent.  An Authenticating Agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.


In
case the Company, pursuant to Article 4, shall be consolidated or merged with
or into, or shall convey, transfer or lease all or substantially all of its
properties and assets to, any Person, and the Successor Company, if not the
Company, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article 4, any of the Securities authenticated or delivered prior
to such consolidation, merger, conveyance, transfer or lease may, from time to
time, at the request of the Successor Company, be exchanged for other
Securities executed in the name of the Successor Company with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon receipt of a Company Order of the Successor
Company, shall authenticate and deliver Securities as specified in such order
for the purpose of such exchange.  If
Securities shall at any time be authenticated and delivered in any new name of
a Successor Company pursuant to this Section 2.04 in exchange or substitution
for or upon registration of transfer of any Securities, such Successor Company,
at the option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time outstanding for Securities authenticated
and delivered in such new name.


Section 2.05.  Registrar and Paying
Agent.  The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the “Registrar”) and
an office or agency where Securities may be presented for payment (the “Paying Agent”).  The
Registrar shall keep a register of the Securities and of their transfer and
exchange (the “Securities Register”).  The Company may have one or more
co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent and the term “Registrar” includes any co-registrar.


The
Company shall enter into an appropriate agency agreement with any Registrar or
Paying Agent not a party to this Indenture, which shall incorporate the terms
of the TIA.  The agreement shall
implement the provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the
name and address of each such agent.  If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 8.07.  The Company or any of
its domestically organized, wholly owned Subsidiaries may act as Paying Agent,
Registrar or transfer agent.



 21
 









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


Section 2.06.  Paying Agent to Hold Money in
Trust.  By no later than 11:00
a.m., New York City time, on the date on which any principal of, interest (including
Additional Interest, if any) and premium, if any, on any Security is due and
payable, the Company shall deposit with the Paying Agent a sum sufficient in
immediately available funds to pay such principal, interest (including
Additional Interest, if any) and premium, if any, when due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the payment of principal of, interest (including Additional
Interest, if any) or premium, if any, on the Securities and shall notify the
Trustee in writing of any default by the Company in making any such
payment.  If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. 
The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any
funds disbursed by such Paying Agent. 
Upon complying with this Section 2.06, the Paying Agent (if other than
the Company or a Subsidiary) shall have no further liability for the money
delivered to the Trustee.  Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.


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


Section 2.08.  General Provisions Relating to
Transfer and Exchange.  The
Securities are issuable only in registered form.  A Holder may transfer a



 22
 









Security only by written application to the Registrar
stating the name of the proposed transferee and otherwise complying with the
terms of this Indenture.  No such
transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Securities Register. 
Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Holder of such Global Security (or its agent) and that ownership of a
beneficial interest in the Global Security shall be required to be reflected in
a book-entry.


When
Securities are presented to the Registrar with a request to register the
transfer or to exchange them for an equal aggregate principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder thereof
or by an attorney who is authorized in writing to act on behalf of the
Holder).  Subject to Section 2.04, to
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar’s request.  No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge required by law or permitted under the terms of
this Indenture.


Neither
the Company nor the Registrar shall be required to exchange or register a
transfer of any Securities:


(a)                        selected
for redemption under Article 6 or, if a portion of any Security is selected for
redemption, the portion thereof selected for redemption; or


(b)                       surrendered
for conversion or, if a portion of any Security is surrendered for conversion,
the portion thereof surrendered for conversion. 


The
Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between beneficial owners of 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.



 23
 









Section 2.09.  Book-Entry Provisions for the
Global Securities.  (a) The
Global Securities initially shall:


	
  (i)

  	
   

  	
  be registered in
  the name of DTC (or a nominee thereof);

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  be delivered to
  the Trustee as Securities Custodian;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  bear the
  Restricted Securities Legend set forth in Section 2.03(i); and

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  bear the Global
  Security Legend set forth in Section 2.03(iv).

  



 


Members
of, or participants in, DTC (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC, or the Trustee as its custodian, or under such
Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company, or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. 
Notwithstanding the foregoing, nothing contained herein shall prevent
the Company, the Trustee or any agent of the Company, or Trustee from giving
effect to any written certification, proxy or other authorization furnished by
DTC or impair, as between DTC and the Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Security.


(b)                       The Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members 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.


(c)                        A Global
Security may not be transferred, in whole or in part, to any Person other than
DTC (or a nominee thereof) or to a successor thereof (or such successor’s
nominee), and no such transfer to any such other Person may be registered.  Beneficial interests in a Global Security may
be transferred in accordance with the rules and procedures of DTC and the
provisions of Section 2.10.


(d)                       If at any
time:


(i)                                     DTC
notifies the Company in writing that it is unwilling or unable to continue to
act as depositary for the Global Securities and a successor depositary for the
Global Securities is not appointed by the Company within 90 days of such
notice;



 24
 









(ii)                                  DTC
ceases to be registered as a “clearing agency” under the Exchange Act and a
successor depositary for the Global Securities is not appointed by the Company
within 90 days of such cessation; or


(iii)                               an
Event of Default has occurred and is continuing and the Registrar has received
a request from DTC for the issuance of Definitive Securities in exchange for
such Global Security or Global Securities;


the Securities Custodian shall surrender such Global
Security or Global Securities to the Trustee for cancellation and the Company
shall execute, and the Trustee, upon receipt of an Officers’ Certificate and
Company Order for the authentication and delivery of Securities, shall
authenticate and deliver in exchange for such Global Security or Global
Securities, Definitive Securities in an aggregate principal amount equal to the
aggregate principal amount of such Global Security or Global Securities.  Such Definitive Securities shall be
registered in such names as DTC (or any nominee thereof) shall identify in
writing as the beneficial owners of the Securities represented by such Global
Security or Global Securities.


(e)                        Notwithstanding
the foregoing, in connection with any transfer of beneficial interests in a
Global Security to the beneficial owners thereof pursuant to Section 2.09(d),
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of such Global Security in an amount equal to the
principal amount of the beneficial interests in such Global Security to be
transferred.


Section 2.10.  Special Transfer
Provisions.  Unless a Security
is no longer a Restricted Security, the following provisions shall apply to any
sale, pledge or other transfer of such Securities:


(a)                        Transfer of Securities to a QIB.  The following provisions shall apply with
respect to the registration of any proposed transfer of Securities to a QIB:


(i)                                     If
the Securities to be transferred consist of a beneficial interest in the Global
Securities, the transfer of such interest may be effected only through the
book-entry systems maintained by DTC.


(ii)                                  If
the Securities to be transferred consist of Definitive Securities, the Registrar
shall register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Security stating
(or has otherwise advised the Company and the Registrar in writing) that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed a certification stating or has otherwise advised the
Company and the Registrar in writing that:



 25















(A)                it is purchasing
the Securities for its own account or an account with respect to which it
exercises sole investment discretion;


(B)                  it and any such
account is a QIB within the meaning of Rule 144A;


(C)                  it is aware that
the sale to it is being made in reliance on Rule 144A;


(D)                 it acknowledges
that it has received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information; and


(E)                   it is aware
that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A.


(b)                       General.  By its
acceptance of any Security bearing the Restricted Securities Legend, each
Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and agrees that it will transfer such
Security only as provided in this Indenture. 
The Registrar shall not register a transfer of any Security unless such
transfer complies with the restrictions on transfer of such Security set forth
in this Indenture.  The Registrar shall
be entitled to receive and rely on written instructions from the Company
verifying that such transfer complies with such restrictions on transfer.  In connection with any transfer of Securities,
each Holder agrees by its acceptance of the Securities to furnish the Registrar
or the Company such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other
information.


The
Registrar shall retain copies of all certifications, letters, notices and other
written communications received pursuant to Section 2.09 hereof or this Section
2.10.  The Company shall have the right
to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.


Section 2.11.  Mutilated, Destroyed, Lost or Wrongfully
Taken Securities.  If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if



 26
 









the requirements of Section 8-405 of the UCC are met,
such that the Holder (a) notifies the Company or the Trustee within a
reasonable time after such Holder has notice of such loss, destruction or
wrongful taking and the Registrar has not registered a transfer prior to
receiving such notification, (b) makes such request to the Company or Trustee
prior to the Security being acquired by a protected purchaser as defined in
Section 8-303 of the UCC and (c) satisfies any other reasonable requirements of
the Trustee.  Such Holder shall furnish
an indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent and the Registrar from any
loss which any of them may suffer if a Security is replaced, and, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and make available for delivery, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or wrongfully taken Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.


In case any such mutilated, destroyed, lost or wrongfully
taken Security has become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.


Upon the issuance of any new Security under this Section
2.11, the Company may require the payment by the Holder 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)
in connection therewith.


Every new Security issued pursuant to this Section
2.11 in lieu of any mutilated, destroyed, lost or wrongfully taken Security
shall constitute an original additional contractual obligation of the Company and
any other obligor upon the Securities, whether or not the mutilated, destroyed,
lost or wrongfully taken Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and ratably
with any and all other Securities duly issued hereunder.


The provisions of this Section 2.11 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 wrongfully
taken Securities.


Section 2.12.  Outstanding Securities.  Securities outstanding at any time
are all Securities authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.12 as not outstanding.  A Security does
not cease to be outstanding in the event the Company or an Affiliate of the
Company holds the Security; provided,
however, that (i) for purposes of determining which Securities are
outstanding for consent



 27
 









or voting purposes hereunder, the provisions of Section
14.06 shall apply and (ii) in determining whether the Trustee shall be
protected in making a determination whether the Holders of the requisite
principal amount of outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment
or modification hereunder, or relying upon any such quorum, consent or vote,
only Securities as to which a Trust Officer of the Trustee has received an
Officers’ certificate stating that such Securities are held by the Company or an
Affiliate of the Company shall not be considered outstanding.


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


If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a Redemption Date or at Stated Maturity,
money sufficient to pay all principal, premium, if any, and interest payable on
that date with respect to the Securities (or portions thereof) to be redeemed
or maturing, as the case may be, then on and after that date such Securities
(or portions thereof) cease to be outstanding and interest (including
Additional Interest, if any) on them ceases to accrue.


Section 2.13.  Temporary Securities.  In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Company may prepare and upon
receipt of a Company Order the Trustee shall authenticate temporary
Securities.  Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities.  Without unreasonable delay, the Company shall
prepare and upon receipt of a Company Order the Trustee shall authenticate
Definitive Securities.  After the
preparation of Definitive Securities, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be 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 make available for delivery in exchange therefor, one or more
Definitive Securities representing an equal principal amount of
Securities.  Until so exchanged, the
Holder of temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as a Holder of Definitive Securities.


Section 2.14.  Cancellation.  The Company at any time may
deliver Securities to the Trustee for cancellation.  The Registrar, the Conversion Agent and the
Paying Agent shall forward to the Trustee any Securities surrendered to



 28
 









them for registration of transfer, exchange,
conversion or payment.  The Trustee and
no one else shall cancel all Securities surrendered for registration of
transfer, exchange, conversion, payment or cancellation and dispose of such
Securities in accordance with its internal policies and customary procedures
including delivery of a certificate describing such Securities disposed of (subject
to the record retention requirements of the Exchange Act).  The Company may not issue new Securities to
replace Securities it has paid for or converted or delivered to the Trustee for
cancellation for any reason other than in connection with a transfer or
exchange.


At
such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, transferred, redeemed, repurchased,
converted or canceled, such Global Security shall be returned by the Securities
Custodian to the Trustee for cancellation or retained and canceled by the Trustee.  At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for Definitive
Securities, transferred in exchange for an interest in another Global Security,
redeemed, repurchased, converted or canceled, the principal amount of
Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Trustee (if it is then
the Securities Custodian for such Global Security) with respect to such Global
Security, by the Trustee or the Securities Custodian, to reflect such
reduction.


Section 2.15.  Payment of Interest; Defaulted
Interest.  Interest (including
Additional Interest, if any) on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name such Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date
for such payment at the office or agency of the Company maintained for such
purpose pursuant to Section 2.05.  The
Company shall pay interest upon any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of accrued and unpaid interest at the rate borne by the Securities
from the required payment date.


Any
interest on any Security which is payable, but is not paid when the same
becomes due and payable and such nonpayment continues for a period of 30 days,
shall forthwith cease to be payable to the Holder on the Regular Record Date,
and such interest and (to the extent lawful) interest on such interest at the
rate borne by the Securities (such interest and interest thereon herein
collectively called “Defaulted Interest”)
shall be paid by the Company at its election, in each case, as provided in
clause (a) or (b) below:


(a)                        The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective predecessor Securities) are
registered at the close of business on a Special Record Date (as



 29
 









defined below) for the payment of such Defaulted
Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the proposed
payment (the “Special Interest Payment Date”),
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. 
Thereupon the Trustee shall fix a record date (the “Special
Record Date”) for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the Special
Interest Payment Date and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. 
The Trustee shall promptly notify the Company of such Special Record
Date, and in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date and
Special Interest Payment Date therefor to be given in the manner provided for
in Section 14.02, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest Payment
Date therefor having been so given, such Defaulted Interest shall be paid on
the Special Interest Payment Date to the Persons in whose names the Securities
(or their respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).


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


Subject
to the foregoing provisions of this Section 2.15, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest (including Additional
Interest, if any) accrued and unpaid, and to accrue, which were carried by such
other Security.


Section 2.16.  Computation of Interest.  Interest (including Additional Interest,
if any) on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.


Section 2.17.  CUSIP and ISIN Numbers.  The Company in issuing the
Securities may use “CUSIP” and “ISIN” numbers (if then generally in use) and,
if



 30
 









so, the Trustee shall use “CUSIP” and “ISIN” numbers
in notices of redemption as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such CUSIP or ISIN numbers.  The Company shall promptly notify the Trustee
in writing of any change in the CUSIP and ISIN numbers.


Article 3


Covenants


Section 3.01.  Payment of Securities.  The Company shall promptly pay the
principal of, interest (including Additional Interest, if any) and premium, if
any, on the Securities on the dates and in the manner provided in the
Securities and in this Indenture. 
Principal, interest (including Additional Interest, if any) and premium,
if any, shall be considered paid on the date due if by 11:00 a.m., New York
City time, on such date the Trustee or the Paying Agent holds in accordance
with this Indenture immediately available funds sufficient to pay all
principal, interest (including Additional Interest, if any) and premium, if
any, then due.


Section 3.02.  Maintenance of Office or
Agency.  The Company will
maintain an office or agency where the Securities may be presented or
surrendered for payment, where, if applicable, the Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served.  The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency.  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 to the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


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 any such designation.  The Company will give prompt written notice
to the Trustee of any such designation or rescission and any change in the
location of any such other office or agency.


Section 3.03.  Corporate Existence.  Except as otherwise provided in Article
4, the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its existence and (ii) the material
rights (charter and statutory), licenses and franchises of the Company, except,
in



 31
 









the case of clause (ii), to the extent the
Company otherwise reasonably determines it no longer desirable.


Section 3.04.  Payment of Taxes and Other
Claims.  The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of
the Company), are being maintained in accordance with GAAP or where the failure
to effect such payment will not be disadvantageous to the Holders.


Section 3.05.  Compliance Certificate.  The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers’ Certificate, one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default or Event of Default and whether or not the signers know of any
Default or Event of Default that occurred during such period.  If they do, the certificate shall describe each
Default or Event of Default, its status and the action the Company is taking or
proposes to take with respect thereto. 
The Company also shall comply with TIA § 314(a)(4).


Section 3.06.  Further Instruments and
Acts.  Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.


Section 3.07.  Statement by Officers as to
Default.  The Company shall
deliver to the Trustee, within 30 days after the Company becomes aware of the
occurrence of any Event of Default or Default, an Officers’ Certificate setting
forth the details of such events which would constitute an Event of Default or Default,
its status and the action which the Company proposes to take with respect
thereto.


Section 3.08.  Additional Interest.  If Additional Interest is payable
by the Company pursuant to the Registration Rights Agreement or Section 7.03,
the Company shall deliver to the Trustee an Officers’ Certificate to that
effect stating



 32
 









(i) the amount of such Additional Interest that is
payable and (ii) the date on which such Additional Interest is payable.  Unless and until a Trust Officer of the
Trustee receives such a certificate, the Trustee may assume without inquiry
that no Additional Interest is payable. 
If the Company has paid Additional Interest directly to the persons
entitled to it, the Company shall deliver to the Trustee an Officers’
Certificate setting forth the particulars of such payment.


Section 3.09.  Calculation Of 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 Original Issue Discount (including daily rates
and accrual periods) accrued on the Securities as of the end of such year and
(ii) such other specific information relating to such Original Issue Discount
as may then be reasonably requested by the Trustee and relevant under the
Internal Revenue Code of 1986, as amended from time to time, or the Treasury
regulations promulgated thereunder.


Section 3.10.  Resale Of The Securities.  During the period of two years
after the last date of original issuance of the Securities, the Company shall
not, and shall not permit any of its Affiliates to, resell any of the
Securities or the shares of Common Stock, if any, issued upon conversion of the
Securities, that constitute “restricted securities” under Rule 144 under the
Securities Act that have been reacquired by any of them.


Article 4


Successor Company


Section 4.01.  Consolidation, Merger and Sale
of Assets.  The Company shall
not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its properties and assets to, another Person, unless:


(a)                        the
resulting, surviving or transferee Person (the “Successor
Company”), if not the Company, is a Person organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and such entity shall expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form sufficient to effect
such assumption, all the obligations of the Company under the Securities and this
Indenture;


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


(c)                        the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, stating that such consolidation, merger or transfer and
such supplemental indenture, if any, comply with this Indenture.



 33
 









For
purposes of this Section 4.01, the conveyance, transfer or lease of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Company, which properties and assets, if held by the Company instead of
such Subsidiaries, would constitute all or substantially all of the properties
and assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.


The
Successor Company will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but, in the case of
a lease of all or substantially all its properties and assets, the Company will
not be released from the obligation to pay the principal of, premium, if any,
and interest (including Additional Interest, if any) on the Securities.


Article 5


Reporting Obligations


Section 5.01.  Reporting Obligations.  (a) The Company shall deliver to
the Trustee, within 15 days after filing with the SEC, copies of its annual
reports and of information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. For the avoidance of doubt, the
foregoing is not intended to create any obligation to timely file reports with
the SEC.


(b)                       The
Company shall, if at any time it is not required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act, furnish to Holders of Securities or
holders of shares of Common Stock issued upon conversion of the Securities
which continue to be Restricted Securities and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.   


(c)                        Delivery
of reports, information and other documents under this Section 5.01 to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


Section 5.02.  Compliance with TIA.  The Company also shall comply with the other
provisions of Section 314(a) of the Trust Indenture Act.



 34
 









Article 6

Redemption
of Securities


Section 6.01.  Optional Redemption.


(a)                        Prior
to June 20, 2014, the Securities shall not be redeemable.


(b)                       On
and after June 20, 2014, subject to the terms and conditions of this Article 6,
the Company may, at its option, redeem for cash all or a portion of the
Securities, at a price (the “Redemption Price”)
equal to 100% of the principal amount of Securities to be redeemed, plus
accrued and unpaid interest (Additional Interest, if any) to but excluding the
Redemption Date; provided, however, that if the
Redemption Date falls after a Regular Record Date for the payment of interest
and on or prior to the corresponding Interest Payment Date, the Company shall
pay accrued and unpaid interest to but excluding the Redemption Date to the
Holder of record at the close of business on such Regular Record Date on the
Interest Payment Date and the Redemption Price for the Securities will be 100%
of the principal amount of the Securities to be redeemed.


Section 6.02.  Election to Redeem; Notice to
Trustee.  In case of any
redemption at the election of the Company, the Company shall, on or prior to
the date that is 15 days prior to the date on which notice is given to the
Holders (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed and shall deliver to the Trustee such documentation and records
as shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 6.03.  Any such notice may be cancelled
at any time prior to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.


Section 6.03.  Selection by Trustee of
Securities to Be Redeemed.  If
less than all the Securities are to be redeemed at any time pursuant to this Article
6, the particular Securities to be redeemed shall be selected by the Trustee,
from the outstanding Securities not previously called for redemption, by lot or
on a pro rata basis among the
Securities or by such other method as the Trustee shall deem fair and
appropriate, including any method required by DTC or any successor depositary
(and in such manner as is not prohibited by applicable legal requirements) and
which may provide for the selection for redemption of portions of the principal
of the Securities; provided, however,
that no such partial redemption shall reduce the portion of the principal
amount of a Security not redeemed to less than $1,000.


The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.



 35
 









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


If
any Securities selected for partial redemption are thereafter surrendered for
conversion in part before termination of the conversion right with respect to
the portion of the Securities so selected, the converted portion of such
Securities shall be deemed (so far as may be), solely for purposes of
determining the aggregate principal amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection. Nothing in this Section
6.03 shall affect the right of any Holder to convert any Securities pursuant to
Article 12 before the termination of the conversion right with respect thereto.


Section 6.04.  Notice of Redemption.  Notice of redemption shall be
given in the manner provided for in Section 14.02 not less than 23 Scheduled
Trading Days nor more than 45 Scheduled Trading Days prior to the Redemption
Date, to the Trustee, the Paying Agent and each Holder of Securities to be
redeemed.  The Trustee shall give notice
of redemption in the Company’s name and at the Company’s expense; provided, however, that the Company shall
deliver to the Trustee an Officers’ Certificate, at least 15 calendar days
prior to the date on which notice is required to be given to the Holders
(unless shorter notice shall be satisfactory to the Trustee), requesting that
the Trustee give such notice at the Company’s expense and setting forth the
information to be stated in such notice as provided in the following items.


All notices of redemption
shall state:


(a)                        the
Redemption Date;


(b)                       the
Redemption Price;


(c)                        the
then current Base Conversion Rate, the Incremental Share Factor, Daily Share
Cap and whether Physical Settlement or Net Share Settlement shall apply in
respect of any conversions (and if Net Share Settlement shall apply, the Cash
Percentage, if any); 


(d)                       that
the Securities called for redemption may be converted at any time before the
close of business on the Scheduled Trading Day prior to the Redemption Date,
and that Holders who wish to convert Securities must comply with the relevant procedures;



 36
 









(e)                        if
less than all outstanding Securities are to be redeemed, the identification of
the particular Securities (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Securities to be redeemed and the aggregate
principal amount of Securities to be outstanding after such partial redemption;


(f)                          in
case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender
of such Security, the Holder will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed;


(g)                       that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security, or the portion thereof, to be redeemed, and, unless the
Company defaults in making the redemption payment, that interest (including
Additional Interest, if any) on Securities called for redemption (or the
portion thereof) will cease to accrue on and after said date;


(h)                       the
place or places where such Securities are to be surrendered for payment of the Redemption
Price;


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


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


(k)                        the
CUSIP or ISIN number, and that no representation is made as to the accuracy or
correctness of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Securities.


Section 6.05.  Deposit of Redemption
Price.  Prior to 11:00 a.m.,
New York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money sufficient to pay the Redemption Price of all the Securities which are to
be redeemed on that date other than Securities or portions of Securities called
for redemption that are beneficially owned by the Company and have been
delivered by the Company to the Trustee for cancellation.


Section 6.06.  Securities Payable on
Redemption Date.  Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, unless converted, become due and payable at the Redemption
Price, and from and after such date (unless the Company shall default in the
payment of the Redemption Price, accrued and unpaid interest (including



 37
 









Additional Interest, if any) or premium, if any, such
Securities shall cease to bear interest or Additional Interest.  Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price.


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


Section 6.07.  Securities Redeemed in
Part.  Any Security which is
to be redeemed only in part (pursuant to the provisions of this Article 6)
shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 3.02 (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 make available for
delivery to the Holder of such Security at the expense of the Company, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided that each such new Security will
be in a principal amount of $1,000 or multiple thereof.


Article
7

Defaults
and Remedies


Section 7.01.  Events of Default.  Each of the following is an “Event of Default”:


(a)                        default
in any payment of interest (including Additional Interest, if any) or premium,
if any, on any Security when the same becomes due and payable, and such default
continues for a period of 30 days;


(b)                       default
in the payment of the principal of any Security when the same becomes due and
payable at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration of acceleration or otherwise;


(c)                        failure
by the Company to comply with its obligation to convert the Securities in
accordance with this Indenture, upon exercise of a Holder’s conversion right;


(d)                       failure
by the Company to give a Company Notice of the occurrence of a Designated Event
to Holders pursuant to Section 11.01;



 38
 









(e)                        failure by
the Company to comply with its obligations under Article 4;


(f)                          failure
by the Company for a period of 60 days after written notice from the Trustee or
Holders of at least 25% in principal amount of Securities then outstanding has
been received to comply with any obligation, covenant or agreement in this
Indenture or under the Securities (other than those referred to in Section
7.01(a) through (e) and Section 7.01(g) through (i));


(g)                       default by
the Company or any Subsidiary in the payment of the principal or interest on
any mortgage, agreement or other instrument under which there may be
outstanding, or by which there may be secured or evidenced, any indebtedness
for money borrowed in excess of $50,000,000 in the aggregate of the Company
and/or any such Subsidiary, whether such indebtedness now exists or shall
hereafter be created, resulting in such indebtedness becoming or being declared
due and payable, and such acceleration shall not have been rescinded or
annulled within 30 days after written notice of such acceleration has been
received by the Company or such Subsidiary;


(h)                       the Company
or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:


(i)                                     commences
a voluntary case or proceeding;


(ii)                                  consents
to the entry of judgment, decree or order for relief against it in an
involuntary case or proceeding;


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


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


(v)                                 consents
to or acquiesces in the institution of a bankruptcy or an insolvency proceeding
against it;


(vi)                              takes
any corporate action to authorize or effect any of the foregoing; or


(vii)                           takes
any comparable action under any foreign laws relating to insolvency;


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


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



 39
 









(ii)                                  appoints
a Custodian of the Company for all or substantially all of the Company’s or any
Significant Subsidiary’s property; or


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


and, in each case, the order or decree or relief
remains unstayed and in effect for 90 days. 



The
foregoing will 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.


Notwithstanding
the foregoing, a Default under clause (f) or (g) of this Section 7.01 will not
constitute an Event of Default until the Trustee notifies the Company (or the
Holders of 25% or more in principal amount of the outstanding Securities notify
the Company and the Trustee) of the Default in writing and the Company does not
cure such Default within the time specified in clause (f) or (g) of this Section
7.01 after receipt of such notice.


Section 7.02.  Acceleration.  Subject to Section 7.03, if an
Event of Default (other than an Event of Default specified in Section 7.01(h) or
Section 7.01(i) above) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in outstanding principal amount of the
outstanding Securities by notice to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare the principal of and
accrued and unpaid interest, if any, and Additional Interest and premium, if
any, on all the Securities to be due and payable.  Upon such a declaration, such principal,
premium, if any, and accrued and unpaid interest and Additional Interest, if
any, shall be due and payable immediately. 
If an Event of Default specified in Section 7.01(h) or Section 7.01(i) above
occurs and is continuing, the principal of and accrued and unpaid interest, if
any, and Additional Interest and premium, if any, on all the Securities
outstanding shall be immediately due and payable with no further action by the
Trustee or the Holders.


Section 7.03.  Sole Remedy for Failure to
Report.  Notwithstanding any
other provision of this Indenture, if elected by the Company, the sole remedy
for an Event of Default relating to the failure to comply with the reporting
obligations under Article 5 of this Indenture, and for any failure to comply
with the requirements of Section 314(a)(1) of the TIA, will for the first 60 days
after the occurrence of such an Event of Default consist exclusively of the
right to receive Additional Interest on the principal amount of the Securities
at a rate equal to 0.25% per annum.  This
Additional Interest will be in addition to any other



 40














 


Additional Interest that
may accrue as a result of a registration default as described in the
Registration Rights Agreement and will be payable in the same manner and
subject to the same terms as other interest payable under this Indenture.  The Additional Interest will accrue on all
outstanding Securities from and including the date on which an Event of Default
relating to a failure to comply with Article 5 or Section 314(a)(1) of the TIA
first occurs to but not including the 60th day thereafter (or such earlier date
on which the Event of Default relating to the reporting obligations under Article
5 or Section 314(a)(1) of the TIA shall have been cured or waived).  On such 60th day (or earlier, if the Event of
Default relating to such reporting obligations is cured or waived prior to such
60th day), such Additional Interest will cease to accrue and the Securities
will be subject to acceleration and other remedies as provided in this Article
7 if the Event of Default is continuing. 
The Company shall make any such election pursuant to this Section by
notice to all Holders, the Trustee and the Paying Agent of such election on or
before the close of business on the date on which such Event of Default first
occurs.  In the event the Company does
not timely make such election, Securities will be subject to acceleration and
other remedies as provided in this Article 7. 
For the avoidance of doubt, the provisions of this Section 7.02 will not
affect the rights of Holders of Securities in the event of the occurrence of
any other Event of Default and will have no effect on the rights of Holders of
Securities under the Registration Rights Agreement.


Section 7.04.  Other Remedies.  If an Event of Default, other than
an Event of Default specified in Section 7.03, occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal, interest
(including Additional Interest, if any) or premium, 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 it does not possess any of the
Securities or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any Holder
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 7.05.  Waiver of Past Defaults.  The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may (a)
waive, by their consent (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for,
Securities), an existing Default or Event of Default and its consequences
except (i) a Default or Event of Default resulting from the non-payment of the
principal, interest (including Additional Interest, if any) or premium, if any,
on a Security, (ii) a Default or Event of Default resulting from the failure to
deliver, upon conversion, shares of Common Stock or the combination of cash and
shares of Common Stock, if any, upon the conversion of the Security or (iii) a
Default or Event of



 41
 








 


Default in respect of a provision that under Section
10.02 cannot be amended without the consent of each Holder affected and (b)
rescind any such acceleration with respect to the Securities and its
consequences if (i) rescission would not conflict with any judgment or decree
of a court of competent jurisdiction and (ii) all existing Events of Default,
other than the nonpayment of the principal of, interest (including Additional
Interest, if any) or premium, if any, on the Securities that have become due
solely by such declaration of acceleration, have been cured or waived.  When a Default or Event of Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any consequent right.


Section 7.06.  Control by Majority.  The Holders of a majority in
principal amount of the outstanding Securities 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 provided, however
that such Holders have provided the Trustee security or indemnity satisfactory
to it.  However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject
to Sections 8.01 and 8.02, that the Trustee determines is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability;
provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.


Section 7.07.  Limitation on Suits.  Subject to Section 7.08, a Holder
may not pursue any remedy with respect to this Indenture or the Securities
unless:


(a)        such Holder has previously given to the
Trustee written notice stating that an Event of Default is continuing;


(b)        Holders of at least 25% in principal
amount of the outstanding Securities have requested that the Trustee pursue the
remedy;


(c)        such Holders have offered to the Trustee
security or indemnity satisfactory to it against any loss, liability or expense
to be incurred in compliance with such request;


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


(e)        the Holders of a majority in principal
amount of the outstanding Securities have not given the Trustee a direction
that, in the opinion of the Trustee, is inconsistent with such request within
such 60-day period.


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



 42
 








 


Section 7.08.  Rights of Holders to Receive
Payment.  Notwithstanding any
other provision of this Indenture (including, without limitation, Section 7.07),
the right of any Holder to receive payment of principal of, interest (including
Additional Interest, if any) or premium, if any, on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.


Section 7.09.  Collection Suit by
Trustee.  If an Event of
Default specified in clauses (a) or (b) of Section 7.01 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 whole amount then due and owing
(together with interest on any unpaid interest (including Additional Interest,
if any) to the extent lawful) and the amounts provided for in Section 8.07.


Section 7.10.  Trustee May File Proofs of
Claim.  The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company or its respective creditors or properties
and, unless prohibited by law or applicable regulations, may be entitled and
empowered to collect and receive any monies or property payable or deliverable
on any claims and to distribute the same and to participate as a member of any
official committee of creditors appointed in such matter, and may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due to the Trustee under Section
8.07.


Section 7.11.  Priorities.  If the Trustee collects any money
or property pursuant to this Article 7, it shall pay out the money or property
in the following order:


FIRST:  to the
Trustee for amounts due under Section 8.07;


SECOND:  to Holders
for amounts due and unpaid on the Securities for principal, interest (including
Additional Interest, if any) or premium, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal, interest and premium, respectively; and



 43
 








 


THIRD:  to the
Company.


The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 7.11.  At least
15 days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be
paid.


Section 7.12.  Restoration of Rights and
Remedies.  If the Trustee or
any Holder has instituted a proceeding to enforce any right or remedy under this
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, the Trustee and the
Holders will be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company, the Trustee and
the Holders will continue as though no such proceeding had been instituted.


Section 7.13.  Undertaking of Costs.  In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. 
This Section 7.13 does not apply to a suit by the Trustee, a suit by the
Company, a suit by a Holder pursuant to Section 7.08 or a suit by Holders of
more than 25% or more in outstanding principal amount of the Securities.


ARTICLE 8

TRUSTEE


Section 8.01.  Duties of Trustee.  (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs; provided that
if an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this Indenture at the
request or direction of any of the Holders unless such Holders have offered to
the Trustee indemnity or security satisfactory to it against loss, liability or
expense that might be incurred in compliance with such request or direction.



 44
 








 


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


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


(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, opinions
or orders furnished to the Trustee and conforming to the requirements of this
Indenture.  However, in the case of any
such certificates, opinions or orders which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall 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).


(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 paragraph does not limit the
effect of paragraph (b) of this Section 8.01;


(ii)           the Trustee shall not be liable for
any error of judgment made in good faith by a Trust Officer of the Trustee
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 7.06.


(d)        Every provision of this Indenture that
in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section 8.01.


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


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


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



 45
 








 


(h)        Every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 8.01 and to
the provisions of the TIA.


(i)         Unless otherwise specifically provided
in this Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.


(j)         The Trustee shall not be deemed to have
notice or be charged with knowledge of any Default or Event of Default unless a
Trust Officer of the Trustee has actual knowledge thereof or shall have
received from the Company or from Holders of Securities evidencing not less
than twenty-five percent (25%) of the then outstanding Securities, written
notice thereof at its address set forth in Section 14.02 and such notice
references the Securities and this Indenture.


Section 8.02.  Rights of Trustee.  Subject to Section 8.01:


(a)        The Trustee may conclusively rely on any
document (whether in its original or facsimile form) reasonably believed by it
to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or
matter stated in the document.  The
Trustee shall receive and retain financial reports and statements of the
Company as provided herein, but shall have no duty to review or analyze such
reports or statements to determine compliance under covenants or other
obligations of the Company.


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


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


(d)        The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers, unless the Trustee’s conduct
constitutes willful misconduct or negligence.


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



 46
 








 


(f)         The Trustee shall not be responsible or
liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) resulting from
actions taken in good faith and which the Trustee believes to be authorized or
within its rights or powers, unless the Trustee’s conduct constitutes willful
misconduct or negligence.


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


(h)        The Trustee may request that the Company
deliver a certificate setting forth the names of individuals and/or titles of Officers
authorized at such time to take specified actions pursuant to this Indenture.


Section 8.03.  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 or Registrar may do the same with like rights.  However, the Trustee must comply with
Sections 8.10 and 8.11.  In addition, the
Trustee shall be permitted to engage in transactions with the Company; provided, however, that if, during the
continuance of any Default, the Trustee acquires any conflicting interest the Trustee
must (i) eliminate such conflict within 90 days of acquiring such conflicting
interest, (ii) apply to the SEC for permission to continue acting as Trustee or
(iii) resign.


Section 8.04.  Trustee’s Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, shall not be accountable for the Company’s
use of the proceeds from the Securities, shall not be responsible for the use
or application of any money received by any Paying Agent other than the Trustee
and shall not be responsible for any statement of the Company in this Indenture
or in any document issued in connection with the sale of the Securities or in
the Securities other than the Trustee’s certificate of authentication.


Section 8.05.  Notice of Defaults.  If a Default or Event of Default
occurs and is continuing and if a Trust Officer of the Trustee has actual
knowledge thereof, the Trustee shall mail by first class mail to each Holder at
the address set forth in the Securities Register notice of the Default or Event
of Default within 90 days after it occurs. 
Except in the case of a Default or Event of Default in payment of
principal of, interest (including Additional Interest, if any) or premium, if
any, on any Security (including payments pursuant to the optional redemption or
required repurchase provisions of such Security, if any), the Trustee may
withhold the notice if and so long as it determines in good faith that
withholding the notice is in the interests of Holders.



 47
 








 


Section 8.06.  Reports by Trustee to
Holders.  As promptly as
practicable after each June 15 beginning with the June 15 following the date of
this Indenture, and in any event prior to August 1 in each year, the Trustee
shall mail to each Holder a brief report dated as of such June 15 that complies
with TIA § 313(a), if required by such TIA § 313(a).  The Trustee also shall comply with TIA §
313(b).  The Trustee shall also transmit
by mail all reports required by TIA § 313(c).


Section 8.07.  Compensation and
Indemnity.  The Company shall
pay to the Trustee from time to time such compensation for its acceptance of
this Indenture and services hereunder as the Company and the Trustee shall from
time to time agree in writing.  The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  In addition to the
compensation the Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it.  Such expenses shall include the reasonable
compensation and out-of-pocket expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.  The Company shall indemnify the Trustee
against any and all loss, liability, damages, claims or expense (including
reasonable attorneys’ fees and expenses) incurred by it without negligence or
bad faith on its part in connection with the administration of this trust and
the performance of its duties hereunder, including the costs and expenses of enforcing
this Indenture (including this Section 8.07) and of defending itself against
any claims (whether asserted by any Holder, the Company, or otherwise).  The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. 
The Company shall defend the claim and the Trustee shall provide
reasonable cooperation at the Company’s expense in the defense.  The Trustee may have separate counsel and the
Company shall pay the fees and expenses of such counsel, provided that the
Company shall not be required to pay such fees and expenses if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee,
there is no conflict of interest between the Company and the Trustee in
connection with such defense.  The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustee’s own willful
misconduct, negligence or bad faith.


To
secure the Company’s payment obligations in this Section 8.07, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of, interest (including Additional Interest, if any) and premium, if
any, on particular Securities.  Such lien
shall survive the satisfaction and discharge of this Indenture.  The Trustee’s right to receive payment of any
amounts due under this Section 8.07 shall not be subordinate to any other unsecured
liability or debt of the Company.



 48
 








 


The
Company’s payment obligations pursuant to this Section 8.07 shall survive the
discharge of this Indenture and the resignation or removal of the Trustee.  When the Trustee incurs expenses after the
occurrence of a Default specified in Section 7.01(h) or Section 7.01(i) with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.


Section 8.08.  Replacement of Trustee.  The Trustee may resign at any time
by so notifying the Company.  The Holders
of a majority in principal amount of the Securities may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee.  The Company shall remove the Trustee if:


(a)        the Trustee fails to comply with Section
8.10;


(b)        the Trustee is adjudged bankrupt or
insolvent;


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


(d)        the Trustee otherwise becomes incapable
of acting.


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


A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. 
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. 
The successor Trustee shall mail a notice of its succession to Holders.  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 8.07.


If
a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of at least
10% in principal amount of the Securities may petition, at the Company’s
expense, any court of competent jurisdiction for the appointment of a successor
Trustee.


If
the Trustee fails to comply with Section 8.10, unless the Trustee’s duty to
resign is stayed as provided in TIA § 310(b), any Holder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.



 49
 








 


Notwithstanding
the replacement of the Trustee pursuant to this Section 8.08, the Company’s
obligations under Section 8.07 shall continue for the benefit of the retiring
Trustee.


Section 8.09.  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 corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.


In
case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Securities so authenticated; and
in case at that time any of the Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor to the
Trustee; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate Securities
in the name of any predecessor Trustee shall only apply to its successor or
successors by merger, consolidation or conversion.


Section 8.10.  Eligibility;
Disqualification.  The Trustee
shall at all times satisfy the requirements of TIA § 310(a).  The Trustee shall have a combined capital and
surplus of at least $100 million as set forth in its most recent published
annual report of condition.  The Trustee
shall comply with TIA § 310(b); provided,
however, that there shall be excluded from the operation of TIA §
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding, if the requirements for such exclusion set forth in TIA §
310(b)(1) are met.


Section 8.11.  Preferential Collection of
Claims Against Company.  The
Trustee shall comply with TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b).  A Trustee who
has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated.


ARTICLE 9

DISCHARGE OF INDENTURE


Section 9.01.  Discharge of Liability on
Securities.  When (1) the
Company shall deliver to the Registrar for cancellation all Securities
theretofore authenticated (other than any Securities which have been mutilated,
destroyed, lost or wrongfully taken and in lieu of or in substitution for which
other Securities shall have been authenticated and delivered) and not
theretofore canceled, or (2)



 50
 








 


all the Securities not theretofore canceled or delivered to the
Registrar for cancellation shall have (a) been deposited for conversion (after
all related Observation Periods have elapsed) and the Company shall deliver to
the Holders shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, sufficient to pay all amounts owing in respect of
all Securities (other than any Securities which shall have been mutilated,
destroyed, lost or wrongfully taken and in lieu of or in substitution for which
other Securities shall have been authenticated and delivered) not theretofore
canceled or delivered to the Registrar for cancellation or (b) become due and
payable on the Stated Maturity, Purchase Date, Designated Event Purchase Date
or Redemption Date, as applicable, and the Company shall deposit with the
Trustee cash and shares of Common Stock, as applicable, sufficient to pay all
amounts owing in respect of all Securities (other than any Securities which
shall have been mutilated, destroyed, lost or wrongfully taken and in lieu of
or in substitution for which other Securities shall have been authenticated and
delivered) not theretofore canceled or delivered to the Registrar for
cancellation, including the principal amount, premium, if any, and interest (including
Additional Interest, if any) accrued and unpaid to such Stated Maturity,
Purchase Date, Designated Event Purchase Date or Redemption Date, as the case
may be, and if in either case (1) or (2) the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
with respect to the Securities shall cease to be of further effect (except as
to (i) remaining rights of registration of transfer, substitution and exchange
and conversion of Securities; (ii) rights hereunder of Holders to receive from
the Trustee payments of the amounts then due, including interest (including
Additional Interest, if any) or premium, if any, with respect to the Securities
and the other rights, duties and obligations of Holders, as beneficiaries
hereof solely with respect to the amounts, if any, so deposited with the
Trustee; and (iii) the rights, obligations and immunities of the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and Registrar under this
Indenture with respect to the Securities), and the Trustee, on demand of the
Company accompanied by an Officers’ Certificate or an Opinion of Counsel as
required by Section 9.03 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture with respect to the Securities; however, the Company hereby agrees to
reimburse the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar for any costs or expenses thereafter reasonably and properly incurred
by the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar and to compensate the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar for any services thereafter reasonably and
properly rendered by the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar in connection with this Indenture with respect
to the Securities.



 51
 








 


Section 9.02.  Reinstatement.  If the Trustee or the Paying Agent
is unable to apply any money to the Holders entitled thereto by reason of any order
or judgment of any court of governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company’s obligations under this
Indenture with respect to the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance
with this Indenture and the Securities to the Holders entitled thereto; provided, however, that if the Company
makes any payment of principal amount of, interest (including Additional
Interest, if any) or premium, if any, on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or Paying Agent.


Section 9.03.  Officers’ Certificate; Opinion
of Counsel.  Upon any
application or demand by the Company to the Trustee to take any action under Section
9.01, the Company shall furnish to the Trustee an Officers’ Certificate or
Opinion of Counsel stating that all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with.


ARTICLE 10

AMENDMENTS


Section 10.01.  Without Consent of Holders.  The Company and the Trustee may
amend this Indenture and the Securities without notice to or consent of any Holder:


(a)        to cure any ambiguity, omission, defect
or inconsistency in this Indenture;


(b)        to comply with Article 4 in respect of
the assumption by a Successor Company of an obligation of the Company under
this Indenture;


(c)        provide for uncertificated Securities in
addition to or in place of Definitive Securities; provided
that such uncertificated Securities are issued in registered form for purposes
of Section 163(f) of the Internal Revenue Code of 1986, as amended (the “Code”), or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;


(d)        to secure the Securities or add
guarantees with respect thereto;


(e)        to add to the covenants of the Company
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Company;



 52
 








 


(f)         to provide for the conversion of
Securities in accordance with the terms of this Indenture following a
Fundamental Change or Public Acquirer Change of Control;


(g)        to comply with any requirement of the
SEC in connection with the qualification of this Indenture under the TIA;


(h)        to provide for the acceptance of
appointment by a successor Trustee or Paying Agent or facilitate the
administration of the trusts under this Indenture by more than one Trustee or
Paying Agent;


(i)         to add to any Events of Default for the
benefit of Holders of Securities;


(j)         to make any change that does not
adversely affect the rights of any Holder in any material respect; or


(k)        to eliminate the Company’s option to
elect to pay cash to Holders of Securities surrendered for conversion in lieu
of all or a portion of the shares of Common Stock issuable upon conversion of
such Securities as set forth in Section 12.01(d),


After
an amendment under this Section 10.01 becomes effective, the Company shall mail
to Holders a notice briefly describing such amendment.  The failure to give such notice to all Holders,
or any defect therein, shall not impair or affect the validity of an amendment
under this Section 10.01.


Section 10.02.  With Consent of Holders.  The Company and the Trustee may
amend this Indenture and the Securities without notice to any Holder but with
the written or electronic consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities), and subject to the provisions of Section
7.05, past Defaults or compliance with the provisions of this Indenture or the
Securities issued hereunder may be waived with the written consent of the
Holders of at least a majority in principal amount of the Securities then
outstanding (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities).  However, without the consent of each Holder
affected, an amendment or waiver may not:


(a)        reduce the amount of Securities whose
Holders must consent to an amendment;


(b)        reduce the rate of, or extend the stated
time for payment of, interest, including Additional Interest, or premium, on
any Security;



 53
 








 


(c)        reduce the principal of or extend the
Stated Maturity of any Security;


(d)        reduce the Designated Event Repurchase
Price of any Security or amend or modify in any manner adverse to the Holders
of Securities the Company’s obligation to make such payment, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;


(e)        change the place or currency of payment
of principal or interest in respect of any Security;


(f)         otherwise impair the right of any
Holder to receive payment of principal of, interest (including Additional
Interest, if any) or premium, if any, on such Holder’s Securities on or after
the due dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder’s Securities; or


(g)        make any changes to the amendment
provisions which require each Holder’s consent or to the waiver provisions.


It
shall not be necessary for the consent of the Holders under this Section 10.02
to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.  A consent to any amendment or waiver under
this Indenture by any Holder of the Securities given in connection with a
tender or exchange of such Holder’s Securities will not be rendered invalid by
such tender or exchange.


After
an amendment under this Section 10.02 becomes effective, the Company shall mail
to Holders a notice briefly describing such amendment.  The failure to give such notice to all Holders,
or any defect therein, shall not impair or affect the validity of an amendment
under this Section 10.02.


Section 10.03.  Compliance with Trust
Indenture Act.  Every
amendment or supplement to this Indenture or the Securities shall comply with
the TIA as then in effect.


Section 10.04.  Revocation and Effect of
Consents and Waivers.  A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder’s Security, even if notation
of the consent or waiver is not made on the Security.  However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective or otherwise in accordance with any
related solicitation documents.  After an
amendment or waiver becomes effective, it shall bind every Holder.  An amendment or waiver



 54
 








 


shall become effective upon receipt by the Trustee of
the requisite number of written or electronic consents under Section 10.01 or 10.02,
as applicable.


The
Company may, but shall not be obligated to, fix a record date for the purpose
of determining the Holders entitled to give their consent or take any other
action described above or required or permitted to be taken pursuant to this
Indenture.  If a record date is fixed,
then notwithstanding the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. 
No such consent shall become valid or effective more than 120 days after
such record date.


Section 10.05.  Notation on or Exchange of
Securities.  If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. 
The Trustee may place an appropriate notation on the Security regarding
the changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. 
Failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment.


Section 10.06.  Trustee to Sign
Amendments.  The Trustee shall
sign any amendment authorized pursuant to this Article 10 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee.  If it does, the Trustee may but
need not sign it.  In signing any
amendment the Trustee shall be entitled to receive and (subject to Sections 8.01
and 8.02) shall be fully protected in relying upon an Officers’ Certificate and
an Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.


ARTICLE 11

PURCHASE AT THE OPTION OF HOLDERS UPON A DESIGNATED EVENT; PURCHASE

AT THE OPTION OF HOLDERS


Section 11.01.  Purchase at the Option of the
Holder Upon a Designated Event.  If
a Designated Event shall occur at any time, each Holder shall have the right,
at such Holder’s option, to require the Company to purchase any or all of such
Holder’s Securities on a date specified by the Company that is no later than 20
nor more than 35 calendar days after the date of the Company Notice of the
occurrence of such Designated Event (the “Designated Event Purchase
Date”). The Company shall purchase such Securities at a price (the “Designated Event Purchase Price”), which shall be paid in
cash, equal to 100% of the principal amount of the Securities to be purchased
plus accrued and unpaid interest,



 55
 








 


 including any
Additional Interest, to but excluding the Designated Event Purchase Date,
unless the Designated Event Purchase Date is between a Regular Record Date and
the Interest Payment Date to which it relates, in which case the Designated
Event Purchase Price shall equal 100% of the principal amount of Securities to
be purchased and accrued and unpaid interest, including Additional Interest,
shall be paid to the Holder of record on the Regular Record Date.


Notwithstanding
the foregoing, Holders shall not have the right to require the Company to
repurchase Securities, and the Company shall not be required to deliver the
Designated Event Repurchase Right Notice as set forth below, if at least 90% of
the consideration paid for the Common Stock (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters’ appraisal
rights) in a purchase, merger, consolidation, other acquisition transaction or
series of transactions, conveyance, sale, transfer or lease constituting a
Fundamental Change under clauses (1) or (2) of the definition thereof consists
of shares of capital stock or American Depositary Receipts in respect of shares
of capital stock traded on NASDAQ or another U.S. securities exchange or quoted
on an established automated over-the-counter trading market (or will be so
traded or quoted immediately following the completion of the purchase, merger,
consolidation, other acquisition transaction or series of transactions,
conveyance, sale, transfer or lease) and, as a result of the completion of the
purchase, merger, consolidation, other acquisition transaction or series of
transactions, conveyance, sale, transfer or lease, the Securities become
convertible into such shares of such capital stock or such American Depositary
Receipts.


(a)        Exercise of Option.
 For a Security to be so purchased at the
option of the Holder, such Holder must deliver to the Paying Agent such
Security duly endorsed for transfer, together with a written notice of purchase
(a “Designated Event  Purchase
Notice”) in the form entitled “Form of Designated Event Purchase
Notice” attached to the Security duly completed, on or before the Business Day
immediately preceding the Designated Event Purchase Date, subject to extension
to comply with applicable law. The Designated Event Purchase Notice shall
state:


(i)            if certificated, the certificate
numbers of the Securities which the Holder shall deliver to be purchased, or if
not certificated, such notice must comply with appropriate DTC procedures;


(ii)           the portion of the principal amount
of the Securities which the Holder shall deliver to be purchased, which portion
must be $1,000 in principal amount or a multiple thereof; and


(iii)          that such Securities shall be
purchased as of the Designated Event Purchase Date pursuant to the terms and
conditions specified in paragraph 5 of the Securities and in this Indenture.



 56
 








 


(b)        Procedures. The
Company shall purchase from a Holder, pursuant to this Section 11.01,
Securities if the principal amount of such Securities is $1,000 or a multiple
of $1,000 if so requested by such Holder.


Any
purchase by the Company contemplated pursuant to the provisions of this Section
11.01 shall be consummated by the delivery of the Designated Event Purchase
Price to be received by the Holder promptly following the later of the Designated
Event Purchase Date or the time of book-entry transfer or delivery of the
Securities.


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the Designated
Event Purchase Notice contemplated by this Section 11.01 shall have the right
at any time prior to the close of business on the Business Day prior to the Designated
Event Purchase Date to withdraw such Designated Event Purchase Notice (in whole
or in part) by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 11.03(b).


The
Paying Agent shall promptly notify the Company of the receipt by it of any Designated
Event Purchase Notice or written notice of withdrawal thereof and the Company
shall determine the validity of each.


At
or before 11:00 a.m. (New York City time) on the Designated Event Purchase Date,
the Company shall deposit with the Paying Agent (or if the Company or an
Affiliate of the Company is acting as the Paying Agent, shall segregate and
hold in trust) cash sufficient to pay the aggregate Designated Event Purchase
Price of the Securities to be purchased pursuant to this Section 11.01.  Payment by the Paying Agent of the Designated
Event Purchase Price for such Securities shall be made promptly following the
later of the Designated Event Purchase Date or the time of book-entry transfer
or delivery of such Securities.  If the
Paying Agent holds, in accordance with the terms of this Indenture, cash
sufficient to pay the Designated Event Purchase Price of such Securities on the
Designated Event Purchase Date, then, on and after such date, such Securities
shall cease to be outstanding and interest (including Additional Interest, if
any), on such Securities shall cease to accrue, whether or not book-entry
transfer of such Securities is made or such Securities are delivered to the
Paying Agent, and all other rights of the Holder shall terminate (other than
the right to receive the Designated Event Purchase Price and previously accrued
and unpaid interest (including Additional Interest, if any), upon delivery or
transfer of the Securities).


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 Holders or
the Trustee all cash held by the Paying Agent for the payment of the Designated
Event Purchase Price and shall notify the Trustee of any default by the Company
in making any such payment.  If the
Company or an Affiliate of the Company acts as Paying Agent, it shall segregate
the cash held by it as Paying



 57
 








 


Agent and hold it as a separate trust fund.  The Company at any time may require a Paying
Agent to deliver all cash held by it to the Trustee and to account for any
funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall have
no further liability for the cash delivered to the Trustee.


Section 11.02.  Purchase of Securities at the
Option of the Holder.


(a)        A Holder shall have the option to
require the Company to purchase any outstanding Securities on each of June 15,
2014, June 15, 2017 and June 15, 2022 (each, a “Purchase
Date”), at a price (the “Purchase Price”)
which shall be paid in cash, equal to 100% of the principal amount of the
Securities to be repurchased plus any accrued and unpaid interest, including any
Additional Interest, to but excluding the Purchase Date (provided,
however, that if the Purchase Date falls after the close of business on the
Regular Record Date for the payment of interest and on or prior to the related
Interest Payment Date, the Company shall pay all accrued and unpaid interest to
the Interest Payment Date to the holder of record at the close of business on
such Regular Record Date and the Purchase Price shall only be 100% of the
principal amount of the Securities to be repurchased), upon:


(i)            delivery to the Paying Agent by the
Holder of a written notice of purchase (a “Purchase Notice”)
at any time from the opening of business on the date that is 22 Business Days
prior to the relevant Purchase Date until the close of business on the second Business
Day prior to such Purchase Date, stating:


(A)            if certificated, the certificate
numbers of the Securities which the Holder will deliver to be purchased, or, if
not certificated, the Purchase Notice must comply with appropriate DTC
procedures;


(B)            the portion of the principal amount
of the Securities which the Holder will deliver to be purchased, which portion
must be $1,000 in principal amount or a multiple thereof;


(C)            that such Securities shall be
purchased by the Company as of the Purchase Date pursuant to the terms and
conditions specified in paragraph 4 of the Securities and in this Indenture;
and


(ii)           delivery or book-entry transfer of
such Securities to the Paying Agent (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery or transfer being a condition
to receipt by the Holder of the Purchase Price therefor; provided, however, that such Purchase
Price shall be so paid pursuant to this Section 11.02 only if the



 58
 








 


Securities so delivered
or transferred to the Paying Agent shall conform in all respects to the
description thereof in the related Purchase Notice.


(b)        The Company shall purchase from a
Holder, pursuant to this Section 11.02, Securities if the principal amount of
such Securities is $1,000 or a multiple of $1,000 if so requested by such
Holder.


(c)        Any purchase by the Company contemplated
pursuant to the provisions of this Section 11.02 shall be consummated by the
delivery of the Purchase Price to be received by the Holder promptly following
the later of the Purchase Date or the time of book-entry transfer or delivery
of the Securities.


(d)        Notwithstanding anything herein to the
contrary, any Holder delivering to the Paying Agent the Purchase Notice
contemplated by this Section 11.02 shall have the right at any time prior to
the close of business on the Business Day prior to the Purchase Date to
withdraw such Purchase Notice (in whole or in part) by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 11.03(b).


(e)        The Paying Agent shall promptly notify
the Company of the receipt by it of any Purchase Notice or written notice of
withdrawal thereof and the Company shall determine the validity of each.


(f)         At or before 11:00 a.m. (New York City
time) on the Purchase Date, the Company shall deposit with the Paying Agent (or
if the Company or an Affiliate of the Company is acting as the Paying Agent,
shall segregate and hold in trust) cash sufficient to pay the aggregate
Purchase Price of the Securities to be purchased pursuant to this Section 11.02.  Payment by the Paying Agent of the Purchase
Price for such Securities shall be made promptly following the later of the
Purchase Date or the time of book-entry transfer or delivery of such
Securities.  If the Paying Agent holds,
in accordance with the terms of this Indenture, cash sufficient to pay the
Purchase Price of such Securities on the Purchase Date, then, on and after such
date, such Securities shall cease to be outstanding and interest (including
Additional Interest, if any) on such Securities shall cease to accrue, whether
or not book-entry transfer of such Securities is made or such Securities are
delivered to the Paying Agent, and all other rights of the Holder shall
terminate (other than the right to receive the Purchase Price and previously
accrued interest (including Additional Interest, if any) upon delivery or
transfer of the Securities).


(g)        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 Holders or the Trustee all cash held by the
Paying Agent for the payment of the Purchase Price and shall notify the Trustee
of any default by the Company in making any such payment. If the Company or an
Affiliate of the



 59
 








 


Company acts as Paying Agent, it shall segregate the
cash 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 deliver all cash held by it
to the Trustee and to account for any funds disbursed by the Paying Agent. Upon
doing so, the Paying Agent shall have no further liability for the cash
delivered to the Trustee.


Section 11.03.  Further Conditions and
Procedures for Purchase at the Option of the Holder Upon a Fundamental Change and
Purchase of Securities at the Option of the Holder.


(a)        Notice
of Purchase Date or Fundamental Change. The Company shall send
notices (each, a “Company Notice”)
to the Holders, the Trustee and the Paying Agent, not less than 22 Business
Days prior to each Purchase Date, or on or before the 10th calendar day after the occurrence of the
Fundamental Change, as the case may be (each such date of delivery, a “Company Notice Date”), of the Holders’ purchase right. Each
Company Notice shall include a form of Purchase Notice or Designated Event
Purchase Notice, as the case may be, to be completed by a Holder and shall
state:


(i)            if applicable, the events causing a
Designated Event and whether such Designated Event constitutes a Fundamental
Change;


(ii)           whether such Designated Event will
also constitute a Public Acquirer Change of Control and the conversion rights
available to the holders in connection with such Public Acquirer Change of
Control, including the period of conversion, if any, and any adjustments to the
Applicable Conversion Rate (or Settlement Amount) and related Conversion
Obligation;


(iii)          the applicable Purchase Price or Designated
Event Purchase Price, as the case may be;


(iv)          if conversion is permitted under Section
12.01(a)(iv), the Base Conversion Rate, the Incremental Share Factor and the
Daily Share Cap at the time of such notice and any expected adjustments to the Base
Conversion Rate and the Incremental Share Factor;


(v)           the applicable Purchase Date or Designated
Event Purchase Date, as the case may be, and the last date on which a Holder
may exercise its repurchase rights under Section 11.01 or Section 11.02, as
applicable;


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


 



 60














(vii)         that Securities must be
surrendered to the Paying Agent to collect payment of the Purchase Price or the
Designated Event Purchase Price, as the case may be;


(viii)        that Securities as to
which a Purchase Notice or a Designated Event Purchase Notice has been
delivered may be surrendered for conversion only if the applicable Purchase
Notice or Designated Event Purchase Notice, as the case may be, has been
withdrawn in accordance with the terms of this Indenture;


(ix)           that the Purchase Price
or the Designated Event Purchase Price for any Securities as to which a
Purchase Notice or a Designated Event Purchase Notice, as applicable, has been
given and not withdrawn shall be paid by the Paying Agent promptly following
the later of the Purchase Date or the Designated Event Purchase Date, as
applicable, or the time of book-entry transfer or delivery of such Securities;


(x)            the procedures the
Holder must follow under Sections 11.01 or 11.02, as applicable, and Section
11.03;


(xi)           that, unless the
Company defaults in making payment of such Purchase Price or Designated Event
Purchase Price on Securities covered by any Purchase Notice or Designated Event
Purchase Notice, as applicable, interest (including Additional Interest, if
any) will cease to accrue on and after the Purchase Date or Designated Event
Purchase Date, as applicable;


(xii)          the CUSIP or ISIN number
of the Securities; and


(xiii)         the procedures for
withdrawing a Purchase Notice or a Designated Event Purchase Notice, as the
case may be.


Simultaneously
with providing such Company Notice, the Company will publish a notice
containing the information in such Company Notice in its then existing website
or through such other public medium as it may use at the time.


At
the Company’s request, made at least five Business Days prior to the date upon
which such notice is to be mailed, and at the Company’s expense, the Paying
Agent shall give the Company Notice in the Company’s name; provided, however, that, in all cases, the
text of the Company Notice shall be prepared by the Company.


(b)        Upon receipt by the
Company of the Purchase Notice or Designated Event Purchase Notice specified in
Section 11.02(a) or Section 11.01(a), as applicable, the Holder of the
Securities in respect of which such Purchase Notice



 61
 








or Designated
Event Purchase Notice, as the case may be, was given shall (unless such
Purchase Notice or Designated Event Purchase Notice is withdrawn as specified
in the following two paragraphs) thereafter be entitled to receive solely the
Purchase Price or Designated Event Purchase Price with respect to such
Securities. Such Purchase Price or Designated Event Purchase Price shall be
paid by the Paying Agent to such Holder promptly following the later of (x) the
Purchase Date or the Designated Event Purchase Date, as the case may be, with
respect to such Securities (provided
the conditions in this Article 11 have been satisfied) and (y) the time of
delivery or book-entry transfer of such Securities to the Paying Agent by the
Holder thereof in the manner required by Section 11.02 or Section 11.01, as
applicable. Securities in respect of which a Purchase Notice or Designated
Event Purchase Notice, as the case may be, has been given by the Holder thereof
may not be converted on or after the date of the delivery of such Purchase
Notice or Designated Event Purchase Notice, as the case may be, unless such
Purchase Notice or Designated Event Purchase Notice, as the case may be, has
first been validly withdrawn as specified in the following two paragraphs.


(c)        A Purchase Notice or
Designated Event Purchase Notice, as the case may be, may be withdrawn by means
of a written notice of withdrawal delivered to the office of the Paying Agent
at any time prior to 5:00 p.m., New York City time, on the Business Day prior
to the Purchase Date or the Designated Event Purchase Date, as the case may be,
to which it relates, specifying:


(i)            the principal amount
of the Securities with respect to which such notice of withdrawal is being
submitted;


(ii)           if certificated, the
certificate number of the Securities in respect of which such notice of
withdrawal is being submitted, or, if not certificated, the written notice of
withdrawal must comply with appropriate DTC procedures; and


(iii)          the principal amount, if
any, of such Securities which remains subject to the original Purchase Notice
or Designated Event Purchase Notice, as the case may be, and which has been or
shall be delivered for purchase by the Company.


(d)        There shall be no purchase
of any Securities pursuant to Section 11.02 or Section 11.01 if an Event of
Default has occurred and is continuing (other than a default that is cured by
the payment of the Purchase Price or Designated Event Purchase Price, as the
case may be). The Paying Agent shall promptly return to the respective Holders
thereof any Securities (x) with respect to which a Purchase Notice or
Designated Event Purchase Notice, as the case may be, has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default that is cured by the payment of the
Purchase Price or Designated Event Purchase Price, as the case



 62
 








may be) in which
case, upon such return, the Purchase Notice or Designated Event Purchase Notice
with respect thereto shall be deemed to have been withdrawn.


(e)        Securities Purchased in Part. Any Securities that are 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 or the
Authenticating Agent shall authenticate and deliver to the Holder of such
Securities, 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 Securities so surrendered which is not purchased.


(f)         Covenant to Comply with Securities Laws Upon Purchase
of Securities.  In connection
with any offer to purchase Securities under Section 11.02 or Section 11.01, the
Company shall, to the extent applicable, (a) comply with Rules 13e-4 and 14e-1
(and any successor provisions thereto) under the Exchange Act, if applicable;
(b) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, if applicable; and (c) otherwise comply with all
applicable federal and state securities laws so as to permit the rights and
obligations under Section 11.02 or Section 11.01 to be exercised in the time
and in the manner specified in Section 11.02 or Section 11.01.  To the extent any other provision of this
Indenture conflicts with any of the foregoing, the foregoing shall govern.


(g)        Repayment to the Company. 
Subject to applicable abandoned property laws, the Trustee and the
Paying Agent shall return to the Company any cash or property that remains unclaimed,
as provided in paragraph 8 of the Securities, together with interest that the
Trustee or Paying Agent, as the case may be, has expressly agreed in writing to
pay, if any, that is held by them for the payment of a Purchase Price or
Designated Event Purchase Price, as the case may be; provided, however, that to the extent that the aggregate
amount of cash or property deposited by the Company pursuant to Section
11.01(b) or Section 11.02(f), as applicable, exceeds the aggregate Purchase
Price or Designated Event Purchase Price, as the case may be, of the Securities
or portions thereof which the Company is obligated to purchase as of the
Purchase Date or the Designated Event Purchase Date, as the case may be, then
promptly on and after the Business Day following the Purchase Date or
Designated Event Purchase Date, as the case may be, the Trustee and the Paying
Agent shall return any such excess to the Company..



 63
 








(h)        Officers’ Certificate. 
At least five Business Days before the Company Notice Date, the Company
shall deliver an Officers’ Certificate to the Trustee specifying whether the
Company desires the Trustee to give the Company Notice required by Section
11.03(a) herein.


ARTICLE 12

CONVERSION


Section 12.01.  Conversion of Securities.  (a) Right to Convert.  Subject to the procedures for conversion set
forth in this Article 12, a Holder may convert its Securities prior to the
close of business on the Scheduled Trading Day immediately preceding Stated
Maturity when one or more of the conditions specified below are met and during
the related specified period.  On and
after April 15, 2027, as set forth under clause (b) below, a Holder may convert
its Securities until the close of business on the Scheduled Trading Day immediately
preceding Stated Maturity regardless of the conditions specified below.
Whenever the Securities shall become convertible upon one or more of the
conditions stated in clauses (i), (ii), (iv)(A), (iv)(B) or Error! Reference source not found. below,
the Company or, at the Company’s request, the Trustee in the name and at the
expense of the Company, shall notify the Holders of the event triggering such
convertibility in the manner provided in Section 14.02 and, in the case of one
or more conditions stated in clauses (iv)(B) or Error! Reference source not found., the Company shall also
publish a notice in accordance with Section 11.03(a). For the avoidance of
doubt, the Trustee has no duty to determine if Securities have become
convertible, and its only obligation is to notify Holders of such at the
Company’s request. Whenever the Securities shall become convertible upon the
condition stated in clause (iii), notice of the event triggering such
convertibility shall be given in accordance with the provisions of Section
6.04.  Any notice so given shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.


(i)            Conversion
Upon Satisfaction of Sale Price Condition. Prior to April 15, 2027,
a Holder may surrender all or a portion of its Securities for conversion during
any fiscal quarter commencing after September 30, 2007 if the Last Reported
Sale Price for 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
Base Conversion Price in effect on such last Trading Day.


(ii)           Conversion
Upon Satisfaction of Trading Price Condition.  Prior to April 15, 2027, a Holder may
surrender its Securities for conversion during the five Business Day period
after any 5 consecutive Trading Day period (the “Measurement
Period“) in which the
Trading



 64
 








Price per $1,000
principal amount of Securities, as determined following a request by a Holder
in accordance with the procedures set forth in this Section 12.01(a)(ii), for
each Trading Day of the Measurement Period was less than 98% of the product of
the Last Reported Sale Price of the Common Stock and the Applicable Conversion
Rate for such Trading Day.  In connection
with any conversion in accordance with this Section 12.01(a)(ii), the Bid
Solicitation Agent shall have no obligation to determine the Trading Price of
the Securities unless requested by the Company; and the Company shall have no
obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of
Securities would be less than 98% of the product of the Last Reported Sale
Price of the Common Stock and the Applicable Conversion Rate.  Promptly after receiving such evidence, the
Company shall instruct the Bid Solicitation Agent to determine the Trading
Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount of
Securities for any Trading Day is greater than or equal to 98% of the product
of the Last Reported Sale Price of the Common Stock and the Applicable
Conversion Rate.


Solely for purposes of determining the satisfaction of
the Trading Price condition described above, the Applicable Conversion Rate on
any day will be (i) if the Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding such day is less than or equal to the Base
Conversion Price on such day, the Base Conversion Rate and (ii) if such Last
Reported Sale Price of the Common Stock is greater than the Base Conversion
Price, the Base Conversion Rate plus a number of shares equal to the product of
(a) the Incremental Share Factor and (b) the difference between such Last Reported
Sale Price and the Base Conversion Price, such difference divided by such Last
Reported Sale Price.


(iii)          Conversion
Upon Notice of Redemption.  If
the Company calls any or all of the Securities for Redemption, a Holder may
surrender for the Securities called for redemption at any time prior to the
close of business on the Scheduled Trading Day prior to the related Redemption
Date, even if the Securities are not otherwise convertible at such time, after
which time a Holder’s right to convert will expire unless the Company defaults
in the payment of the Redemption Price.


(iv)          Conversion Upon Specified Corporate Transactions.


(A)            If the Company elects
to (1) distribute to all or substantially all holders of Common Stock rights or
warrants entitling them to purchase, for a period expiring within 45 days



 65
 








after the record
date of the distribution, shares of Common Stock at a price per share less than
the Last Reported Sale Price of Common Stock on the Trading Day immediately
preceding the declaration date for such distribution, or (2) distribute to all
holders of Common Stock assets (including cash), debt securities or rights to
purchase securities of the Company, which distribution has a per share Fair
Market Value, as determined by the Company’s Board of Directors, exceeding 15%
of the Last Reported Sale Price on the day immediately preceding the
declaration date for such distribution, then, in each case, the Company must
notify the Holders of such distribution and of their rights under this clause
(A), in the manner provided in Section 14.02, at least 23 Scheduled Trading
Days prior to the Ex-Dividend Date for such distribution. Once the Company has
given such notice, Holders may surrender Securities for conversion at any time
until the earlier of 5:00 p.m., New York City time, on the Business Day
immediately prior to such Ex-Dividend Date or the Company’s announcement that
such distribution will not take place even if the Securities are not otherwise
convertible at such time. 
Notwithstanding the foregoing, a Holder may not exercise this right if
it is permitted to participate in the distribution without conversion at the
same time and on the same terms as holders of Common Stock as if such Holder of
Securities held a number of shares of Common Stock equal to the Applicable
Conversion Rate in effect on the Ex-Dividend Date for such distribution
multiplied by the principal amount (expressed in thousands) of Securities held
by such Holder. Solely for purposes of the foregoing sentence, the Observation
Period used to calculate the Applicable Conversion Rate will be the 20 VWAP
Trading Days ending on the VWAP Trading Day immediately preceding the
Ex-Dividend Date. The Company shall notify Holders of its decision to permit
them to participate in such distribution at least 23 Scheduled Trading Days
preceding the Ex-Dividend Date.


(B)            If the Company is
party to a transaction or event that constitutes a Designated Event, Holders
may surrender Securities for conversion at any time from and after the 30th Scheduled Trading Day prior to the anticipated
effective date of such Designated Event until the related Designated Event
Purchase Date corresponding to such Designated Event.


(C)            If the Company is a
party to a combination, merger, binding share exchange or sale or conveyance of
all or substantially all of its property and assets, in each case pursuant to
which the Common Stock would be converted in cash, securities



 66
 








and/or other
property that does not also constitute a Designated Event, Holders may
surrender Securities for conversion at any time beginning 30 Scheduled Trading
Days prior to the anticipated effective date of such transaction until the 15th calendar day following the effective date of
such transaction.  The Company shall
notify Holders at least 30 Scheduled Trading Days prior to the anticipated
effective date of such conversion right.


A Holder may convert a portion of the principal amount
of Securities if the portion is $1,000 or a multiple of $1,000. The number of
shares of Common Stock issuable or the combination of cash payable and the
number of shares of Common Stock issuable, if any, upon conversion of a
Security shall be determined as set forth in Section 12.01(d).


(b)        Conversion
During Specified Period Immediately Prior to Stated Maturity.  Notwithstanding anything herein to
the contrary, a Holder may surrender its Securities for conversion beginning on
April 15, 2027, until the close of business on the Scheduled Trading Day
immediately preceding the Stated Maturity.


(c)        Conversion
Procedures.  The following
procedures shall apply to the conversion of Securities:


(i)            In respect of a
Definitive Security, a Holder must (A) complete and manually sign the
conversion notice on the back of the Security, or a facsimile of such
conversion notice; (B) deliver such conversion notice, which is irrevocable,
and the Security to the Conversion Agent; (C) to the extent any shares of
Common Stock issuable upon conversion are to be issued in a name other than the
Holder’s, furnish appropriate endorsements and transfer documents as may be
required by the Conversion Agent; (D) if required pursuant to Section 12.01(f)
below, pay all transfer or similar taxes; and (E) if required pursuant to
Section 2.01(d) above, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled.


(ii)           In respect of a
beneficial interest in a Global Security, a Beneficial Owner must comply with
DTC’s procedures for converting a beneficial interest in a Global Security and,
if required pursuant to Section 2.01(d) above, pay funds equal to interest
payable on the next Interest Payment Date to which such Beneficial Owner is not
entitled, and if required, taxes or duties, if any.


The
date a Holder satisfies the foregoing requirements is the “Conversion
Date“ hereunder.



 67
 








If
a Holder converts more than one Security at the same time, the number of shares
of Common Stock issuable or the combination of the cash payable and number of
shares of Common Stock issuable upon the conversion, if any, shall be based on
the total principal amount of the Securities converted.


Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee or the Authenticating Agent shall authenticate and deliver to
the Holder, a new Security in an authorized denomination equal in principal
amount to the unconverted portion of the Security surrendered.


Delivery
of shares of Common Stock, if any, will be accomplished by delivery to the
Conversion Agent of certificates for the relevant number of shares of Common
Stock, other than in the case of Holders of Global Securities in book-entry
form with DTC, in which case shares of Common Stock shall be delivered in
accordance with DTC customary practices.


(d)        Settlement
Upon Conversion.


(i)            Unless the Company has
elected to settle all conversions of Securities in a manner specified in its
notice set forth in clause (iv) below, the Company shall notify Holders who
have tendered their Securities for conversion not later than the Scheduled
Trading Day immediately preceding the first day of the related Observation
Period whether the Company will satisfy its obligation to convert the
Securities (the “Conversion Obligation“) through
delivery of (i) shares of its Common Stock based upon the Applicable Conversion
Rate as described under clause (ii) below (a “Physical
Settlement“) or (ii) a combination of cash and shares (if any) of
its Common Stock based on the Daily Conversion Value as described under clause
(iii) below (a “Net Share Settlement“). In either
case, the Company shall deliver cash in lieu of any fractional share of Common
Stock otherwise issuable. If the Company shall not have not elected to settle
all conversions of Securities in the manner specified in its notice as
described under clause (iv) below, and does not specify a settlement method for
Securities tendered for conversion, then Physical Settlement shall apply for
such Securities.


(ii)           If Physical Settlement
applies to any Securities tendered for conversion, upon conversion of such
Securities the Company shall settle its Conversion Obligation by delivery to
Holders, on the third Trading Day following the last day of the Observation
Period, for each $1,000 principal amount of Securities converted, a number of
shares of Common Stock equal to the Applicable Conversion Rate.


(iii)          If Net Share Settlement
applies to any Securities tendered for conversion, the Company shall settle its
Conversion Obligation with



 68
 








respect to each
$1,000 in principal amount of Securities being converted by delivering, on the
third Trading Day immediately following the last day of the related Observation
Period, a “Settlement Amount“ consisting of
cash and shares of Common Stock (if any) equal to the sum of the Daily
Settlement Amounts for each of the 20 VWAP trading days during the related
Observation Period.


(A)            To the extent the
Daily Conversion Value on any day during such Observation Period exceeds $50,
the Company may elect to pay cash in lieu of delivering all or a portion of the
Maximum Deliverable Shares otherwise constituting the Daily Settlement Amount
pursuant to clause (ii) of the definition thereof.  If the Company makes such election, it shall
notify the Holders through the Trustee of the percentage of each share of
Common Stock otherwise issuable upon conversion that will be paid in cash in
lieu of Common Stock (the “Cash Percentage“)
no later than the Scheduled Trading Day immediately preceding the first day of
the applicable Observation Period. If the Company shall choose to settle all or
any portion of the Maximum Deliverable Shares in cash in connection with
conversions of Securities within 22 Scheduled Trading Days prior to Stated
Maturity or the Redemption Date, it will send, on or prior to the first day of
the applicable Observation Period, a single notice for all such conversions to
the Trustee with respect to the Cash Percentage that will be paid in lieu of
its Common Stock.


(B)            If the Company shall
elect to specify a Cash Percentage, the amount of cash that it will deliver in
lieu of all or the applicable portion of the Maximum Deliverable Shares for
each day in the applicable Observation Period will equal: (i) the Cash
Percentage, multiplied by (ii) the Maximum Deliverable Shares (assuming it had
not specified a Cash Percentage), multiplied by (iii) the Daily VWAP such
Trading Day. The number of shares deliverable in respect of each day in the
applicable Observation Period will be a percentage of the Maximum Deliverable
Shares (assuming it had not specified a Cash Percentage) equal to 100% minus
the Cash Percentage. If it does not specify a Cash Percentage, the Company
shall settle 100% of the Maximum Deliverable Shares for each day in such
Observation Period with shares of its Common Stock; provided,
however, that it will pay cash in lieu of fractional shares based on the Last
Reported Sale Price of the Common Stock on the last day of such Observation
Period.



 69
 








(iv)          At any time upon notice
to the Trustee, the Company may irrevocably waive, in its sole discretion and
without the consent of the Holders, by notice to the Trustee and the Holders,
its right to satisfy any Conversion Obligation by Physical Settlement or Net
Share Settlement as described above such that following the delivery of such
notice, the Company may no longer satisfy its Conversion Obligation in respect of
Securities tendered for conversion following such notice by the method waived
in such notice.


(e)        Cash
Payments in Lieu of Fractional Shares. The Company shall not issue a
fractional share of Common Stock upon conversion of Securities.  Instead the Company shall deliver cash for
the current market value of the fractional share.  The current market value of a fractional
share shall be determined to the nearest 1/10,000th of a share by multiplying
the Last Reported Sale Price of the Common Stock on the last day of the
relevant Observation Period by the fractional amount and rounding the product
to the nearest whole cent.


(f)         Taxes on
Conversion.  If a Holder
converts Securities, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of shares of Common Stock upon the
conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder’s name.
The Conversion Agent may refuse to deliver the certificates representing the
Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which shall be due
because the shares are to be issued in a name other than the Holder’s name, but
the Conversion Agent shall have no duty to determine if any such tax is
due.  Nothing herein shall preclude any
withholding of tax required by law.


(g)        Certain
Covenants of the Company.


(i)            The Company shall,
prior to issuance of any Securities hereunder, and from time to time as may be
necessary, reserve out of its authorized but unissued Common Stock or shares of
Common Stock held in treasury, a sufficient number of shares of Common Stock,
free of preemptive rights, to permit the conversion of the Securities.


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


(iii)          The Company shall
endeavor promptly to comply with all federal and state securities laws
regulating the issuance and delivery of



 70
 








shares of Common
Stock upon the conversion of Securities, if any, and shall cause to have listed
or quoted all such shares of Common Stock on each U.S. national securities
exchange or over-the-counter or other domestic market on which the Common Stock
is then listed or quoted.


(iv)          Before taking any action
which would cause an adjustment increasing the Base Conversion Rate to an
amount that would cause the Base Conversion Price to be reduced below the then
par value per share of the Common Stock, if any, of the shares of Common Stock
issuable upon conversion of the Securities, the Company will take all corporate
action which 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 Base Conversion Rate.


Section 12.02.  Adjustments to Base Conversion Rate, the
Incremental Share Factor and Daily Share Cap. 
The Base Conversion Rate shall be adjusted by the Company as
described in this Section, except that the Company shall not make any
adjustments to the Base Conversion Rate for any stock distribution or dividend
pursuant to clause (a) below, or any issuance or distribution pursuant to
clauses (b), (c) or (d) below, if Holders are permitted to participate in
distribution, dividend or issuance without conversion at the same time and on
the same terms as holders of Common Stock as if such Holder of Securities held
a number of shares of Common Stock equal to the Applicable Conversion Rate in
effect on the Ex-Dividend Date for such distribution multiplied by the
principal amount (expressed in thousands) of Securities held by such Holder.
Solely for purposes of the foregoing sentence, the Observation Period used to
calculate the Applicable Conversion Rate will be the 20 VWAP Trading Days
ending on the VWAP Trading Day immediately preceding the Ex-Dividend Date. The
Company shall notify Holders of its decision to permit Holders to participate
in such distribution at least 23 Scheduled Trading Days preceding the
Ex-Dividend Date.


At
any time the Base Conversion Rate is adjusted as described below, the
Incremental Share Factor and Daily Share Cap will be adjusted based on the
based on the following formula:





	
  where,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to such adjustment;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the Base Conversion Rate in effect immediately after
  such adjustment;

  



 



 71
 








 


	
  ISF0

  	
  =

  	
  the Incremental Share Factor, or Daily Share Cap, as
  applicable, in effect immediately prior to such adjustment; and

  
	
   

  	
   

  	
   

  
	
  ISF ́

  	
  =

  	
  the Incremental Share Factor, or Daily Share Cap, as
  applicable, in effect immediately after to such adjustment.

  



 


(a)        If the Company issues
shares of Common Stock as a dividend or distribution on shares of the Common
Stock, or effects a share split or share combination, the Base Conversion Rate
will be adjusted based on the following formula:





	
  where,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to the Ex-Dividend Date for such dividend or distribution, or the effective
  date of such share split or share combination, as the case may be;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the Base Conversion Rate in effect immediately after
  the Ex-Dividend Date for such dividend or distribution, or the effective date
  of such share split or share combination, as the case may be;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately prior to the Ex-Dividend Date for such dividend or distribution,
  or the effective date of such share split or share combination, as the case
  may be; and

  
	
   

  	
   

  	
   

  
	
  OS ́

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately after such dividend or distribution, or the effective date of
  such share split or share combination, as the case may be.

  



 


Such adjustment shall become effective immediately after
(i) the Ex-Dividend Date for such dividend or distribution or (ii) the date on
which such split or combination becomes effective, as applicable.  If any dividend or distribution of the type
described in this Section 12.02(a) is declared but not so paid or made, the new
Base Conversion Rate shall again be adjusted to the Base Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.



 72
 








(b)        If the Company issues to
all or substantially all holders of its Common Stock any rights or warrants
entitling them to purchase, for a period of not more than 45 days after the
Ex-Dividend Date for the distribution, shares of Common Stock at a price per
share less than the Last Reported Sale Price of the Common Stock on the Trading
Day immediately preceding the date of announcement for such distribution, the
Base Conversion Rate will be adjusted based on the following formula:





	
  where,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the new Base Conversion Rate in effect immediately
  after the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately prior to the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  X

  	
  =

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

  
	
   

  	
   

  	
   

  
	
  Y

  	
  =

  	
  the number of shares of Common Stock equal to the
  aggregate price payable to exercise such rights or warrants divided by the
  average of the Last Reported Sale Prices of the Common Stock over the 10
  consecutive Trading Day period ending on the Trading Day immediately
  preceding the Ex-Dividend Date for such distribution.

  



 


For purposes of this Section 12.02(b), in determining
whether any rights or warrants entitle the Holders to subscribe for or purchase
shares of Common Stock at less than the average of the applicable Last Reported
Sale Prices, and in determining the aggregate exercise or conversion price
payable for 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, with the value of such
consideration, if other than cash, to be determined by the Board of Directors.
If any right or warrant described in this Section 12.02(b) is not exercised or
converted prior to the expiration of the exercisability or convertibility
thereof, the new Base Conversion Rate shall be readjusted to the Base
Conversion Rate that would then be in effect if such right or warrant had not
been so issued.  Any adjustment made
pursuant to this Section



 73
 








12.02(b) shall become effective immediately after the
Ex-Dividend Date for the applicable distribution.


(c)        If the Company distributes
shares of Capital Stock, evidences of its indebtedness or other assets or
property of the Company to all holders of the Common Stock, excluding:


(i)            dividends or
distributions referred to in clause (a) or (b) above;


(ii)           dividends or
distributions paid exclusively in cash; and


(iii)          Spin-Offs to which the
provisions set forth below in this clause (c) shall apply;


then the Base Conversion Rate will be adjusted based
on the following formula:





	
  where,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the new Base Conversion Rate in effect immediately
  after the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Common Stock over the 10 consecutive Trading Day period ending on the Trading
  Day immediately preceding the Ex-Dividend Date for such distribution; and

  
	
   

  	
   

  	
   

  
	
  FMV

  	
  =

  	
  the average of the Fair Market Values (as determined
  by the Board of Directors) of the shares of Capital Stock, evidences of
  indebtedness, assets or property distributed with respect to each outstanding
  share of Common Stock on the Ex-Dividend Date for such distribution.

  



 


Such adjustment shall become effective immediately
after the Ex-Dividend Date for the applicable distribution.


With respect to an adjustment pursuant to this clause
(c) where there has been a payment of a dividend or other distribution on the
Common Stock of shares of Capital Stock of any class or series, or similar
equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off“), the Base Conversion Rate in effect immediately
before 5:00 p.m., New York City time, on the tenth Trading Day immediately following,
and including, the effective date of the Spin-Off will be increased based on
the following formula:



 74
 













	
  where,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to the tenth Trading Day immediately following, and including, the effective
  date of the Spin-Off;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the new Base Conversion Rate in effect immediately
  after the tenth Trading Day immediately following, and including, the
  effective date of the Spin-Off;

  
	
   

  	
   

  	
   

  
	
  FMV0

  	
  =

  	
  the average of the Last Reported Sale Prices of the
  Capital Stock or similar equity interest distributed to holders of Common
  Stock applicable to one share of Common Stock over the first 10 consecutive
  Trading Day period immediately following, and including, the effective date
  of the Spin-Off; and

  
	
   

  	
   

  	
   

  
	
  MP0

  	
  =

  	
  the average of the Last Reported Sale Prices of
  Common Stock over the first 10 consecutive Trading Day period immediately
  following, and including, the effective date of the Spin-Off.

  






 


Such adjustment shall occur immediately after the
tenth Trading Day immediately following, and including, the effective date of
the Spin-Off provided that, for purposes of determining the Base Conversion
Rate, in respect of any conversion during the ten Trading Days following the
effective date of any Spin-Off, references within the portion of this clause
(c) related to “Spin-Offs” to 10 Trading Days shall be deemed replaced with
such lesser number of Trading Days as have elapsed between the effective date
of such Spin-Off and the relevant Conversion Date.


If any such dividend or distribution described in this
clause (c) is declared but not paid or made, the new Base Conversion Rate shall
be readjusted to be the Base Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


(d)        If the Company pays any
cash dividend or distribution to all or substantially all holders of its Common
Stock, the Base Conversion Rate will be adjusted based on the following
formula:






 75















where,


	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect immediately prior
  to the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the new Base Conversion Rate in effect immediately
  after the Ex-Dividend Date for such distribution;

  
	
   

  	
   

  	
   

  
	
  SP0

  	
  =

  	
  the Last Reported Sale Price of the Common Stock on
  the Trading Day immediately preceding the Ex-Dividend Date for such
  distribution; and

  
	
   

  	
   

  	
   

  
	
  C

  	
  =

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

  



An adjustment to the Base
Conversion Rate made pursuant to this clause (d) shall become effective
immediately after the Ex-Dividend Date for the applicable dividend or
distribution. If any dividend or distribution described in this clause (d)  is declared but not so paid or made, the new Base
Conversion Rate shall be readjusted to the Base Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.


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





where,


	
  CR0

  	
  =

  	
  the Base Conversion Rate in effect at the close of
  business on the last Trading Day of the 10 consecutive Trading Day period
  commencing on the Trading Day next succeeding the date such tender or
  exchange offer expires;

  
	
   

  	
   

  	
   

  
	
  CR ́

  	
  =

  	
  the new Base Conversion Rate in effect immediately
  following the last Trading Day of the 10 consecutive Trading Day period
  commencing on the Trading Day next succeeding the date such tender or
  exchange offer expires; 

  
	
   

  	
   

  	
   

  
	
  AC

  	
  =

  	
  the aggregate value of all cash and any other
  consideration (as determined by the Board of Directors) paid or payable for
  shares purchased in such tender or exchange offer; 

  



 



 76
 









 


	
  OS0

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately prior to the expiration of such tender or exchange offer;

  
	
   

  	
   

  	
   

  
	
  OS ́

  	
  =

  	
  the number of shares of Common Stock outstanding
  immediately after the expiration of such tender or exchange offer (after
  giving effect to the purchase or exchange of shares pursuant to such tender
  or exchange offer); and

  
	
   

  	
   

  	
   

  
	
  SP ́

  	
  =

  	
  the Last Reported Sale Price of Common Stock on the Trading
  Day succeeding the date such tender or exchange offer expires.

  



If the Company or one of its
Subsidiaries is obligated to purchase Common Stock pursuant to any such tender
or exchange offer but are permanently prevented by applicable law from
effecting any such purchase or all such purchases are rescinded, the new Base
Conversion Rate shall be readjusted to be the Base Conversion Rate that would
be in effect if such tender or exchange offer had not been made.


(f)                          If the
application of the foregoing formulas in this Section 12.02 would result in a
decrease in the Base Conversion Rate, no adjustment to the Base Conversion Rate
will be made (except on account of share combinations).


(g)                       No
adjustment to the Base Conversion Rate will be made unless as specifically set
forth in this Section 12.02 and Section 12.03. 
Without limiting the foregoing, no adjustment to the Base Conversion
Rate need be made:


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


(ii)          upon the issuance of any
shares of Common Stock or options or rights to purchase shares of Common Stock
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)       upon the issuance of any
shares of Common Stock pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security not described in clause (ii) above and
outstanding as of the Issue Date;


(iv)      for a change in the par
value of the Common Stock; or


(v)         for accrued and unpaid
Interest (including Additional Interest, if any).


(h)                       Adjustments
to the Applicable Conversion Rate will be calculated to the nearest 1/10,000th
of a share. The Company shall not be required to make an 



 77
 









adjustment in the Base Conversion Rate unless the
adjustment would require a change of at least 1% in the Base Conversion Rate; provided that the Company shall carry forward any
adjustments that are less than 1% of the Base Conversion Rate and make such
carried forward adjustments, regardless of whether the aggregate adjustment is
less than 1% within one year of the first such adjustment carried forward, upon
a Designated Event, upon any conversion of Securities called for redemption, or
upon conversion in connection with a Fundamental Change or during the 60 day
period prior to Stated Maturity.


(i)                           Whenever
the Base Conversion Rate, Incremental Share Factor and Daily Share Cap are adjusted
as herein provided, the Company shall promptly file with the Trustee and any
Conversion Agent other than the Trustee an Officers’ Certificate setting forth
the Base Conversion Rate, Incremental Share Factor and Daily Share Cap after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment.  Unless and until a Trust
Officer of the Trustee shall have received such Officers’ Certificate, the Trustee
shall not be deemed to have knowledge of any adjustment of the Base Conversion
Rate, Incremental Share Factor and Daily Share Cap and may assume that the last
Base Conversion Rate, Incremental Share Factor and Daily Share Cap 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 Base Conversion Rate, Incremental Share Factor
and Daily Share Cap setting forth the adjusted Base Conversion Rate, Incremental
Share Factor and Daily Share Cap and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Base Conversion
Rate, Incremental Share Factor and Daily Share Cap to the Holder of each
Security at such Holder’s last address appearing on the Securities Register
provided for in Section 2.05 of this Indenture within 20 days after execution
thereof.  Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.


(j)                           For
purposes of this Section 12.02, 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. 
If the Company pays any dividend or makes any distribution on, or issues
any rights, options or warrants in respect of, shares of Common Stock held in
treasury by the Company, the Company shall not issue, transfer or convey such
shares of Common Stock in a manner that would have the effect of circumventing
the provisions of this Section 12.02.


(k)                        Whenever
any provision of this Article 12 requires a calculation of an average of Last
Reported Sale Prices over a span of multiple days, the Company will make
appropriate adjustments (determined in good faith by the Board of Directors) to
account for any adjustment to the Base Conversion Rate that becomes effective,
or any event requiring an adjustment to the Base 



 78
 









Conversion Rate where the Ex-Dividend Date of the
event occurs, at any time during the period from which the average is to be
calculated.


Section 12.03. Adjustment to Common Stock Delivered Upon Certain Fundamental
Changes.  (a) If a Holder elects to convert
Securities any time on or after the 30th Scheduled Trading Day prior to the
anticipated effective date of a Fundamental Change, until the related
Designated Event Repurchase Date, and the effective date of such event occurs
on or prior to June 20, 2014, unless the Company elects to adjust the
Applicable Conversion Rate and related Conversion Obligation as described below
under Section 12.04, the Applicable Conversion Rate (or, if applicable, the
Settlement Amount) for such Securities shall be increased by an additional
number of shares of Common Stock (the “Additional Shares)
as described below; provided,
however, that no increase shall be made in the case of a Fundamental Change if
at least 90% of the consideration paid for the Common Stock (excluding cash
payments for fractional shares and cash payments made pursuant to dissenters’
appraisal rights) in such Fundamental Change transaction consists of shares of
capital stock or American Depositary Receipts in respect of shares of capital
stock traded on NASDAQ or another U.S. securities exchange or quoted on another
established automated over-the-counter trading market (or that will be so
traded or quoted immediately following the transaction) and as a result of such
transaction or transactions the Securities become convertible into cash and/or
such shares of such capital stock or such American Depositary Receipts as
described under Section 12.01(d) above. The Company shall notify Holders of the
occurrence of any such Fundamental Change and issue a press release no later
than 30 Scheduled Trading Days prior to the anticipated effective date of such
transaction. Such notice shall also state whether such Fundamental Change shall
constitute a Public Acquirer Change of Control and whether the Company will
elect to adjust the Applicable Conversion Rate and related Conversion
Obligations described below under Section 12.04.  The Company shall settle conversions of such
Securities as described under clause (d) below.


(b)                       The number
of Additional Shares will be determined by reference to the table attached as
Schedule A hereto, based on the actual effective date on which the Fundamental
Change occurs or becomes effective (the “Effective Date”)
and the Stock Price paid per share of Common Stock with respect to such
Fundamental Change; provided that
if the Stock Price is between two Stock Price amounts set forth in such table
or the Effective Date is between two Effective Dates in the table, the number
of Additional Shares will be determined by a straight-line interpolation
between the number of Additional Shares set forth for the higher and lower
Stock Price amounts and the two dates, as applicable, based on a 365-day year; provided further that if the Stock Price
is greater than $225.00 per share (subject to adjustment as set forth in clause (c)
below) or less than $28.10 per share (subject to adjustment as set forth in
clause (c) below), then no Additional Shares will be added to the Applicable
Conversion Rate (or Settlement 



 79
 









Amount, as applicable).  Notwithstanding the foregoing, the Applicable
Conversion Rate shall not exceed 35.5872 per $1,000 principal amount of Securities
on account of adjustments pursuant to this Section 12.03, subject to adjustments
set out in Section 12.02(a) through (e).


(c)                        The Stock
Prices set forth in the first row of the table in Schedule A hereto will be
adjusted as of any date on which the Base Conversion Rate of the Securities is
otherwise adjusted pursuant to Section 12.02. 
The adjusted Stock Prices will equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator
of which is the Base Conversion Rate immediately prior to such adjustment and
the denominator of which is the Base Conversion Rate as so adjusted.  The number of Additional Shares set forth in
such table will be adjusted in the same manner as the Base Conversion Rate as
set forth in Section 12.02.


(d)                       If, as
described above, the Company shall be required to increase the Applicable
Conversion Rate (or Settlement Amount, as applicable) by the Additional Shares
as a result of a Fundamental Change, Securities surrendered for conversion
shall be settled as follows:


(i)             If the last day of
the applicable Observation Period related to Securities surrendered for
conversion is prior to the third Trading Day preceding the anticipated
effective date of the Fundamental Change, the Company shall settle such
conversion as described above under Section 12.01(d) by delivering the amount
of cash and shares of Common Stock, if any, based on the Applicable Conversion
Rate (or Settlement Amount, as applicable) otherwise applicable pursuant to Section
12.01(d) without regard to the number of Additional Shares to be added to the
Applicable Conversion Rate as described above, on the third Trading Day
immediately following the last day of the applicable Observation Period. In
addition, as soon as practicable following the actual effective date of the
Fundamental Change, the Company shall deliver the number of Additional Shares
(or units of Reference Property) by which the Applicable Conversion Rate (or
Settlement Amount, as applicable) was to be increased as described above.


(ii)          If the last day of the
applicable Observation Period related to Securities surrendered for conversion
is on or following the third Scheduled Trading Day preceding the anticipated
effective date of the Fundamental Change, the Company shall settle such
conversion as described above under Section 12.01(d) based on the Applicable
Conversion Rate (or Settlement Amount, as applicable) as increased by the
Additional Shares described above on the later to occur of (1) the actual
effective date of the transaction and (2) third Trading Day immediately
following the last day of the applicable Observation Period.



 80
 









Section 12.04. Conversion After a Public Acquirer Change of Control.  (a) In
the event of a Public Acquirer Change of Control, the Company may, in lieu of
increasing the Applicable Conversion Rate (or Settlement Amount, as applicable)
by Additional Shares pursuant to Section 12.03 above and in lieu of application
of Section 12.05, elect to adjust the Conversion Obligation such that from and
after the Effective Date of such Public Acquirer Change of Control, Holders
shall be entitled to convert their Securities, subject to the conditions in Section
12.01(a), into a number of shares of Public Acquirer Common Stock, still
subject to the Company’s right to elect to deliver cash, shares of Common
Stock, or a combination thereof, and the arrangements for payment upon
conversion as set forth under Section 12.01(d) above.  If the Company shall make such election in
the manner described in Section 12.03(d) above, from and after the effect time
of such Public Acquirer Change of Control:


(i)             the Base Conversion
Rate will be adjusted by multiplying the Base Conversion Rate in effect immediately
prior to such transaction by a fraction (1) the numerator of which will be the
average of the Last Reported Sale Prices of the Common Stock for the five
consecutive Trading Days prior to but excluding the Effective Date of such
Public Acquirer Change of Control, and (2) the denominator of which will be the
average of the Last Reported Sale Prices of the Public Acquirer Common Stock
for the five consecutive Trading Days commencing on the Trading Day next
succeeding the Effective Date of such Public Acquirer Change of Control;


(ii)          the Incremental Share
Factor and Daily Share Cap will be adjusted by proportionately adjusting the
Incremental Share Factor and Daily Share Cap immediately prior to such
transaction on the same basis as the Base Conversion Rate; and


(iii)       the Daily VWAP will be
based upon the Last Reported Sale Prices of the Public Acquirer Common Stock.


(b)                       In order to
make the election pursuant to this Section 12.04, the Company and the issuer of
the Public Acquirer Common Stock shall execute with the Trustee a supplemental
indenture providing that each Security shall be convertible into Public
Acquirer Common Stock and execute an amendment to the Registration Rights
Agreement (to the extent any Registrable Securities (as defined therein) remain
outstanding) to make the provisions thereof apply to the Public Acquirer Common
Stock.  Such supplemental indenture shall
provide for provisions and adjustments which shall be as nearly equivalent as
may be practicable to the provisions and adjustments provided for in this Article
12 as determined in good faith by the Board of Directors of the Company or such
issuer (which shall be conclusive).



 81
 









Section 12.05.  Effect of Recapitalizations,
Reclassifications, and Changes of Common Stock. 
(a) Except as
otherwise provided in Section 12.04, if any of the following events occur: (i)
any recapitalization, reclassification or change of the outstanding shares of
Common Stock (other than a subdivision or combination to which Section 12.02(a)
applies), (ii) any consolidation, merger, binding share exchange or combination
of the Company with another Person, or (iii) any sale or conveyance to another
Person of all or substantially all of the property and assets of the Company
and its Subsidiaries, in each case as a result of which Common Stock would be
converted into, or exchanged for, stock, other securities, other property or
assets (including cash or any combination thereof) (any such event or
transaction, a “Reorganization Event”), then,
following the effective time of the Reorganization Event, the right to receive
shares of Common Stock upon conversion of Securities, if any, will be changed
into a right to receive the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination
thereof) (the “Reference Property”) that a Holder
would have been entitled to receive upon such Reorganization Event in respect
of Common Stock, as provided below.  If
the Reorganization Event causes Common Stock to be converted into the right to
receive more than a single type of consideration (determined based in part upon
any form of stockholder election), the Reference Property will be deemed to be
the weighted average of the types and amounts of consideration received by the holders
of Common Stock that affirmatively make such an election. The Company will
notify Holders of the weighted average as soon as practicable after such
determination is made.  Upon such
Reorganization Event, the Company or any Successor Company will enter into a
supplemental indenture consistent with the foregoing.  Such supplemental indenture shall provide for
provisions and adjustments which shall be as nearly equivalent as may be
practicable to the provisions and adjustments provided for in this Article 12, Article
10 and Article 11 and the definition of Fundamental Change, as appropriate, as
determined in good faith by the Company (which determination shall be
conclusive and binding), to make such provisions apply to such other Person if
different from the original issuer of the Securities.


(b)                       Following
the effective time of any such Reorganization Event, settlement of Securities
converted shall be in units of Reference Property or cash and units of
Reference Property, if applicable, determined in accordance with Error! Reference source not found. and Error! Reference source not found. above. The
Applicable Conversion Rate will relate to units of Reference Property (a “unit”
of Reference Property being the kind and amount of reference property that a
holder of one share of Common Stock would have received in such transaction);
and the Daily VWAP will be determined based on Daily VWAP of one unit of
Reference Property.


(c)                        Any issuer
of securities included in the Reference Property shall execute an amendment to
the Registration Rights Agreement (to the extent any Registrable Securities (as
defined therein) remain outstanding) to make the 



 82
 









provisions thereof applicable to such securities
included in the Applicable Consideration.


(d)                       The Company
shall cause notice of the execution of any supplemental indenture required by
this Section 12.05 to be mailed to each Holder, at its address appearing on the
Securities Register provided for in Section 2.05 of this Indenture, within 20
calendar 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 12.05 shall similarly apply to successive Reorganization
Events.


(f)                          If this Section
12.05 applies to any event or occurrence, Section 12.02 shall not apply in
respect of such event or occurrence.


(g)                       The Company
shall not become a party to any Reorganization Event unless its terms are
consistent with the foregoing.  None of
the foregoing provisions shall affect the right of a Holder of Securities to
convert the Securities as set forth in and subject to Section 12.01 prior to
the effective time of such Reorganization Event.


Section 12.06.  Responsibility of
Trustee.  The Trustee and any
other Conversion Agent shall not at any time be under any duty or
responsibility to the Company or any Holder of Securities to determine when the
Securities become convertible, the Base Conversion Rate, or whether any facts
exist which may require any adjustment of the Base 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 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 cash or shares of Common Stock or stock certificates or
other securities or property upon the surrender of 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 12.  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 12.05 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 Reorganization
Event or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 8.01, may accept as 



 83
 









conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Officers’ Certificate
with respect thereto.


Section 12.07.  Stockholder Rights Plan.  To the extent that the Company has
a rights plan in effect upon conversion of the Securities into Common Stock,
the Holder will receive upon conversion of the Securities in respect of which
the Company has elected to deliver Common Stock, if applicable, the rights
under the rights plan, unless prior to any conversion, the rights have
separated from the Common Stock, in which case, and only in such case, the Base
Conversion Rate will be adjusted at the time of separation as if the Company
distributed to all holders of Common Stock shares of the Company’s Capital Stock,
evidences of indebtedness or assets as described in Section 12.02(c) 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 stockholder rights
agreement to provide that upon conversion of the Securities the Holders will
receive, in addition to the Common Stock issuable upon such conversion, the
rights which would have attached to such Common Stock if the rights had not
become separated from the Common Stock under such applicable stockholder rights
agreement.


Section 12.08.  No Stockholder Rights.  For the avoidance of doubt,
Holders of Securities will not have any rights as holders of Common Stock
(including voting rights and rights to receive any dividends or other
distributions on the Common Stock) if and until the Securities are converted
into shares of Common Stock.


Section 12.09.  Withholding Taxes for
Adjustments in Conversation Rate.  If
the Company pays withholding taxes on behalf of a Holder as a result of an
adjustment to the Base Conversion Rate, the Company may, at its option, set off
such payments against payments of cash and shares of Common Stock on the
Securities.


Section 12.10.  Voluntary Increases To The
Base Conversion Rate.  The
Company may, to the extent permitted by law, increase the Base Conversion Rate
of the Securities by any amount for a period of at least 20 days if its Board
of Directors determines that such increase would be in the Company’s best
interest. The Company may also, but is not required to, increase the Base
Conversion Rate to avoid or diminish income tax to holders of the Company’s Common
Stock or rights to purchase shares of it Common Stock in connection with a
dividend or distribution of shares or rights to acquire shares or similar
event.



 84
 









ARTICLE 13

[Reserved]


ARTICLE 14

Miscellaneous


Section 14.01.  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 provision required by
the TIA shall control.


Section 14.02.  Notices.  Any notice or communication shall
be in writing in the English language (including telecopy or e-mail promptly
confirmed in writing) and delivered in person or mailed by first-class mail
addressed as follows:


if to the Company:


Cogent
Communications Group, Inc.

1015 31st St. NW


Washington,
DC  20007


Attention: Robert
N. Beury, Jr., Chief Legal Officer


if to the Trustee:


Wells Fargo Bank,
National Association Corporate Trust Services

625 Marquette Aveneue


MAC N9311-110


Minneapolis, MN 55479


Fax:  (612) 667-9825


The
Company or the Trustee by notice to the other may designate additional or
different addresses (including e-mail addresses) for subsequent notices or
communications.


Any
notice or communication mailed to a registered Holder shall be mailed to the Holder
at the Holder’s address as it appears on the Securities Register and shall be
sufficiently given if so mailed within the time prescribed; provided that notices given to Holders holding Securities in
book-entry form may be given through facilities of DTC or any successor
depositary.


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



 85
 









or not the addressee receives it, except that notices
to the Trustee shall be effective only upon receipt.


Section 14.03.  Communication by Holders with
other Holders.  Holders may
communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. 
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA § 312(c).


Section 14.04.  Certificate and Opinion as to
Conditions Precedent.  Upon
any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:


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


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


Section 14.05.  Statements Required in
Certificate or Opinion.  Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:


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


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


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


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


In giving such Opinion of Counsel, counsel may rely as
to factual matters on an Officers’ Certificate or on certificates of public
officials.


Section 14.06.  When Securities Are Disregarded.  In determining whether the Holders
of the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or by any 



 86
 









controlled Affiliate of the Company shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities as to which a Trust Officer of
the Trustee has received an Officers’ certificate stating that such Securities
are owned shall be so disregarded.  Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.


Section 14.07.  Rules by Trustee, Paying Agent
and Registrar.  The Trustee
may make reasonable rules for action by, or a meeting of, Holders.  The Registrar and the Paying Agent may make
reasonable rules for their functions.


Section 14.08.  Legal Holidays.  A “Legal
Holiday” is a Saturday, a Sunday or other day on which commercial
banking institutions are authorized or required to be closed in New York City
or the city in which the Corporate Trust Office is located from time to time.  If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest or Additional Interest, if any, shall accrue for the intervening
period.  If a Regular Record Date is a
Legal Holiday, the record date shall not be affected.


Section 14.09.  Governing Law.  THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.


Section 14.10.  No Recourse Against
Others.  An incorporator,
director, officer, employee, Affiliate or stockholder of the Company, solely by
reason of this status, shall not have any liability for any obligations of the
Company under the Securities, 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 Holder shall
waive and release all such liability. The waiver and release shall be part of
the consideration for the issue of the Securities.


Section 14.11.  Successors.  All agreements of the Company in
this Indenture and the Securities shall bind its successors.  All agreements of the Trustee in this
Indenture shall bind its successors.


Section 14.12.  Multiple Originals.  The parties may sign any number of
copies of this Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.  One signed copy is enough to
prove this Indenture.


Section 14.13.  Qualification of
Indenture.  The Company shall
qualify this Indenture under the TIA in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses 



 87
 









(including attorneys’ fees and expenses for the
Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Securities and the printing of this Indenture and the
Securities.


Section 14.14.  Table of Contents;
Headings.  The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.


Section 14.15.  Severability Clause.  In case any provision in this
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and such provision shall be ineffective only to the extent
of such invalidity, illegality or unenforceability.


Section 14.16.  Calculations.  Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under this
Indenture and the Securities. The Company will make all such calculations in
good faith and, absent manifest error, its calculations will be final and
binding on Holders. The Company upon request will provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the
Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company’s calculations without independent verification. The Trustee
will deliver a copy of such schedule to any Holder upon the request of such
Holder.


[Remainder of the page intentionally left blank]



 88















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


	
  

  	
  COGENT COMMUNICATIONS

  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


















SCHEDULE
A


The
following table sets forth the number of Additional Shares to be added to the
Applicable Conversion Rate (or Settlement Amount, as applicable) per $1,000
principal amount of Securities pursuant to Section 12.03 of this Indenture:


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $28.10

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $49.18

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $65.00

  	
   

  	
  $70.00

  	
   

  
	
  June 11, 2007

  	
   

  	
  15.2517

  	
   

  	
  14.7604

  	
   

  	
  13.9177

  	
   

  	
  13.4888

  	
   

  	
  13.2801

  	
   

  	
  13.2098

  	
   

  	
  11.1286

  	
   

  	
  9.7101

  	
   

  	
  8.5476

  	
   

  	
  7.5757

  	
   

  
	
  June 15, 2008

  	
   

  	
  15.2517

  	
   

  	
  14.2988

  	
   

  	
  13.3452

  	
   

  	
  12.8697

  	
   

  	
  12.6563

  	
   

  	
  12.5969

  	
   

  	
  10.5466

  	
   

  	
  9.1621

  	
   

  	
  8.0370

  	
   

  	
  7.1025

  	
   

  
	
  June 15, 2009

  	
   

  	
  15.2517

  	
   

  	
  13.7655

  	
   

  	
  12.6635

  	
   

  	
  12.1229

  	
   

  	
  11.8969

  	
   

  	
  11.8484

  	
   

  	
  9.8333

  	
   

  	
  8.4894

  	
   

  	
  7.4089

  	
   

  	
  6.5200

  	
   

  
	
  June 15, 2010

  	
   

  	
  15.2517

  	
   

  	
  13.1613

  	
   

  	
  11.8442

  	
   

  	
  11.2030

  	
   

  	
  10.9478

  	
   

  	
  10.9069

  	
   

  	
  8.9308

  	
   

  	
  7.6359

  	
   

  	
  6.6103

  	
   

  	
  5.7790

  	
   

  
	
  June 15, 2011

  	
   

  	
  15.2517

  	
   

  	
  12.9978

  	
   

  	
  10.8655

  	
   

  	
  10.0609

  	
   

  	
  9.7453

  	
   

  	
  9.7032

  	
   

  	
  7.7695

  	
   

  	
  6.5353

  	
   

  	
  5.5799

  	
   

  	
  4.8237

  	
   

  
	
  June 15, 2012

  	
   

  	
  15.2517

  	
   

  	
  12.9978

  	
   

  	
  9.7093

  	
   

  	
  8.6182

  	
   

  	
  8.1794

  	
   

  	
  8.1167

  	
   

  	
  6.2301

  	
   

  	
  5.0774

  	
   

  	
  4.2207

  	
   

  	
  3.5709

  	
   

  
	
  June 15, 2013

  	
   

  	
  15.2517

  	
   

  	
  12.9978

  	
   

  	
  8.4070

  	
   

  	
  6.7226

  	
   

  	
  5.9994

  	
   

  	
  5.8707

  	
   

  	
  4.0558

  	
   

  	
  3.0494

  	
   

  	
  2.3709

  	
   

  	
  1.9066

  	
   

  
	
  June 20, 2014

  	
   

  	
  15.2517

  	
   

  	
  12.9978

  	
   

  	
  8.2359

  	
   

  	
  4.6645

  	
   

  	
  1.8867

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $75.00

  	
   

  	
  $80.00

  	
   

  	
  $90.00

  	
   

  	
  $100.00

  	
   

  	
  $125.00

  	
   

  	
  $150.00

  	
   

  	
  $175.00

  	
   

  	
  $200.00

  	
   

  	
  $225.00

  	
   

  
	
  June 11, 2007*

  	
   

  	
  6.7511

  	
   

  	
  6.0475

  	
   

  	
  4.9040

  	
   

  	
  4.0196

  	
   

  	
  2.4715

  	
   

  	
  1.4753

  	
   

  	
  0.7749

  	
   

  	
  0.2528

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2008

  	
   

  	
  6.3144

  	
   

  	
  5.6464

  	
   

  	
  4.5654

  	
   

  	
  3.7375

  	
   

  	
  2.2984

  	
   

  	
  1.3735

  	
   

  	
  0.7212

  	
   

  	
  0.2326

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2009

  	
   

  	
  5.7775

  	
   

  	
  5.1525

  	
   

  	
  4.1503

  	
   

  	
  3.3919

  	
   

  	
  2.0871

  	
   

  	
  1.2503

  	
   

  	
  0.6569

  	
   

  	
  0.2091

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2010

  	
   

  	
  5.0948

  	
   

  	
  4.5245

  	
   

  	
  3.6249

  	
   

  	
  2.9551

  	
   

  	
  1.8216

  	
   

  	
  1.0971

  	
   

  	
  0.5779

  	
   

  	
  0.1814

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2011

  	
   

  	
  4.2155

  	
   

  	
  3.7180

  	
   

  	
  2.9550

  	
   

  	
  2.4013

  	
   

  	
  1.4887

  	
   

  	
  0.9080

  	
   

  	
  0.4826

  	
   

  	
  0.1483

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2012

  	
   

  	
  3.0693

  	
   

  	
  2.6746

  	
   

  	
  2.0997

  	
   

  	
  1.7037

  	
   

  	
  1.0789

  	
   

  	
  0.6787

  	
   

  	
  0.3682

  	
   

  	
  0.1093

  	
   

  	
  0.0000

  	
   

  
	
  June 15, 2013

  	
   

  	
  1.5827

  	
   

  	
  1.3513

  	
   

  	
  1.0520

  	
   

  	
  0.8689

  	
   

  	
  0.5959

  	
   

  	
  0.4040

  	
   

  	
  0.2308

  	
   

  	
  0.0647

  	
   

  	
  0.0000

  	
   

  
	
  June 20, 2014

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 

















EXHIBIT A


[FORM OF FACE OF SECURITY]


THIS NOTE IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET SEQ. OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS
THEREUNDER. FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS NOTE, (1) THE ISSUE
PRICE IS $977.50; (2) THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS $22.50;
(3) THE ISSUE DATE IS JUNE 11, 2007; AND (4) THE YIELD TO MATURITY IS
[]% (COMPOUNDED SEMI-ANNUALLY).


[Restricted Securities
Legend, if applicable]

[Global Security Legend, if applicable]


No. [    ]                                                                           Principal
Amount $[                ],
as revised by the Schedule of Increases and Decreases in Global Security
attached hereto.


CUSIP NO.: [   ]


ISIN: [   ]


1.00% Convertible
Senior Notes due 2027


Cogent
Communications Group, Inc., a Delaware corporation, promises to pay to [                            ],
or registered assigns, the principal sum of [                              ]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on June 15, 2027.


Interest Payment Dates:      June 15 and December 15

Regular Record Dates:        June 1 and
December 1


Additional
provisions of this Security are set forth on the attached “Terms of Securities.”


Dated:
[                     ]


	
  

  	
  COGENT COMMUNICATIONS

  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 A-1
 








 


	
  TRUSTEE’S CERTIFICATE OF

  AUTHENTICATION .

  
	
   

  
	
  WELLS FARGO
  BANK, NATIONAL

  ASSOCIATION

  
	
  as Trustee,
  certifies that this is one of the

  Securities referred to in the Indenture

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


TERMS OF SECURITIES


1.00% Convertible Senior
Notes due 2027


The
Company issued this Security under an Indenture dated as of June 11, 2007 (as
it may be amended or supplemented from time to time in accordance with the
terms thereof, the “Indenture”),
among the Company and the Trustee, to which reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders.  Additional Securities may be issued under the
Indenture in an unlimited aggregate principal amount subject to certain
conditions specified in the Indenture.


1.                                       Interest


Cogent
Communications Group, Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the “Company”),
promises to pay interest on the principal amount of this Security at the rate
of 1.00% per annum until (but excluding) June 15, 2027.


The
Company will pay interest semiannually in arrears on June 15 and December 15 of
each year (each, an “Interest Payment Date”),
commencing December 15, 2007, to Holders of record on the immediately preceding
June 1 and December 1.  Interest on the
Securities will accrue from the most recent date to which interest has been
paid on the Securities or, if no interest has been paid, from June 11,
2007.  Interest will be computed on the
basis of a 360-day year of twelve 30-day months.


2.                                       Method
of Payment


By
no later than 11:00 a.m. (New York City time) on the date on which any
principal of, interest (including Additional Interest, if any) or premium, if
any, on any Security is due and payable, the Company shall deposit with the



 A-2
 








Paying Agent money sufficient to pay such amount.  The Company will pay principal, premium and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. 
Payments in respect of Securities represented by a Global Security
(including principal, interest (including Additional Interest, if any) and
premium, if any) will be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company.  The Company will pay principal of Definitive
Securities at the office or agency designated by the Company for such
purpose.  Interest (including Additional
Interest, if any), on Definitive Securities will be payable (i) to Holders
having an aggregate principal amount of $1,000,000 or less, by check mailed to
the Holders of these Securities and (ii) to Holders having an aggregate
principal amount of more than $1,000,000, either by check mailed to each Holder
or, upon application by a Holder to the Registrar not later than the relevant
record date, by wire transfer in immediately available funds to that Holder’s
account within the United States, which application shall remain in effect
until the Holder notifies, in writing, the Registrar to the contrary.


3.                                       Redemption


Subject
to certain conditions specified in the Indenture, the Securities will be
redeemable, at the option of the Company, in whole at any time or in part from
time to time, at any time on or after June 20, 2014 and at a price equal to
100% of the principal amount of Securities to be redeemed, plus accrued and
unpaid interest (including Additional Interest, if any) to but excluding the
Redemption Date provided, however, that if the
Redemption Date falls after a Regular Record Date for the payment of interest
and on or prior to the corresponding Interest Payment Date, the Company shall
pay accrued and unpaid interest to but excluding the Redemption Date to
the  Holder of record at the close of
business on such Regular Record Date on the Interest Payment Date and the
Redemption Price for the Securities will be 100% of the principal amount of the
Securities to be redeemed.


4.                                       Purchase
by the Company at the Option of the Holder; Purchase at the Option of the
Holder Upon a Designated Event


(a)           Subject to the terms and conditions
of the Indenture, a Holder shall have the option to require the Company to
purchase all or a portion of its Securities held by such Holder on each of June
15, 2014, June 15, 2017 and June 15, 2022 (each a “Purchase Date”) at a
Purchase Price specified in the Indenture.


(b)           If a Designated Event shall occur at
any time, each Holder shall have the right, at such Holder’s option and subject
to the terms and conditions of the Indenture, to require the Company to
purchase all or a portion of its Securities at a Designated Event Purchase
Price specified in the Indenture.



 A-3
 








5.                                       Conversion


Subject
to the procedures for conversion set forth in the Indenture, a Holder may
convert its Securities on or prior to the close of business on the Scheduled
Trading Day immediately preceding Stated Maturity only when one or more of the
conditions specified in the Indenture are met and during the related specified
period.  On or after April 15, 2027, a
Holder may convert its Securities at any time prior to the close of business on
the Scheduled Trading Day immediately preceding the Stated Maturity regardless
of such conditions specified in the Indenture.


The
initial Base Conversion Rate is 20.3355 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment in certain events
described in the Indenture.  Upon
conversion, the Company will either (i) deliver shares of Common Stock based on
the Applicable Conversion Rate or (ii) pay cash and shares of Common Stock, if
any, as set forth in the Indenture.  The
Company shall deliver cash in lieu of any fractional share of Common Stock.


A
Holder may convert a portion of the Securities only if the principal amount of
such portion is $1,000 or a multiple of $1,000. No payment or adjustment shall
be made for dividends on the Common Stock except as provided in the Indenture.


6.                                       Denominations;
Transfer; Exchange


The
Securities are in registered form without coupons in denominations of principal
amount of $1,000 and 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 or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.  The Registrar need not
register the transfer of or exchange of Securities (i)     so selected for redemption or, if a portion of any Security is
selected for redemption, the portion thereof selected for redemption or (ii)
surrendered for conversion or, if a portion of any Security is surrendered for
conversion, the portion thereof surrendered for conversion.


7.                                       Persons
Deemed Owners


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


8.                                       Unclaimed
Money


If
money for the payment of principal, premium, if any, or interest (including
Additional Interest, if any) remains unclaimed for two years, the



 A-4
 








Trustee or Paying Agent shall pay the money back to
the Company, subject to applicable abandoned property laws.  After any such payment, Holders entitled to
the money must look only to the Company and not to the Trustee for payment.


9.                                       Amendment,
Waiver


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


In
addition, the Indenture permits an amendment of the Indenture or the Securities
without the consent of any Holder under certain circumstances specified in the
Indenture.


10.                                 Defaults
and Remedies


Subject
to the following paragraph, if an Event of Default specified in the Indenture
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities by notice to
the Company to be due and payable immediately. 
In addition, certain specified Events of Default will cause the
Securities to become immediately due and payable without further action by the
Holders.


As
set forth in the Indenture, the sole remedy for an Event of Default relating to
the Company’s failure to comply with the reporting obligations under Article 5
of the Indenture, and for any failure to comply with the requirements of
Section 314(a)(1) of the TIA, will for the 60 days after the occurrence of such
an Event of Default consist exclusively of the right to receive Additional
Interest on the principal amount of the Securities at a rate equal to 0.25% per
annum.


Holders
may not enforce the Indenture or the Securities except as provided in the
Indenture.  The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or
security satisfactory to it.  Subject to
certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders notice
of any continuing Default or Event of Default (except a Default or Event of
Default in payment of principal, interest (including Additional Interest, if
any) or premium, if any) if it determines that withholding notice is in their
interest.



 A-5
 








11.                                 Trustee
Dealings with the Company


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


12.                                 No
Recourse Against Others


An
incorporator, director, officer, employee, Affiliate or stockholder of the
Company, solely by reason of this status, shall not have any liability for any
obligations of the Company under the Securities, 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
Holder waives and releases all such liability. 
The waiver and release are part of the consideration for the issue of
the Securities.


13.                                 Authentication


This
Security shall not be valid until an authorized signatory of the Trustee
manually authenticates this Security.


14.                                 Abbreviations


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


15.                                 CUSIP
Numbers


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


16.                                 Governing
Law


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



 A-6
 








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


	
   

  	
  Cogent Communications Group,
  Inc.

  
	
   

  	
  1015 31st St. NW

  
	
   

  	
  Washington, DC
  20007

  
	
   

  	
  Attention:
  Robert N. Beury, Jr., Chief Legal Officer

  



 



 A-7














ASSIGNMENT FORM


To assign this Security,
fill in the form below:


I or we assign and
transfer this Security to


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


(Insert
assignee’s soc. sec. or tax I.D. No.)


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


Date:                                                                                                      Your
Signature:          


Signature Guarantee:               


(Signature must be guaranteed)


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


The signature(s) should
be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions) with membership in an approved
signature guarantee medallion program, pursuant to S.E.C. Rule 17Ad-15.


In connection with any
transfer or exchange of any of the Securities evidenced by this certificate
occurring prior to the date that is two years after the later of the date of
original issuance of such Securities and the last date, if any, on which such
Securities were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Securities are being:


CHECK ONE BOX BELOW:


	
  o

  	
  1

  	
  acquired for the undersigned’s own account, without
  transfer; or

  
	
   

  	
   

  	
   

  
	
  o

  	
  2

  	
  transferred to the Company; or

  
	
   

  	
   

  	
   

  
	
  o

  	
  3

  	
  transferred pursuant to an effective registration
  statement under the Securities Act of 1933, as amended (the “Securities
  Act”); or

  
	
   

  	
   

  	
   

  
	
  o

  	
  4

  	
  transferred pursuant to and in compliance with Rule
  144A under the Securities Act; or

  
	
   

  	
   

  	
   

  
	
  o

  	
  5

  	
  transferred pursuant to another available exemption
  from the registration requirements of the Securities Act.

  



Unless one of the boxes
is checked, the Trustee will refuse to register any of the Securities evidenced
by this certificate in the name of any Person other than the











registered Holder
thereof; provided, however, that
if box (5) is checked, the Trustee or the Company may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
legal opinions, certifications and other information as the Trustee or the
Company may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, such as the exemption provided
by Rule 144 under such Act.


	
  

  	
   

  	
   

  
	
   

  	
  Signature:

  



Signature Guarantee:


	
  

  	
   

  	
   

  	
   

  
	
  (Signature must be guaranteed)

  	
  Signature:

  



 


The signature(s) should
be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions) with membership in an approved
signature guarantee medallion program, pursuant to S.E.C. Rule 17Ad-15.


TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.


The undersigned
represents and warrants that it is purchasing this Security for its own account
or an account with respect to which it exercises sole investment discretion and
that it and any such account is a “qualified institutional buyer” within the meaning
of Rule 144A under the Securities Act of 1933, as amended, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.


	
  

  	
   

  
	
  Dated:

  



 











[TO BE ATTACHED TO GLOBAL
SECURITIES]


SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY


The following increases or decreases in this Global
Security have been made:


	
  

  	
   

  	
  Amount of decrease

  	
   

  	
  Amount of increase

  	
   

  	
  Principal Amount of

  	
   

  	
  Signature of

  	
   

  
	
   

  	
   

  	
  in Principal Amount

  	
   

  	
  in Principal Amount

  	
   

  	
  this Global Security

  	
   

  	
  authorized signatory

  	
   

  
	
   

  	
   

  	
  of this Global

  	
   

  	
  of this Global

  	
   

  	
  following such

  	
   

  	
  of Trustee or

  	
   

  
	
  Date

  	
   

  	
  Security

  	
   

  	
  Security

  	
   

  	
  decrease or increase

  	
   

  	
  Securities Custodian

  	
   

  
	
    

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
     

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 











FORM OF CONVERSION NOTICE


To:          Cogent
Communications Group, Inc.


The
undersigned registered Holder of this Security hereby exercises the option to
convert this Security, or portion hereof (which is $1,000 principal amount or a
multiple thereof) designated below in accordance with the terms of the
Indenture referred to in this Security, and directs that cash, and the shares
of Common Stock of Cogent Communications Group, Inc., if any, issuable and
deliverable upon such conversion, and any Securities representing any
unconverted principal amount hereof, be issued and delivered to the registered
Holder hereof unless a different name has been indicated below. If cash, shares
or any portion of this Security not converted are to be issued in the name of a
Person other than the undersigned, the undersigned shall pay all transfer taxes
payable with respect thereto.


This
notice shall be deemed to be an irrevocable exercise of the option to convert
this Security.


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to S.E.C. Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
  Fill in for registration of shares if to be
  delivered, and Securities if to be issued other than to and in the name of
  registered holder:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount to be converted (if less than
  all):$        ,000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (City state and zip code)

  	
   

  	
  Social Security or Other Taxpayer Number

  
	
  Please print name and address

  	
   

  	
   

  



 











FORM OF DESIGNATED EVENT
PURCHASE NOTICE


To:          Cogent
Communications Group, Inc.


The
undersigned registered Holder of this Security hereby acknowledges receipt of a
notice from Cogent Communications Group, Inc. (the “Company”)
as to the occurrence of a Fundamental Change with respect to the Company and
requests and instructs the Company to repurchase this Security, or the portion
hereof (which is $1,000 principal amount or a multiple thereof) designated
below, in accordance with the terms of the Indenture referred to in this Security
and directs that the check in payment for this Security or the portion thereof
and any Securities representing any unrepurchased principal amount hereof, be
issued and delivered to the registered Holder hereof unless a different name
has been indicated below. If any portion of this Security not repurchased is to
be issued in the name of a Person other than the undersigned, the undersigned
shall pay all transfer taxes payable with respect thereto.


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to S.E.C. Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
  Fill in if a check is to be issued, or Securities
  are to be issued, other than to and in the name of registered Holder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount
  to be purchased

  
	
   

  	
   

  	
  (if less than
  all):   $                         ,000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (City state and zip code)

  	
   

  	
  Social Security
  or Other Taxpayer Number

  
	
  Please print name and address

  	
   

  	
   

  



 











FORM OF PURCHASE NOTICE


To:          Cogent
Communications Group, Inc.


The
undersigned registered Holder of this Security hereby acknowledges receipt of a
notice from Cogent Communications Group, Inc. (the “Company”)
as to the Holder’s option to require the Company to repurchase this Security
and requests and instructs the Company to repurchase this Security, or the
portion hereof (which is $1,000 principal amount or a multiple thereof)
designated below, in accordance with the terms of the Indenture referred to in
this Security and directs that the check in payment for this Security or the
portion thereof and any Securities representing any unrepurchased principal
amount hereof, be issued and delivered to the registered Holder hereof unless a
different name has been indicated below. If any portion of this Security not
repurchased is to be issued in the name of a Person other than the undersigned,
the undersigned shall pay all transfer taxes payable with respect thereto.


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
  The signature(s) should be guaranteed by an eligible
  guarantor institution (banks, stockbrokers, savings and loan associations and
  credit unions) with membership in an approved signature guarantee medallion
  program, pursuant to S.E.C. Rule 17Ad-15.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature
  Guarantee

  
	
   

  	
   

  	
   

  
	
  Fill in if a check is to be issued, or Securities
  are to be issued, other than to and in the name of registered Holder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Name)

  	
   

  	
  Principal amount
  to be purchased

  
	
   

  	
   

  	
  (if less than
  all):   $                         ,000

  
	
   

  	
   

  	
   

  
	
  (Street Address)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (City state and zip code)

  	
   

  	
  Social Security
  or Other Taxpayer Number

  
	
  Please print name and address