Unassociated Document

ARTICLE THREE

PURCHASE AT OPTION OF HOLDERS UPON

A FUNDAMENTAL CHANGE OF CONTROL

SECTION 3.01.

Purchase at the Option of Holders upon a Fundamental Change of Control.

(a) Generally. If there shall occur a Fundamental Change of Control at any time prior to the Maturity Date of the Notes, then each Holder shall have the right, at such Holder’s option, to require the Issuer to purchase all of such Holder’s Notes, or any portion thereof in principal amount that is equal to $1,000 or an integral multiple thereof, on a date specified by the Issuer that is not less than 25 Business Days nor more than 30 Business Days after the Fundamental Change of Control, subject to extension to comply with applicable law (the “Fundamental Change of Control Purchase Date”), at a purchase price in cash equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change of Control Purchase Date (the “Fundamental Change of Control Purchase Price”), subject to the satisfaction by the Holder of the requirements set forth in Section 3.01(c); provided, however, if the Fundamental Change of Control Purchase Date occurs after a Record Date and on or prior to the Interest Payment Date to which it relates, the Issuer will pay accrued and unpaid interest to the Holder of record as of the corresponding Record Date and the Fundamental Change of Control Purchase Price payable to the Holder of such Note will be 100% of the principal amount of such Note.

(b) Delivery of Fundamental Change of Control Issuer Notice. On or before the 5th calendar day after the occurrence of a Fundamental Change of Control, the Issuer shall deliver or cause to be delivered to all Holders of record of the Notes as of such date at their addresses shown in the register for the Notes a notice as set forth in Section 3.02 (the “Fundamental Change of Control Issuer Notice”) with respect to such Fundamental Change of Control. The Issuer shall also deliver a copy of the Fundamental Change of Control Issuer Notice to the Trustee, the Conversion Agent and the Paying Agent at such time as it is mailed to Holders of Notes. Simultaneously with providing such Fundamental Change of Control Issuer Notice, the Issuer shall publicly announce the relevant information through a reputable national newswire in the United States, file such press release with the SEC on Form 8-K and make such information available on the Issuer’s website.

No failure of the Issuer to give the foregoing notices and no defect therein shall limit any Holder’s purchase rights or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 3.01.

(c) Delivery of Fundamental Change of Control Purchase Notice By Holders. For Notes to be purchased at the option of the Holder, the Holder must deliver to the Paying Agent, at any time after the occurrence of the Fundamental Change of Control and prior to Close of Business, on the Business Day immediately preceding the Fundamental Change of Control Purchase Date,

(i) A duly completed notice (the “Fundamental Change of Control Purchase Notice”) in the form set forth on Exhibit I hereto, which must specify:

(1) If the Notes are Physical Notes, the certificate numbers of the Holder’s Notes to be delivered for purchase or if such Notes are not Physical Notes, the Holder’s notice must comply with the appropriate procedures of the Depositary and its direct and indirect participants;

(2) The portion of the principal amount of the Holder’s Notes to be purchased, which must be $1,000 or an integral multiple thereof; and

-53-

(3) That the Holder’s Notes are to be purchased by the Issuer pursuant to the applicable provisions of the Notes and this Indenture.

(4) Delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Issuer) at any time after delivery of the Fundamental Change of Control Purchase Notice (together with all necessary endorsements) at the applicable Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Issuer), such delivery being a condition to receipt by the Holder of the Fundamental Change of Control Purchase Price therefor; provided, that such Fundamental Change of Control Purchase Price shall be so paid pursuant to this Section 3.01 only if the Notes so delivered to the Trustee (or other Paying Agent appointed by the Issuer) shall conform in all respects to the description thereof in the related Fundamental Change of Control Purchase Notice and no written notice of withdrawal in accordance and complying with Section 3.03 shall have been received by the Paying Agent at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change of Control Purchase Date.

All questions as to the validity, eligibility (including time of receipt) and acceptance of Notes for purchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error. The Issuer shall purchase from the Holder thereof, pursuant to this Section 3.01, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple thereof. Provisions of this Indenture that apply to the purchase of all of a Note shall apply to the purchase of such portion of such Note. The Paying Agent shall promptly notify the Issuer of the receipt by it of any Fundamental Change of Control Purchase Notice or written notice of withdrawal thereof.

(d) No Payment During Events of Default. Notwithstanding the foregoing, no Notes may be purchased by the Issuer at the option of the Holders pursuant to this Section 3.01 if an Event of Default has occurred and is continuing other than an Event of Default that is cured by the payment of the Fundamental Change of Control Purchase Price on the Fundamental Change of Control Purchase Date.

Any purchase by the Issuer contemplated pursuant to the provisions of this Section 3.01 shall be consummated by the delivery to the Trustee of the consideration to be received by the Holder promptly following the later of the Fundamental Change of Control Purchase Date or the time of the book-entry transfer or delivery of the Notes.

SECTION 3.02.

Fundamental Change of Control Issuer Notice.

(a) The Fundamental Change of Control Issuer Notice. The Fundamental Change of Control Issuer Notice shall:

(i) State the Fundamental Change of Control Purchase Price including the amount of interest accrued and unpaid per $1,000 principal amount of Notes to, but excluding, the Fundamental Change of Control Purchase Date and the Fundamental Change of Control Purchase Date to which the Fundamental Change of Control Issuer Notice relates;

-54-

(ii) State the event constituting the Fundamental Change of Control and the Effective Date of the Fundamental Change of Control;

(iii) State whether the Fundamental Change of Control Purchase Price will be paid in cash;

(iv) State that Holders must exercise their right to elect purchase prior to Close of Business on the Business Day immediately preceding the Fundamental Change of Control Purchase Date by sending a Fundamental Change of Control Purchase Notice to the Paying Agent;

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

(vi) State that Notes must be surrendered to the Paying Agent to collect the Fundamental Change of Control Purchase Price;

(vii) State that a Holder may withdraw its Fundamental Change of Control Purchase Notice in whole or in part at any time prior to Close of Business on the Business Day immediately preceding the Fundamental Change of Control Purchase Date by delivering a valid written notice of withdrawal in accordance with Section 3.03;

(viii) State that the Notes are then convertible, the Conversion Rate and any adjustments to the Conversion Rate resulting from the Fundamental Change of Control transaction (pursuant to Section 3.01) and expected changes in cash, shares or other property deliverable upon conversion of the Notes as a result of the occurrence of the Fundamental Change of Control;

(ix) State that if Notes are converted in connection with a Fundamental Change of Control (rather than repurchased) a Holder shall be entitled to receive Additional Shares and a Make Whole Payment (as defined in Section 5.07(b) and Section 5.07(f));

(x) State the number of Additional Shares and Make Whole Payment that would be payable as a result of such Fundamental Change of Control transaction, if any, if the Notes are converted in connection with such Fundamental Change of Control (rather than repurchased);

(xi) State that for Notes to be converted in connection with a Fundamental Change of Control, Notes must be converted at any time on or after the Effective Date of the Fundamental Change of Control but prior to the Close of Business on the Fundamental Change of Control Purchase Date;

(xii) State that Notes as to which a Fundamental Change of Control Purchase Notice has been given by a Holder may be converted and the Additional Shares and Make Whole Payment received only if a Fundamental Change of Control Purchase Notice is not given or is withdrawn in accordance with the terms of this Indenture; and

(xiii) State the CUSIP number of the Notes.

-55-

(b) Other Matters. A Fundamental Change of Control Issuer Notice may be given by the Issuer or, at the Issuer’s request, the Trustee shall give such Fundamental Change of Control Issuer Notice in the Issuer’s name and at the Issuer’s expense; provided, that the text of the Fundamental Change of Control Issuer Notice shall be prepared by the Issuer.

The Issuer will, to the extent required, (i) comply with the provisions of Rule 13e-4 and Rule 14e-1 (or any successor provision) and any other tender offer rules under the Exchange Act that may be applicable at the time of the purchase of the Notes, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (iii) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 3.01 to be exercised in the time and in the manner specified in Section 3.01.

Notwithstanding the foregoing, the Issuer will not be required to make an offer to purchase the Notes pursuant to this Article Three after the Maturity Date or after the Conversion Termination Date.

No failure of the Issuer to give the foregoing notices and no defect therein shall limit any Holder’s purchase rights or affect the validity of the proceedings for the purchase of Notes pursuant to this Section 3.02.

SECTION 3.03.

Effect of Fundamental Change of Control Purchase Notice; Withdrawal.

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

(b) Withdrawal of Fundamental Change of Control Purchase Notice. A Fundamental Change of Control Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent at any time prior to Close of Business time on the Business Day immediately preceding the Fundamental Change of Control Purchase Date, specifying:

-56-

(i) If the Notes are Physical Notes, the certificate numbers of the withdrawn Notes, or if such Notes are not Physical Notes, the notice must comply with appropriate procedures of the Depositary and its direct and indirect participants;

(ii) The principal amount of the Notes with respect to which notice of withdrawal is being submitted, which must be $1,000 or integral multiples thereof; and

(iii) The principal amount, if any, of such Notes which remains subject to the original Fundamental Change of Control Purchase Notice and which has been or will be delivered for purchase by the Issuer, which must be $1,000 or integral multiples thereof.

If a Fundamental Change of Control Purchase Notice is properly withdrawn, the Issuer shall not be obligated to purchase the Notes listed on the Fundamental Change of Control Purchase Notice nor pay the Fundamental Change of Control Purchase Price therefor.

SECTION 3.04.

Deposit of Fundamental Change of Control Purchase Price.

(a) Deposit of Funds. No later than 11:00 a.m. New York City time on the Fundamental Change of Control Purchase Date, the Issuer shall deposit with the Paying Agent (or, if the Issuer or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount in cash (in immediately available funds if deposited on such Fundamental Change of Control Purchase Date) sufficient to pay the Fundamental Change of Control Purchase Price, of all the Notes or portions thereof that are to be purchased as of the Fundamental Change of Control Purchase Date. The Issuer shall promptly notify the Trustee in writing of the amount of any deposits of cash made pursuant to this Section 3.04. The Issuer shall be entitled to make any deposit of funds contemplated by this Section 3.04 under arrangements designed to permit such funds to generate interest or other income for the Issuer, and the Issuer shall be entitled to receive all interest and other income earned by any funds while such funds shall be deposited as contemplated by this Article Three, provided, that the Issuer shall maintain on deposit funds sufficient to satisfy all payments which the deposit arrangement shall have been established to satisfy.

(b) Interest shall cease to Accrue. If on the Fundamental Change of Control Purchase Date the Paying Agent holds funds sufficient to pay the Fundamental Change of Control Purchase Price of the Notes that Holders have elected to require the Issuer to purchase in accordance with Section 3.01(a), then, as of the Fundamental Change of Control Purchase Date, (i) such Notes will cease to be outstanding and interest will cease to accrue thereon and (ii) all other rights of the Holder in respect thereof will terminate (other than the right to receive the Fundamental Change of Control Purchase Price and previously accrued and unpaid interest upon delivery or transfer of such Notes). This will be the case whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Paying Agent.

-57-

SECTION 3.05.

Notes Purchased in Whole or in Part; Repayment to the Issuer.

(a) Notes Purchased in Whole or in Part. Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, 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 Note so surrendered which is not purchased; provided, that in no event shall a Note of a principal amount of $1,000 or less be redeemed in part.

(b) Repayment to the Issuer. The Paying Agent shall return to the Issuer any cash that remains unclaimed, together with interest, if any, thereon, held by it for the payment of the Fundamental Change of Control Purchase Price; provided, that to the extent that the aggregate amount of cash deposited by the Issuer pursuant to Section 3.04 exceeds the aggregate Fundamental Change of Control Purchase Price of the Notes or portions thereof which the Issuer is obligated to purchase as of the Fundamental Change of Control Purchase Date, then as soon as practicable following the Fundamental Change of Control Purchase Date, the Paying Agent shall return any such excess to the Issuer.

ARTICLE FOUR

REDEMPTION

SECTION 4.01.

Redemption at the Option of the Issuer.

(a) Redemption at the Option of the Issuer Following Conversion Termination Date. Notes may not be redeemed by the Issuer in whole or in part at any time, except as provided in this Article Four. On or after the Conversion Termination Date, the Issuer may, at its option, redeem outstanding Notes, in whole or in part, out of funds legally available therefor, at any time or from time to time, subject to the notice provisions and provisions for partial redemption described below, at a price (the “Redemption Price”) equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the Conversion Termination Date, plus, the Cash Conversion Amount, if any, in respect of the Notes to be redeemed; provided, that Notes subject to redemption under this Article Four shall not include any Notes specified for conversion pursuant to an Election Notice as described in Section 5.08(c). Subject to the Conversion Cap and Section 4.02, the Issuer may elect to pay the Cash Conversion Amount, in whole or in part, in shares of its Common Stock.

(b) Notice of Redemption. In case the Issuer shall desire to exercise the right to redeem the Notes pursuant to this Section 4.01, it shall fix a date for redemption, and it, or at its request (which request must be delivered to the Trustee at least ten (10) Business Days prior to the date the Trustee is requested to give notice as described below unless a shorter period is agreed to by the Trustee) the Trustee in the name of and at the expense of the Issuer, shall mail or cause to be mailed a notice of such redemption at least fifteen (15) and not more than forty-five (45) days prior to the Redemption Date to the Holders of the Notes to be redeemed. In any case, failure to give notice to a Holder or any defect in the notice to the Holder of any Notes designated for redemption shall not affect the validity of the proceedings for the redemption of any other Note.

-58-

In addition to any information required by law, each such notice of redemption shall specify the following:

(i) The principal amount of Notes to be redeemed,

(ii) The date fixed for redemption;

(iii) The Redemption Price at which such Notes are to be redeemed (including the Cash Conversion Amount);

(iv) The place or places of payment, and that payment will be made upon presentation and surrender of the physical certificate or certificates representing such Notes;

(v) That the Redemption Price, will be paid as specified in said notice and whether the Cash Conversion Amount will be paid in cash or in shares of Common Stock or a combination of cash and shares of Common Stock, and if payable all or in part in Common Stock, the method of calculating the amount of Common Stock to be delivered on the applicable payment date;

(vi) That interest on such Notes ceased to accrue as of the Conversion Termination Date in accordance with this Indenture, and

(vii) The right to convert such Notes expired on the Conversion Termination Date in accordance with this Indenture.

On or prior to the date fixed for redemption specified in the notice of redemption given as provided in this Section 4.01(b), the Issuer will deposit with a bank or trust company having an office or agency in the Borough of Manhattan, The City of New York and having a combined capital and surplus of at least $50,000,000 (the “Deposit Bank”) an amount in cash sufficient to redeem on the date fixed for redemption all the Notes so called for redemption at the appropriate Redemption Price, together with the Cash Conversion Amount, if any; provided, that if such payment is made on the date fixed for redemption it must be received by the Deposit Bank by 11:00 a.m. New York City time, on such date. The Issuer shall be entitled to make any deposit of funds contemplated by this Section 4.01 under arrangements designed to permit such funds to generate interest or other income for the Issuer, and the Issuer shall be entitled to receive all interest and other income earned by any funds while such funds shall be deposited as contemplated by this Article Four, provided, that the Issuer shall maintain on deposit funds sufficient to satisfy all payments which the deposit arrangement shall have been established to satisfy. If the conditions precedent to the disbursement of any funds deposited by the Issuer pursuant to this Article Four shall not have been satisfied within two years after the establishment of such funds, then (i) such funds shall be returned to the Issuer upon its request, (ii) after such return, such funds shall be free of any trust which shall have been impressed upon them, (iii) the person entitled to the payment for which such funds shall have been originally intended shall have the right to look only to the Issuer for such payment, subject to applicable escheat laws, and (iv) the trustee which shall have held such funds shall be relieved of any responsibility for such funds upon the return of such funds to the Issuer.

-59-

If fewer than all the outstanding Notes are to be redeemed, Notes to be redeemed shall be selected by the Issuer from outstanding Notes not previously called for redemption by lot or pro rata (as near as may be) or by any other equitable method determined by the Issuer in its sole discretion.

(c) Payment of Redemption Price. If notice of redemption has been given as above provided, on and after the date fixed for redemption (unless the Issuer shall default in the payment of the Redemption Price, together with the Cash Conversion Amount), such Notes shall be deemed no longer outstanding and the Holders thereof shall have no right in respect of such Notes except the right to receive the Redemption Price thereof and the Cash Conversion Amount, if any.

If fewer than all Notes represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed Notes without cost to the Holder thereof.

SECTION 4.02.

Payment of Cash Conversion Amount in Shares of Common Stock.

Subject to the Conversion Cap, the Issuer may elect to pay the Cash Conversion Amount by delivery of shares of its Common Stock if and only if the conditions of Section 5.08(f) have been satisfied.

SECTION 4.03.

No other Redemption Rights.

No sinking fund, mandatory redemption or other similar provision shall apply to the Notes.

ARTICLE FIVE

CONVERSION

SECTION 5.01.

Right to Convert.

(a) Conversion. Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, at any time to convert the principal amount of its Notes, or any portion of such principal amount which is $1,000 or an integral multiple thereof, into shares of Common Stock; provided, that a Holder’s right to convert Notes shall terminate upon the occurrence of a Conversion Event as provided in Section 5.08.

Notwithstanding the foregoing, if a Holder of Notes has submitted Notes for purchase under Article Three, the Holder may convert such Notes only if the Holder first withdraws its Fundamental Change of Control Purchase Notice pursuant to Section 3.03(b).

(b) Conversion in Whole or in Part. Provisions of this Indenture that apply to conversion of all of a Note also apply to conversion of a portion of a Note.

-60-

SECTION 5.02.

Conversion Procedure.

(a) Conversion Notice. Each Note shall be convertible at the office of the Conversion Agent. In order to exercise the conversion right with respect to any interest in Global Notes, the Holder must complete the appropriate instruction form for conversion pursuant to the Depositary’s book-entry conversion program, furnish appropriate endorsements and transfer documents if required by the Issuer or the Trustee or Conversion Agent and any transfer taxes if required pursuant to Section 5.09. In order to exercise the conversion right with respect to any Physical Notes, the Holder of any such Notes to be converted, in whole or in part, shall:

(i) Complete and manually sign the conversion notice provided on the back of the Note (the “Conversion Notice”) or facsimile of the Conversion Notice;

(ii) Deliver such notice, which is irrevocable, and the Note to a Conversion Agent;

(iii) If required, furnish appropriate endorsements and transfer documents; and

(iv) If required, pay any transfer or similar tax.

The date on which the Holder satisfies all of the applicable requirements set forth above is the “Conversion Date.”

(b) Conversion Payment Date. As soon as practicable, but in any event within five (5) Business Days, or ten (10) Business Days in the case of the application of the Conversion Cap calculation pursuant to Section 5.13, immediately following the Conversion Date (the “Conversion Payment Date”), the Issuer shall issue and shall deliver to Holder at the office of the Conversion Agent, a certificate or certificates for the number of full shares of Common Stock issuable in respect of such conversion in accordance with the provisions of this Article Five including payment of the Accrued Interest in accordance with Section 5.03. In case any Notes of a denomination greater than $1,000 shall be surrendered for partial conversion, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of the Notes so surrendered, without charge to such Holder, new Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.

Each conversion shall be deemed to have been effected as to any such Notes (or portion thereof) on the date on which the requirements set forth above in Section 5.02(a) have been satisfied as to such Notes (or portion thereof); provided, however, that the person in whose name any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become as of the relevant Conversion Date the Holder of record of the shares of Common Stock represented thereby; provided, further, that in case of any such surrender on any date when the share transfer books of the Issuer shall be closed, the Person or Persons in whose name the certificate or certificates for such shares are to be issued shall be deemed to have become the record Holder thereof for all purposes on the next day on which such share transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Notes shall be surrendered. All shares of Common Stock delivered upon conversion of the Notes will, upon delivery, be duly authorized, validly issued and fully paid and non assessable, free and clear of all Liens and not subject to any preemptive rights.

-61-

(c) Trustee. Upon the conversion of an interest in Global Notes, the Trustee (or other Conversion Agent appointed by the Issuer) shall make a notation on such Global Notes as to the reduction in the principal amount represented thereby. The Issuer shall notify the Trustee in writing of any conversions of Notes effected through any Conversion Agent other than the Trustee.

(d) Legend. Each share certificate representing shares of Common Stock issued upon conversion of the Notes that are Restricted Notes shall bear the legend in substantially the form of Exhibit G hereto.

SECTION 5.03.

Settlement upon Conversion.

(a) Number of Shares. With respect to any conversion of Notes, the Issuer shall, subject to the provisions of this Article Five, deliver to converting Holders, in respect of each $1,000 principal amount of Notes being converted, a number of shares of Common Stock equal to the then Conversion Rate.

(b) Payment of Accrued Interest. Upon conversion, on the Conversion Payment Date, Holders shall receive separate cash payment for accrued and unpaid interest to, but excluding, the applicable Conversion Date (the “Accrued Interest”), unless such conversion occurs between a Record Date and the Interest Payment Date to which it relates, in which case the following shall apply. If Notes are converted after the Close of Business on a Record Date for the payment of interest but prior to the Open of Business on the related Interest Payment Date, Holders of such Notes at the Close of Business on such Record Date will receive in cash the interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion.

(c) Payment of Accrued Interest in Shares of Common Stock. The Issuer may elect to pay the Accrued Interest to any Holder by delivery of shares of its Common Stock if and only if the following conditions have been satisfied:

(i) The shares of Common Stock deliverable in payment of the Accrued Interest shall have a fair market value as of the Conversion Date of not less than the Accrued Interest;

For purposes of this Section 5.03(c), the fair market value of shares of Common Stock shall be determined by the Issuer and shall be equal to 95% of the average of the 10-day VWAP of the Common Stock for the 10 consecutive Trading Days immediately preceding the Conversion Date. The Issuer shall provide such Holder written notice prior to the Conversion Payment Date that it will pay all or a portion of the Accrued Interest in shares of Common Stock.

(ii) Payment of the Accrued Interest may not be made in Common Stock unless such stock is, or shall have been, approved for listing on the United States national securities exchange on which the Issuer’s Common Stock may then be listed prior to the Conversion Payment Date; provided that the foregoing restriction shall not apply if the Issuer’s Common Stock is not then so listed on a United States national securities exchange;

-62-

(iii) All shares of Common Stock which may be issued will be issued out of the Issuer’s authorized but unissued Common Stock and, will upon issue, be duly and validly issued and fully paid and non-assessable free of any preemptive rights; and

(iv) Payment of the Accrued Interest may not be made in Common Stock to any Person to the extent such payment would cause such Person to become a “beneficial owner” (as determined pursuant to Section 13 of the Exchange Act) of securities of the Issuer in excess of the Conversion Cap as provided in Section 5.13; provided, that the foregoing shall not prevent the Issuer from making a payment in Common Stock to any other Person.

If all the conditions set forth above are not satisfied, the Accrued Interest shall be paid by the Issuer only in cash.

(d) No Fractional Shares. The Issuer shall not issue fractional shares upon conversion of Notes. If multiple Notes shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion (and the number of fractional shares, if any, for which cash shall be delivered) shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered. If any fractional share would be issuable upon the conversion of any Notes, the Issuer shall make payment an amount in cash for the current market value of the fractional shares. The current market value of a fractional share shall be determined (calculated to the nearest 1/1000th of a share) by multiplying the Last Reported Sale Price of the Common Stock on the relevant Conversion Date by such fractional share and rounding the product to the nearest whole cent. The Issuer shall not issue fractional shares upon payment of Accrued Interest. If any fractional share would be issuable upon such payment, the Issuer shall make payment in an amount of such fractional share in cash.

(e) Satisfaction of Conversion. By delivery to the Holder of the full number of shares of Common Stock, together with any cash payment for fractional shares, issuable upon conversion, and amounts equal to the Accrued Interest, whether paid in cash or in shares of Common Stock in accordance with Section 5.03(c), the Issuer will be deemed to satisfy in full its obligation to pay the principal amount of the Notes and all accrued and unpaid interest to, but not including, the Conversion Date.

SECTION 5.04.

Adjustment of Conversion Rate.

The Conversion Rate shall be adjusted from time to time by the Issuer as follows:

(a) Dividends and Distributions. In case the Issuer shall, at any time or from time to time while any of the Notes are outstanding, pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, in each case, to all or substantially all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula:

-63-

CR1 = CR0 x OS1 / OS0

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution;

CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution;

OS0 = the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and

OS1 = the number of shares of Common Stock that would be outstanding immediately after the Open of Business on the Ex-Dividend Date and solely as a result of and giving effect to such dividend or distribution.

Any adjustment made pursuant to this Section 5.04(a) shall become effective immediately prior to Open of Business on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution that is the subject of this Section 5.04(a) is declared but not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Issuer publicly announces its decision not to make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.04(a), the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution shall not include shares of Common Stock held in treasury. The Issuer will not pay any dividend or make any distribution on Common Stock held in treasury.

(b) Subdivisions and Combinations. In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock or combined into a smaller number of shares of Common Stock (in each case, other than in connection with a Fundamental Change of Control), the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x OS1 / OS0

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the effective date of such subdivision or combination;

CR1 = the Conversion Rate in effect immediately after the Open of Business on the effective date of such subdivision or combination;

-64-

OS0 = the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the effective date of such subdivision or combination; and

OS1 = the number of shares of Common Stock that would be outstanding immediately after the Open of Business on the effective date of such subdivision or combination, and solely as a result of and giving effect to, such subdivision or combination.

Any adjustment made pursuant to this Section 5.04(b) shall become effective immediately prior to Open of Business on the effective date of such subdivision or combination. If any subdivision or combination that is the subject of this Section 5.04(b) is declared but not so made, the Conversion Rate shall be readjusted, effective as of the date the Issuer publicly announces its decision not to effect such subdivision or combination to the Conversion Rate that would then be in effect if such subdivision or combination had not been declared. For purposes of this Section 5.04(b), the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the effective date of such subdivision or combination for such subdivision or combination shall not include shares of Common Stock held in treasury.

(c) Rights, Warrants or Options. In case the Issuer shall issue rights (other than rights issued pursuant to a stockholder rights plan, and then in accordance with Section 5.04(n)), warrants or options to all or substantially all holders of Common Stock entitling them to purchase, for a period expiring within 60 calendar days of the date of issuance, Common Stock at an aggregate price per share less than the average of the Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the time of announcement of the distribution, the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x (OS0 + X)/ (OS0 +Y)

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance;

CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such issuance;

OS0 = the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance;

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

Y = the number of shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights, warrants or options divided by (y) the average of the Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights, warrants or options.

-65-

Any adjustment made pursuant to this Section 5.04(c) shall become effective immediately prior to Open of Business on the Ex-Dividend Date for such issuance. In the event that such rights, warrants or options described in this Section 5.04(c) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Issuer publicly announces its decision not to issue such rights, warrants or options to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights, warrants or options are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights, warrants or options upon the exercise of such rights, warrants or options the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, warrants or options been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In determining the aggregate price payable to exercise such rights, warrants or options there shall be taken into account any consideration received by the Issuer for such rights, warrants or options and the value of such consideration (if other than cash, to be determined in good faith by the Issuer’s Board of Directors). For purposes of this Section 5.04(c), the number of shares of Common Stock outstanding at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance shall not include shares of Common Stock held in treasury. The Issuer will not issue any rights, warrants or options in respect of shares of Common Stock held in treasury.

(d) Other Distributions; Public Spin-Off. In case the Issuer shall, by dividend or otherwise, distribute to all or substantially all holders of its outstanding Common Stock, evidences of the Issuer’s indebtedness or assets, including securities but excluding:

(i) Any dividends or distributions referred to in Section 5.04(a) above;

(ii) Shares delivered in connection with subdivisions of Common Stock referred to in Section 5.04(b) above;

(iii) Any rights, warrants or options referred to in Section 5.04(c) above;

(iv) Any dividends or distributions referred to in Section 5.04(e) below; and, or

(v) Any Public Spin-Offs to which the provisions set forth below in this Section 5.04(d) applies;

(any of the foregoing hereinafter in this Section 5.04(d) called the “Distributed Assets”), the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x (SP0 / (SP0 – FMV))

-66-

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution;

CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution;

SP0 = the average of the Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

FMV = the Fair Market Value (as determined in good faith by the Issuer’s Board of Directors) on the Ex-Dividend Date for such distribution of the Distributed Assets so distributed, expressed as an amount per share of Common Stock.

If the transaction that gives rise to an adjustment pursuant to this Section 5.04(d) is, however, one pursuant to which the payment of a dividend or other distribution on Common Stock consists of shares of Capital Stock of any class or series of, or similar equity interests in, a Subsidiary or other business unit of the Issuer (i.e., a “spin-off”) that are, or when issued, will be, traded or listed on The Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or any other United States national securities exchange or market (a “Public Spin-Off”), the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x (FMV0 + MP0) / MP0

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution;

CR1 = the Conversion Rate in effect on the Ex-Dividend Date for such distribution;

FMV0 = the average of the Last Reported Sale Prices of the Distributed Assets applicable to one share of Common Stock during the 10 consecutive Trading Day period commencing on and including the effective date of the Public Spin-Off (the “Public Spin-Off Valuation Period”); and

MP0 = the average of the Last Reported Sale Prices of Common Stock during the Public Spin-Off Valuation Period.

-67-

Any adjustment made pursuant to this Section 5.04(d) shall become effective immediately prior to Open of Business on the 10th Trading Day from and including the date of the spin-off; provided that in respect of any conversion within 10 Trading Days following the effective date of a spin-off, references in this paragraph (d) 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 Conversion Date with respect to the applicable Conversion Rate. If any dividend or distribution of the type described in this Section 5.04(d) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Issuer publicly announces its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If an adjustment to the Conversion Rate is required pursuant to this Section 5.04(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 5.04(d).

No adjustment to the Conversion Rate shall be made pursuant to this Section 5.04(d) in respect of rights, warrants or options distributed or deemed distributed on any Trigger Event to the extent that such rights, warrants or options are actually distributed or reserved by the Issuer for distribution to Holders of Notes upon conversion by such Holders of Notes to Common Stock.

-68-

(e) Cash Distributions. In case the Issuer shall pay a dividend or otherwise distribute to all or substantially all holders of its Common Stock a dividend or other distribution of exclusively cash excluding any dividend or distribution in connection with the liquidation, dissolution or winding up of the Issuer, whether voluntary or involuntary, the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x (SP0 / (SP0 – C))

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution;

CR1 = the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such distribution;

C = the amount in cash per share of Common Stock the Issuer distributes to holders of Common Stock.

Any adjustment made pursuant to this Section 5.04(e) shall become effective immediately prior to Open of Business on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 5.04(e) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Issuer publicly announces its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

(f) Tender Offers and Exchange Offers. In case of purchases of Common Stock pursuant to a tender offer or exchange offer made by the Issuer or any Subsidiary of the Issuer for all or any portion of Common Stock, to the extent that the Fair Market Value of cash and any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula:

CR1 = CR0 x (AC + (SP1 x OS1)) / (SP1 x OS0)

Where

CR0 = the Conversion Rate in effect at Close of Business on the Trading Day immediately following the Expiration Date;

-69-

CR1 = the Conversion Rate in effect immediately after the Open of Business on the second Trading Day immediately following the Expiration Date;

AC = the Fair Market Value (as determined in good faith by the Issuer’s Board of Directors), on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for Common Stock validly tendered or exchanged and not withdrawn as of the Expiration Date;

OS1 = the number of shares of Common Stock outstanding immediately after the last time tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Time”) (after giving effect to such tender or exchange offer);

OS0 = the number of shares of Common Stock outstanding immediately before the Expiration Time (prior to giving effect to such tender or exchange offer); and

SP1 = the average of the Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period commencing on, and including, the Trading Day immediately after the Expiration Date.

Any adjustment pursuant to this Section 5.04(f) shall become effective immediately following the Open of Business on the second Trading Day immediately following the Expiration Date. If the Issuer or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer, but the Issuer or such Subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this Section 5.04(f) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 5.04(f). If an adjustment to the Conversion Rate is required pursuant to this Section 5.04(f) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 5.04(f).

(g) No Adjustment. In cases where the Fair Market Value of Distributed Assets and cash, other than with respect to a Public Spin-Off, as to which Section 5.04(d) and 5.04(e) apply, applicable to one share of Common Stock, distributed to holders of Common Stock:

(i) Equals or exceeds the average of Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, or

(ii) The average of the Last Reported Sale Prices of Common Stock during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution exceeds the Fair Market Value of such Distributed Assets or cash so distributed by less than $1.00,

-70-

rather than being entitled to an adjustment in the Conversion Rate, the Holder of a Note will be entitled to receive upon conversion, in addition to Common Stock, the Distributed Assets or cash, as applicable, that such Holder would have been entitled to receive if such Holder had been a record holder of Common Stock (on an as converted basis at the then applicable Conversion Rate) on the Record Date for determining the stockholders entitled to receive the distribution.

(h) Increases to Conversion Rate. In addition to those Conversion Rate adjustments required by Sections 5.04(a), 5.04(b), 5.04(c), 5.04(d), 5.04(e) and 5.04(f), to the extent permitted by applicable law and subject to the applicable rules of any stock exchange on which the Issuer’s Common Stock is listed at the relevant time, the Issuer from time to time may increase the Conversion Rate by a specified amount for a period of at least 20 Business Days, if the increase is irrevocable during the period and the Issuer’s Board of Directors shall have made a determination that such increase would be in the best interest of the Issuer, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Issuer shall mail to Holders of record of the Notes a notice of increase, which notice will be given at least 15 calendar days prior to the effective date of any such increase, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

To the extent permitted by applicable law and subject to the applicable rules of any stock exchange on which the Issuer’s Common Stock is listed at the relevant time, the Issuer may also (but is not required to) to make such increases to the Conversion Rate, in addition to those required by Sections 5.04(a), 5.04(b), 5.04(c), 5.04(d), 5.04(e) and 5.04(f), as the Issuer’s Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of Common Stock (or rights to acquire Common Stock) or from any event treated as such for income tax purposes.

The Issuer shall not take any voluntary action to increase the Conversion Rate of the Notes pursuant to this Section 5.04(h) without complying, if applicable, with the shareholder approval rules of any stock exchange on which the Issuer’s Common Stock is listed at the relevant time.

(i) Calculations; No Further Adjustments. All calculations under this Article Five shall be made by the Issuer and not by the Trustee or Conversion Agent, and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000th) of a share of Common Stock, as the case may be. The Conversion Rate shall not be adjusted except as specifically set forth in this Section 5.04. Without limiting the foregoing, the Conversion Rate shall not be adjusted for (A) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Issuer’s securities or the investment of additional optional amounts in shares of Common Stock under any plan; (B) the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any of the Issuer’s present or future employee, director, trustee or consultant benefit plans, employee agreements or arrangements or programs including the Management Incentive Plan; (C) a change in the par value of Common Stock or (D) the issuance of shares of Common Stock or any securities convertible into or exchangeable or exercisable for shares of the Issuer’s Common Stock or rights to purchase shares of Common Stock or such convertible, exchangeable or exercisable securities or the payment of cash upon repurchase or redemption thereof, except as otherwise provided in this Section 5.04.

-71-

(j) Announcement of Adjustments. Whenever the Conversion Rate is adjusted as herein provided, the Issuer will publicly announce through a reputable national newswire in the United States the relevant information, file such press release with the SEC on Form 8-K and make this information available on the Issuer’s website. In addition, the Issuer shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee and the Conversion Agent (provided the Conversion Agent is not the Issuer) shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which each had knowledge is still in effect. Promptly after delivery of such certificate, the Issuer shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment became effective and shall mail such notice of such adjustment of the Conversion Rate to each Holder of each Note at its last address appearing on the register of the Holders, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

(k) Calculation of Shares Outstanding; Treasury Stock. For purposes of this Section 5.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Issuer but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Issuer will not pay any dividend or make any distribution on Common Stock held in the treasury of the Issuer.

(l) Participation of Holders in Distribution. Notwithstanding any of the foregoing clauses in this Section 5.04, the applicable Conversion Rate will not be adjusted pursuant to this Section 5.04 if the Holders of the Notes are permitted to participate (as a result of holding the Notes and contemporaneously with holders of Common Stock) in any of the transactions that would otherwise give rise to adjustment pursuant to this Section 5.04 as if such Holders of the Notes held a number of shares of Common Stock equal to the applicable Conversion Rate one Business Day prior to the effective date of the applicable transaction, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes.

(m) Limitation or Adjustment. In no event shall the Conversion Price be reduced below $0.01, subject to adjustment for share splits and combination and similar events.

(n) Rights Plan. If the Issuer has in effect a rights plan while any Notes remain outstanding, Holders of Notes shall receive, upon a conversion of such Notes, in addition to such shares of Common Stock, rights under the Issuer’s stockholder rights plan unless, prior to such conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from Common Stock. If the rights provided for in any rights plan that the Issuer’s Board of Directors may adopt have separated from the Common Stock in accordance with the provisions of the rights plan so that Holders of Notes would not be entitled to receive any rights in respect of Common Stock that the Issuer delivers upon conversion of Notes, the Issuer shall adjust the conversion rate at the time of separation as if the Issuer had distributed to all holders of the Issuer’s Common Stock, shares of Capital Stock, evidences of indebtedness or other assets or property in accordance with Section 5.04(d), subject to readjustment upon the subsequent expiration, termination or redemption of such rights.

-72-

SECTION 5.05.

Effect of Reclassification, Consolidation, Merger or Sale.

If any of the following events occur:

(a) Any recapitalization, reclassification or change of the outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or

(b) Any consolidation, merger or combination of the Issuer with or into another Person, or any sale, lease, transfer, conveyance or other disposition of all or substantially all of the Issuer’s assets and those of the Issuer’s Subsidiaries taken as a whole to any other Person or Persons (other than to one or more of its subsidiaries), in each case, as a result of which holders of all or substantially all of the Common Stock receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for such Common Stock, the Issuer or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture, if such supplemental indenture is then required to so comply) providing that from and after the effective date of such transaction each such Note shall, without the consent of any Holders of Notes, become convertible into, in lieu of the Common Stock otherwise deliverable, the same type (in the same proportion) of the consideration that the holders of Common Stock received in such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition (such consideration, the “Reference Property”). In all cases, the conditions relating to conversion of Notes specified herein (including in Sections 5.01 and 5.02, in each case, to the extent applicable, and Section 5.04) (modified as appropriate in the good faith judgment of the Issuer’s Board of Directors to apply properly to the Reference Property in lieu of Common Stock), the provisions of Section 5.03 relating to the Issuer’s satisfaction of the conversion obligation upon conversion of Notes and the provisions of Section 5.13 relating to the Conversion Cap shall continue to apply following such transaction. If such transaction also constitutes a Fundamental Change of Control, a Holder converting Notes in connection with such Fundamental Change of Control will be entitled to receive Additional Shares and the Make Whole Payment in accordance with Section 5.07 in the Fundamental Change of Control. If such transaction 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 shall be deemed to be the kind and amount of consideration elected to be received by a majority of shares of Common Stock voted for such an election (if electing between two types of consideration) or a plurality of shares of Common Stock voted for such an election (if electing between more than two types of consideration), as the case may be. The Issuer may not become a party to any such transaction unless its terms are consistent with the foregoing. Such supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Five, as determined in good faith by the Issuer or successor or purchasing corporation.

-73-

If, in the case of any such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, the stock or other securities and assets received thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Issuer’s Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the conversion rights set forth in this Article Five.

The Issuer shall cause notice of the execution of such supplemental indenture to be mailed or delivered to each Holder, at the address of such Holder as it appears on the register of the Notes maintained by the Registrar, within 20 calendar days after execution thereof. Simultaneously with providing such notice, the Issuer shall announce through a reputable national newswire in the United States the relevant information and make this information available on the Issuer’s website. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

The foregoing provisions of this Section 5.05 shall similarly apply to successive reclassifications, changes, consolidations, mergers, sales, leases, transfers, conveyances or other dispositions.

If this Section 5.05 applies to any event or occurrence, Section 5.04 shall not apply.

None of the foregoing provisions shall affect the right of a Holder of Notes to convert such Holder’s Notes into shares of Common Stock at any time, subject to Section 5.08.

SECTION 5.06.

Adjustments of Prices.

Whenever any provision of this Indenture requires a calculation of the Last Reported Sale Prices over a span of multiple days, the Issuer will make appropriate adjustments determined by the Issuer or its agents to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period from which such prices are to be calculated. Such adjustments will be effective as of the effective date of the adjustment to the Conversion Rate.

SECTION 5.07.

Adjustment Upon Fundamental Change of Control.

(a) In connection with any Fundamental Change of Control, the Issuer shall provide to the Holders of the Notes and the Trustee the notice in respect of such Fundamental Change of Control as contemplated by Section 3.01(a).

-74-

(b) If and only to the extent a Holder converts its Notes in connection with a Fundamental Change of Control, the Issuer will (i) increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”) as described below and (ii) pay to such Holder the Make Whole Payment (as defined in Section 5.07(f)). The Issuer shall use it best efforts to obtain stockholder approval if necessary in connection with the issuance of Additional Shares as promptly as practicable. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Fundamental Change of Control if the notice of conversion of the Notes is received by the Conversion Agent during the period from the Effective Date of the Fundamental Change of Control to Close of Business on the Business Day immediately preceding the related Fundamental Change of Control Purchase Date.

(c) The number of Additional Shares, if any, by which the Conversion Rate will be increased will be determined by reference to the table attached as Schedule I hereto, based on the date on which the Fundamental Change of Control becomes effective (the “Effective Date”) and the price (the “Share Price”) paid (or deemed paid) per share of Common Stock in the Fundamental Change of Control. If the Holders of the Common Stock receive only cash in a Fundamental Change of Control, the Share Price will be the cash amount paid per share of Common Stock. Otherwise, the Share Price shall be the 10-day VWAP preceding the Effective Date of such Fundamental Change of Control.

(d) The Share Prices set forth in the column headings of the table in Schedule I hereto shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted Share Prices shall equal the Share Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the share price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in such table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 5.04.

(e) The exact Share Prices and Effective Dates may not be set forth in the table in Schedule I, in which case:

(i) If the Share Price is between two Share Price amounts in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Price amounts and the earlier and later Effective Dates, as applicable, based on a 365-day year.

(ii) If the Share Price is greater than $28.00 per share (subject to adjustment as set forth in clause (d) of this Section 5.07), no Additional Shares will be added to the Conversion Rate.

(iii) If the Share Price is less than $6.21 per share (subject to adjustment as set forth in clause (d) of this Section 5.07), no Additional Shares will be added to the Conversion Rate.

-75-

Notwithstanding the foregoing, in no event shall the total number of Additional Shares added to the Conversion Rate exceed 65.793 per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 5.04 as set forth in clause (c) of this Section 5.07.

(f) In connection with a Fundamental Change of Control, and if and only to the extent a Holder converts its Notes in connection with such Fundamental Change of Control, in addition to the payment of the Additional Shares, the Issuer will be required to make an additional payment to such Holders in cash (the “Make Whole Payment”), which Make Whole Payment shall equal the total amount of interest that would have accrued and become payable on such Notes from, but excluding, the Effective Date through and including August 31, 2013 (but including any accrued and unpaid interest on the Notes from the Issue Date through and including the Effective Date). The Make Whole Payment shall be made on the applicable Conversion Payment Date.

(g) A Purchaser Party shall not be entitled to receive Additional Shares or the Make Whole Payment upon a Fundamental Change of Control, notwithstanding any conversion of such Purchaser Party’s Notes, if such Fundamental Change of Control (i) is a merger, consolidation or sale with or into such Purchaser Party, or any member of any “group” of which such Purchaser Party is a member or any of their respective Affiliates; (ii) is a transaction specified in clause (ii) of the definition of “Fundamental Change of Control” if such Purchaser Party or any of its Affiliates is a “person” or a member of a “group” for purposes of such definition or (iii) if the nominees of any such Purchaser Party, or any member of any “group” of which such Purchaser Party is a member or any of their respective Affiliates constitutes one or more of new members of the Board of Directors effecting such Fundamental Change of Control.

For purposes of this Section 5.08(g), “group” has the meaning it has in Sections 13(d) and 14(d) of the Exchange Act and “person” is used with the same meaning as that used within Rule 13d-3 under the Exchange Act, in each case whether or not applicable.

(h) The Issuer will notify Holders, the Trustee and the Conversion Agent of the anticipated Effective Date of any Fundamental Change of Control on or prior to the later of (i) 10 calendar days prior to such Effective Date and (ii) 10 calendar days following the date on which the Issuer becomes aware (or should have become aware) of such anticipated Effective Date. The Issuer shall publicly announce such information through a reputable national newswire in the United States, file such press release with the SEC on Form 8-K and shall make such information available on the Issuer’s website.

(i) Notwithstanding Section 5.07(f), the Issuer may elect to pay the Make Whole Payment in shares of Common Stock if and only if the following conditions shall have been satisfied:

(i) The shares of Common Stock deliverable in payment of the Make Whole Payment shall have a fair market value as of the Conversion Date of not less than the Make Whole Payment.

-76-

For purposes of this Section 5.07(i), the fair market value of shares of Common Stock shall be determined by the Issuer and shall be equal to 95% of the average of the 10-day VWAP of the Common Stock for the 10 consecutive Trading Days immediately preceding the Effective Date; provided, that if the Fundamental Change of Control is a merger or consolidation pursuant to clause (i) of the definition of Fundamental Change of Control and all of the Issuer’s Common Stock is exchanged for common stock of the acquiror (or successor entity) in such Fundamental Change of Control, the number of shares of Issuer Common Stock issuable hereunder shall be determined by dividing the Make Whole Payment by the implied price per share paid for the Issuer Common Stock in such Fundamental Change of Control, with such resulting shares of Issuer Common Stock being treated in the same manner as all other shares of Issuer Common Stock in such Fundamental Change of Control (e.g., exchanged for shares of Common Stock or other property of such acquiror (or successor) in the same proportion as Issuer Common Stock in such Fundamental Change of Control);

(ii) Payment of the Make Whole Payment may not be made in Common Stock unless such stock is, or shall have been, approved for listing on a United States national securities exchange on which the Issuer’s Common Stock may then be listed prior to the date of payment of the Make Whole Payment; provided that the foregoing restriction shall not apply if the Issuer’s Common Stock is not then so listed on a United States national securities exchange;

(iii) All shares of Common Stock which may be issued will be issued out of authorized but unissued common stock and will upon issue, be duly issued, fully paid and non-assessable, free and clear of all preemptive rights; and

(iv) Payment of the Make Whole Payment may not be made in Common Stock (or securities of the acquiror (or successor)) to any Person to the extent such payment would cause such Person to become a “beneficial owner” (as determined pursuant to Section 13 of the Exchange Act) of securities of the Issuer in excess of the Conversion Cap as provided in Section 5.13; provided, that the foregoing shall not prevent the Issuer from making a payment in Common Stock to any other Person.

In connection with the payment of the Make Whole Payment in shares of Common Stock, no fractional shares or scrip representing fractional shares shall be issued upon conversion of the Notes. If any fractional shares or scrip would be so issuable, the Issuer shall make a payment of the remaining Make Whole Payment in cash.

If all the conditions set forth above are not satisfied, the Make Whole Payment shall be paid by the Issuer only in cash.

-77-

SECTION 5.08.

Conversion Event; Termination of Conversion Rights.

(a) Conversion Event. If the Last Reported Sale Price of the Common Stock for at least 20 Trading Days in a period of 30 consecutive Trading Days equals or exceeds 150% of the Conversion Price (a “Conversion Event”), the Issuer may, at its option, deliver or cause to be delivered to all Holders of the Notes at their address shown in the register for the Notes, a notice as set forth below (the “Conversion Event Notice”) with respect to such Conversion Event at any time within 20 Business Days of such Conversion Event. The Issuer shall also deliver a copy of the Conversion Event Notice to the Trustee, the Conversion Agent and the Paying Agent at such time as is mailed to Holders of Notes. Simultaneously with providing such Conversion Event Notice, the Issuer shall publicly announce the relevant information through a reputable national newswire in the United States, file such press release with the SEC on Form 8-K and make such information available on the Issuer’s website.

No failure of the Issuer to deliver the foregoing notices and no defect therein shall limit a Holders rights hereunder or affect the validity of the proceedings pursuant to this Section 5.08.

(b) Termination of Conversion Rights. Except as set forth by a Holder in an Election Notice (as defined below), a Holder’s right to convert Notes shall automatically terminate, with no further action of the Issuer or any Holder, immediately prior to the Open of Business on the date that is 46 days following the date of the Conversion Event Notice (the “Conversion Termination Date”). A Holder may convert its Notes at any time in connection with a Conversion Event during the 45-day period from the date of the Conversion Event Notice to the Close of Business on the Business Day immediately preceding the Conversion Termination Date. A conversion of Notes shall be deemed for these purposes to be in connection with a Conversion Event if notice of conversion is received by the Conversion Agent during the period from the date of the Conversion Event Notice to the Close of Business on the Business Day immediately preceding the Conversion Termination Date.

(c) Notes Not Converted due to Conversion Cap; Election Notice. Any Notes not converted prior to the Conversion Termination Date as a result of the Conversion Cap shall be, at such Holder’s election, upon written notice to the Issuer delivered by such Holder (an “Election Notice”), converted into shares of Common Stock of the Issuer on a date (or dates) prior to the date that is 180 days following the Conversion Termination Date (such date or dates as specified in the Election Notice, the “Cap Conversion Dates”). A Holder shall deliver an Election Notice to the Issuer so specifying its election to convert Notes that could not have otherwise been converted due to the Conversion Cap at any time prior to the Conversion Termination Date. An Election Notice shall be in the form attached as Exhibit J.

(d) Conversion Event Notice. The Conversion Event Notice delivered by the Issuer shall be in the form set forth on Exhibit H hereto and shall state the amount of the Cash Conversion Amount and whether the payment of the Cash Conversion Amount shall be made in cash, shares of Common Stock or a combination of cash and shares of Common Stock and the method of calculating the Cash Conversion Amount payment.

In addition to any other information provided by the Issuer, a Conversion Event Notice shall:

(i) State the events constituting the Conversion Event and the Conversion Rate then applicable to the Notes;

-78-

(ii) State that the right to convert Notes shall terminate immediately prior to the Open of Business on the date that is 46 days following the date of Conversion Event Notice;

(iii) State that holders may convert Notes up to the Conversion Cap at any time prior to the Close of Business on the Business Day immediately preceding the Conversion Termination Date;

(iv) State that any Holders who cannot convert the full amount of their Notes prior to the Conversion Termination Date due to the Conversion Cap may send an Election Notice to the Issuer in the form attached as an exhibit to such conversion Event Notice (which shall be in the form of Exhibit J hereof) and may elect to convert such Notes on any date or dates prior to the date that is 180 days following the Conversion Termination Date.

(v) State that except for Notes specified for conversion pursuant to an Election Notice, any Notes not otherwise converted prior to the Conversion Termination Date may be redeemed at the option of the Issuer at any time in accordance with Article Four and shall also state the Redemption Price therefor;

(vi) State that interest shall cease to accrue on all Notes as of the Conversion Termination Date;

(vii) State that certain covenants (to be specified in such Conversion Event Notice) contained in the Indenture shall cease to have any further force or effect as of the Conversion Termination Date and shall state such other provisions of this Indenture that shall no longer apply, including release of Collateral securing the Notes in accordance with Section 12.09; and

(viii) State the amount of the Cash Conversion Amount, if any, payable on all Notes as a result of the Conversion Event and the dates which such Cash Conversion Amount may be paid.

(e) Cash Conversion Amount. If a Conversion Event occurs on or prior to August 31, 2012, in addition to shares of Common Stock issuable upon conversion of the Notes prior to the Conversion Termination Date, or amounts received upon redemption of the Notes or upon maturity thereof, the Issuer will be required to make an additional payment in cash (the “Cash Conversion Amount”) in respect of the Notes. The Cash Conversion Amount shall be equal to the lesser of: (i) the aggregate amount of interest payable from (and including) the Conversion Termination Date to and including August 31, 2012 and (ii) an aggregate amount equal to 15 months of interest on the Notes (in each case including any accrued and unpaid interest on the Notes from the Issue Date to and including the Conversion Termination Date (or applicable Conversion Date, if earlier).

(f) Payment of Cash Conversion Amount in Shares of Common Stock. Notwithstanding Section 5.08(e), the Issuer may elect to pay the Cash Conversion Amount by delivery of shares of its Common Stock if and only if the following conditions have been satisfied:

-79-

(i) The shares of Common Stock deliverable in payment of the Cash Conversion Amount shall have a fair market value as of the Conversion Termination Date of not less than the Cash Conversion Amount.

For purposes of this Section 5.08(f), the fair market value of shares of Common Stock shall be determined by the Issuer and shall be equal to 95% of the average of the 10-day VWAP of the Common Stock for the 10 consecutive Trading Days immediately preceding the Conversion Termination Date. The Issuer shall provide such Holder written notice prior to the applicable Cash Conversion Payment Date (as defined below) that it will pay all or a portion of the Cash Conversion Amount in shares of Common Stock.

(ii) Payment of the Cash Conversion Amount may not be made in Common Stock unless such stock is, or shall have been, approved for listing on the United States national securities exchange on which the Issuer’s Common Stock may then be listed prior to the Conversion Payment Date; provided that the foregoing restriction shall not apply if the Issuer’s Common Stock is then not so listed on a United States national securities exchange;

(iv) Payment of the Cash Conversion Amount may not be made to any Holder in Common Stock to the extent such payment would cause such Person to become a “beneficial owner” (as determined pursuant to Section 13 of the Exchange Act) of securities of the Issuer in excess of the Conversion Cap as provided in Section 5.13; provided, that the foregoing shall not prevent the Issuer from making a payment in Common Stock to any other Person.

In connection with the payment of the Cash Conversion Amount in shares of Common Stock, no fractional shares or scrip representing fractional shares shall be issued upon conversion of the Notes. If any fractional shares or scrip otherwise would be so issuable, the Issuer shall make a payment of the remaining Cash Conversion Amount in cash.

If all of the conditions set forth in this Section 5.08(f) are not satisfied in accordance with the terms thereof, the Cash Conversion Amount shall be paid by the Issuer only in cash.

(g) Effect of Conversion Termination Date. On and after the Conversion Termination Date, interest shall cease to accrue on the Notes. In addition, and after the Conversion Termination Date, the following provisions of this Indenture shall cease to have any further force and effect with respect to any Notes not converted in connection with a Conversion Event (whether prior to the Conversion Termination Date or pursuant to an Election Notice) (the “Remaining Notes”):

-80-

(i) Article Three (Purchase at Option of Holders upon a Fundamental Change of Control)

(ii) Article Five (Conversion (other than this Section 5.08, and paragraph five of Section 5.10, Section 5.13, Section 5.14 and Section 5.16)

(iii) Section 6.04 (Payment of Taxes)

(iv) Section 6.05 (Maintenance of Properties)

(v) Section 6.06 (Compliance Certificate; Notice of Default)

(vi) Section 6.07 (Waiver of Stay, Extension or Usury Laws)

(vii) Section 6.08 (Limitations on Additional Indebtedness)

(viii) Section 6.09 (Limitations on Restricted Payments)

(ix) Section 6.10 (Limitations on Liens)

(x) Section 6.11 (Limitations on Asset Sales)

(xi) Section 6.12 (Limitations on Transactions with Affiliates)

(xii) Section 6.13 (Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries)

(xiii) Section 6.14 (Additional Note Guarantees)

(xiv) Section 6.15 (Further Assurances)

(xv) Section 6.16 (Reports to Holders)

(xvi) Section 6.17 (Limitations on Designation of Unrestricted Subsidiaries)

(xvii) Section 6.18 (Limitation on the Issuance or Sale of Equity Interests of Restricted Subsidiaries)

(xviii) Section 6.19 (Information Regarding Collateral)

(xix) Section 6.20 (Impairment of Security Interest)

(xx) Section 6.21 (Insurance)

(xxi) Article Seven (Successor Corporation)

(xxii) Section 8.01 (Events of Default) (other than clauses (i), (ii), (vi), (xi) and (xii) thereof).

-81-

Trust Indenture Act		Indenture
Section		Section
310	(a)(1)	9.10
	(a)(2)	9.10
	(a)(3)	N.A.
	(a)(4)	N.A.
	(a)(5)	9.08; 9.10
	(b)	9.08; 9.10; 14.02
	(c)	N.A.
311	(a)	9.11
	(b)	9.11
	(c)	N.A.
312	(a)	2.05
	(b)	14.03
	(c)	14.03
313	(a)	9.06
	(b)(1)	9.06; 12.02
	(b)(2)	9.06; 12.02
	(c)	9.06; 14.02
	(d)	9.06
314	(a)	6.06; 6.18; 14.02
	(b)	N.A.
	(c)(1)	9.02; 14.04; 14.05
	(c)(2)	9.02; 14.04; 14.05
	(c)(3)	N.A.
	(d)	12.02; 12.03; 12.05
	(e)	N.A.
	(f)	N.A.
315	(a)	9.01(b); 9.02(a)
	(b)	9.05; 14.02
	(c)	9.01
	(d)	8.05; 9.01(c)
	(e)	8.11
316	(a)(last sentence)	2.09
	(a)(1)(A)	8.05
	(a)(1)(B)	8.04
	(a)(2)	11.02
	(b)	8.07
	(c)	11.05
317	(a)(1)	8.08
	(a)(2)	8.09
	(b)	2.04
318	(a)	14.01
	(c)	14.01

			Page

ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE			1
	SECTION 1.01.	Definitions	1
	SECTION 1.02.	Other Definitions	37
	SECTION 1.03.	Incorporation by Reference of Trust Indenture Act	39
	SECTION 1.04.	Rules of Construction	39

ARTICLE TWO THE NOTES			40
	SECTION 2.01.	Form and Dating	40
	SECTION 2.02.	Execution, Authentication and Denomination	41
	SECTION 2.03.	Registrar and Paying Agent	42
	SECTION 2.04.	Paying Agent to Hold Assets in Trust	43
	SECTION 2.05.	Holder Lists	43
	SECTION 2.06.	Transfer and Exchange	43
	SECTION 2.07.	Replacement Notes	44
	SECTION 2.08.	Outstanding Notes	44
	SECTION 2.09.	Treasury Notes	45
	SECTION 2.10.	Temporary Notes	45
	SECTION 2.11.	Cancellation	45
	SECTION 2.12.	Defaulted Interest	45
	SECTION 2.13.	Cusip Numbers	46
	SECTION 2.14.	Deposit of Moneys	46
	SECTION 2.15.	Book-Entry Provisions for Global Notes	46
	SECTION 2.16.	Special Transfer and Exchange Provisions	48

ARTICLE THREE PURCHASE AT OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE OF CONTROL			53
	SECTION 3.01.	Purchase at the Option of Holders upon a Fundamental Change of Control	53
	SECTION 3.02.	Fundamental Change of Control Issuer Notice	54
	SECTION 3.03.	Effect of Fundamental Change of Control Purchase Notice; Withdrawal	56
	SECTION 3.04.	Deposit of Fundamental Change of Control Purchase Price	57
	SECTION 3.05.	Notes Purchased in Whole or in Part; Repayment to the Issuer	58

ARTICLE FOUR REDEMPTION			58
	SECTION 4.01.	Redemption at the Option of the Issuer	58
	SECTION 4.02.	Payment of Cash Conversion Amount in Shares of Common Stock	60
	SECTION 4.03.	No other Redemption Rights	60

ARTICLE FIVE CONVERSION			60
	SECTION 5.01.	Right to Convert	60
	SECTION 5.02.	Conversion Procedure	61

	SECTION 5.03.	Settlement upon Conversion	62
	SECTION 5.04.	Adjustment of Conversion Rate	63
	SECTION 5.05.	Effect of Reclassification, Consolidation, Merger or Sale	73
	SECTION 5.06.	Adjustments of Prices	74
	SECTION 5.07.	Adjustment Upon Fundamental Change of Control	74
	SECTION 5.08.	Conversion Event; Termination of Conversion Rights	78
	SECTION 5.09.	Taxes on Shares Issued	82
	SECTION 5.10.	Reservation of Shares; Shares to be Fully Paid; Compliance with Governmental Requirements	82
	SECTION 5.11.	Responsibility of Trustee	83
	SECTION 5.12.	Notice to Holders Prior to Certain Actions	84
	SECTION 5.13.	Conversion Cap	85
	SECTION 5.14.	General Provisions Applicable to Conversion	85

ARTICLE SIX COVENANTS			86
	SECTION 6.01.	Payment of Notes	86
	SECTION 6.02.	Maintenance of Office or Agency	86
	SECTION 6.03.	Corporate Existence	86
	SECTION 6.04.	Payment of Taxes	87
	SECTION 6.05.	Maintenance of Properties	87
	SECTION 6.06.	Compliance Certificate; Notice of Default	87
	SECTION 6.07.	Waiver of Stay, Extension or Usury Laws	88
	SECTION 6.08.	Limitations on Additional Indebtedness	88
	SECTION 6.09.	Limitations on Restricted Payments	92
	SECTION 6.10.	Limitations on Liens	95
	SECTION 6.11.	Limitations on Asset Sales	95
	SECTION 6.12.	Limitations on Transactions with Affiliates	99
	SECTION 6.13.	Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries	101
	SECTION 6.14.	Additional Note Guarantees	103
	SECTION 6.15.	Further Assurances	104
	SECTION 6.16.	Reports to Holders	105
	SECTION 6.17.	Limitations on Designation of Unrestricted Subsidiaries	106
	SECTION 6.18.	Limitation on the Issuance or Sale of Equity Interests of Restricted Subsidiaries	107
	SECTION 6.19.	Information Regarding Collateral	107
	SECTION 6.20.	Impairment of Security Interest	108
	SECTION 6.21.	Insurance	108
	SECTION 6.22.	Consolidated Secured Debt Ratio	108

ARTICLE SEVEN SUCCESSOR CORPORATION			109
	SECTION 7.01.	Mergers, Consolidations, Etc	109

ARTICLE EIGHT DEFAULT AND REMEDIES			111
	SECTION 8.01.	Events of Default	111
	SECTION 8.02.	Acceleration	113
	SECTION 8.03.	Other Remedies	114

	SECTION 8.04.	Waiver of Past Defaults	114
	SECTION 8.05.	Control by Majority	114
	SECTION 8.06.	Limitation on Suits	115
	SECTION 8.07.	Rights of Holders to Receive Payment	115
	SECTION 8.08.	Collection Suit by Trustee	115
	SECTION 8.09.	Trustee May File Proofs of Claim	116
	SECTION 8.10.	Priorities	116
	SECTION 8.11.	Undertaking for Costs	117

ARTICLE NINE TRUSTEE			117
	SECTION 9.01.	Duties of Trustee	117
	SECTION 9.02.	Rights of Trustee	118
	SECTION 9.03.	Individual Rights of Trustee	119
	SECTION 9.04.	Trustee’s Disclaimer	119
	SECTION 9.05.	Notice of Default	120
	SECTION 9.06.	Reports by Trustee to Holders	120
	SECTION 9.07.	Compensation and Indemnity	120
	SECTION 9.08.	Replacement of Trustee	121
	SECTION 9.09.	Successor Trustee by Merger, Etc	122
	SECTION 9.10.	Eligibility; Disqualification	122
	SECTION 9.11.	Preferential Collection of Claims Against the Issuer	123
	SECTION 9.12.	Notice of Payment of Additional Interest	123

ARTICLE TEN DISCHARGE OF INDENTURE; DEFEASANCE			123
	SECTION 10.01.	Termination of the Issuer’s Obligations	123
	SECTION 10.02.	Legal Defeasance and Covenant Defeasance	124
	SECTION 10.03.	Conditions to Legal Defeasance or Covenant Defeasance	125
	SECTION 10.04.	Application of Trust Money	127
	SECTION 10.05.	Repayment to the Issuer	127
	SECTION 10.06.	Reinstatement	127

ARTICLE ELEVEN AMENDMENTS, SUPPLEMENTS AND WAIVERS			128
	SECTION 11.01.	Without Consent of Holders	128
	SECTION 11.02.	With Consent of Holders	129
	SECTION 11.03.	Compliance with the Trust Indenture Act	131
	SECTION 11.04.	Revocation and Effect of Consents	131
	SECTION 11.05.	Notation on or Exchange of Notes	131
	SECTION 11.06.	Trustee to Sign Amendments, Etc.	132

ARTICLE TWELVE SECURITY DOCUMENTS			132
	SECTION 12.01.	Collateral and Security Documents	132
	SECTION 12.02.	Recordings and Opinions	133
	SECTION 12.03.	Release of Collateral	134
	SECTION 12.04.	Certificates of the Trustee	136
	SECTION 12.05.	Suits to Protect the Collateral	136
	SECTION 12.06.	Authorization of Receipt of Funds by the Trustee Under the Security Documents	136

	SECTION 12.07.	Purchaser Protected	136
	SECTION 12.08.	Powers Exercisable by Receiver or Trustee	137
	SECTION 12.09.	Release Upon Termination of the Issuer’s Obligations	137
	SECTION 12.10.	Noteholder Collateral Agent	138
	SECTION 12.11.	Compensation and Indemnity	142
	SECTION 12.12.	Intercreditor Agreement, Collateral Agreement and Other Security Documents	142

ARTICLE THIRTEEN NOTE GUARANTEE			143
	SECTION 13.01.	Unconditional Guarantee	143
	SECTION 13.02.	Subordination	144
	SECTION 13.03.	Limitation on Guarantor Liability	144
	SECTION 13.04.	Execution and Delivery of Note Guarantee	144
	SECTION 13.05.	Release of a Guarantor	145
	SECTION 13.06.	Waiver of Subrogation	146
	SECTION 13.07.	Immediate Payment	146
	SECTION 13.08.	No Set-Off	147
	SECTION 13.09.	Guarantee Obligations Absolute	147
	SECTION 13.10.	Note Guarantee Obligations Continuing	147
	SECTION 13.11.	Note Guarantee Obligations Not Reduced	147
	SECTION 13.12.	Note Guarantee Obligations Reinstated	147
	SECTION 13.13.	Note Guarantee Obligations Not Affected	148
	SECTION 13.14.	Waiver	149
	SECTION 13.15.	No Obligation to Take Action Against the Issuers	149
	SECTION 13.16.	Dealing with the Issuer and Others	149
	SECTION 13.17.	Default and Enforcement	150
	SECTION 13.18.	Acknowledgment	150
	SECTION 13.19.	Costs and Expenses	150
	SECTION 13.20.	No Merger or Waiver; Cumulative Remedies	150
	SECTION 13.21.	Survival of Note Guarantee Obligations	150
	SECTION 13.22.	Note Guarantee in Addition to Other Guarantee Obligations	151
	SECTION 13.23.	Severability	151
	SECTION 13.24.	Successors and Assigns	151

ARTICLE FOURTEEN MISCELLANEOUS			151
	SECTION 14.01.	Trust Indenture Act Controls	151
	SECTION 14.02.	Notices	151
	SECTION 14.03.	Communications by Holders with Other Holders	152
	SECTION 14.04.	Certificate and Opinion as to Conditions Precedent	152
	SECTION 14.05.	Statements Required in Certificate or Opinion	153
	SECTION 14.06.	Rules by Paying Agent or Registrar	153
	SECTION 14.07.	Legal Holidays	153
	SECTION 14.08.	Governing Law	153
	SECTION 14.09.	No Adverse Interpretation of Other Agreements	154
	SECTION 14.10.	No Recourse Against Others	154
	SECTION 14.11.	Successors	154
	SECTION 14.12.	Duplicate Originals	154

	SECTION 14.13.	Severability	154
	SECTION 14.14.	Senior Indebtedness	154
	SECTION 14.15.	Intercreditor Agreement Governs	154
	SECTION 14.16.	Intercreditor Agreement, Collateral Agreement and Security Documents	155
	SECTION 14.17.	Calculations	155
	SECTION 14.18.	Waiver of Jury Trial	155
	SECTION 14.19.	Force Majeure.	155

Signatures			S-1

Exhibit A	-	Form of Note
Exhibit B	-	Form of Notation of Subsidiary Guarantee
Exhibit C	-	Form of Legends
Exhibit D	-	Form of Certificate To Be Delivered in Connection with Transfers of Temporary Regulation S Global Note
Exhibit E	-	Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit F	-	Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S
Exhibit G	-	Common Stock Legend
Exhibit H	-	Form of Conversion Event Notice
Exhibit I	-	Form of Fundamental Change of Control Purchase Notice
Exhibit J	-	Form of Election Notice
Schedule I	-	Reference Table for Calculation of Additional Shares
Schedule II	-	Net Book Values of Real Properties

Term		Section
144A Global Note		Section 2.01
acceleration declaration		Section 8.02
Accrued Interest		Section 5.03(b)
Additional Shares		Section 5.07(b)
Affiliate Transaction		Section 6.12(a)
Authentication Order		Section 2.02
Cap Conversion Dates		Section 5.08(c)
Cash Conversion Amount		Section 5.08(e)
Cash Conversion Payment Date		Section 5.08(i)
Conversion Cap		Section 5.13
Conversion Date		Section 5.02(a)(iv)
Conversion Event		Section 5.08(a)
Conversion Event Notice		Section 5.08(a)

Term		Section
Conversion Notice		Section 5.02(a)(i)
Conversion Payment Date		Section 5.02(b)
Conversion Termination Date		Section 5.08(b)
Covenant Defeasance		Section 10.02(c)
Deposit Bank		Section 4.01(b)(vii)
Designation		Section 6.17(a)
Designation Amount		Section 6.17(a)(ii)
Distributed Assets		Section 5.04(d)(v)
Effective Date		Section 5.07(c)
Election Notice		Section 5.08(c)
Event of Default		Section 8.01
Excess Proceeds		Section 6.11(d)(iii)
Expiration Date		Section 5.04(f)
Expiration Time		Section 5.04(f)
Four Quarter Period		Section 5.04(f)
Fundamental Change of Control Issuer Notice		Section 3.01(b)
Fundamental Change of Control Purchase Date		Section 3.01(a)
Fundamental Change of Control Purchase Notice		Section 3.01(c)(i)
Fundamental Change of Control Purchase Price		Section 3.01(a)
Global Notes		Section 2.01
Guarantee Obligations		Section 13.01
Guarantors		Preamble
IAI Global Note		Section 2.01
indenture securities		Section 1.03
indenture security holder		Section 1.03
indenture to be qualified		Section 1.03
indenture trustee		Section 1.03
institutional trustee		Section 1.03
Issuer		Preamble
Legal Defeasance		Section 10.02(b)
Make Whole Payment		Section 5.07(f)
Net Proceeds Offer		Section 6.11(e)(i)
Net Proceeds Payment Date		Section 6.11(g)(2)
Net Proceeds Surplus		Section 6.11(f)
obligor		Section 1.03
Offered Price		Section 6.11(e)(ii)
Pari Passu Indebtedness Price		Section 6.11(e)(ii)
Participants		Section 2.15(a)
Paying Agent		Section 2.03
Payment Amount		Section 6.11(e)(i)
Permanent Regulation S Global Note,		Section 2.01
Permitted Indebtedness		Section 6.08(b)
Physical Notes		Section 2.01
Premises		Section 6.15
Public Spin-Off		Section 5.04(d)(v)

Term		Section
Public Spin-Off Valuation Period		Section 5.04(d)(v)
Redemption Price		Section 4.01(a)
Redesignation		Section 6.17(d)
Reference Property		Section 5.05(b)
Registrar		Section 2.03
Regulation S Global Note		Section 2.01
Relevant Determination Date		Section 1.01
Remaining Notes		Section 5.08(g)
Restricted Payments Basket		Section 6.09(a)(ii)
Share Price		Section 5.07(c)
Successor		Section 7.01(a)(i)(2)
Temporary Regulation S Global Note		Section 2.01
Trigger Event		Section 5.04(d)(v)
Trustee		Preamble

Period		Consolidated Secured Debt Ratio
April 1, 2012 — March 31, 2013		7.50 : 1.00
April 1, 2013 — March 31, 2014		7.00 : 1.00
April 1, 2014 — March 31, 2015		6.75 : 1.00
April 1, 2015 — and thereafter		6.50 : 1.00

U.S. CONCRETE, INC., as Issuer

By:	/s/ Michael W. Harlan
	Name: Michael W. Harlan
	Title: Chief Executive Officer and President

GUARANTORS:

ALBERTA INVESTMENTS, INC.
ALLIANCE HAULERS, INC.
ATLAS REDI-MIX, LLC
ATLAS-TUCK CONCRETE, INC.
BEALL CONCRETE ENTERPRISES, LLC
BEALL INDUSTRIES, INC.
BEALL INVESTMENT CORPORATION, INC.
BEALL MANAGEMENT, INC.
HAMBURG QUARRY LIMITED LIABILITY COMPANY
REDI-MIX CONCRETE, L.P.
REDI-MIX GP, LLC
REDI-MIX, LLC

By:	/s/ Michael W. Harlan
	Name: Michael W. Harlan
	Title: President

KURTZ GRAVEL COMPANY
SUPERIOR HOLDINGS, INC.
TITAN CONCRETE INDUSTRIES, INC.
USC ATLANTIC, INC.
USC MICHIGAN, INC.

By:	/s/ Michael W. Harlan
	Name: Michael W. Harlan
	Title: Vice President and Secretary

EASTERN CONCRETE MATERIALS, INC.

By:	/s/ Michael W. Harlan
	Name: Michael W. Harlan
	Title: President and Secretary

AMERICAN CONCRETE PRODUCTS, INC.
BRECKENRIDGE READY MIX, INC.
BUILDERS’ REDI-MIX, LLC
BWB, INC. OF MICHIGAN
CENTRAL CONCRETE SUPPLY CO., INC.
CENTRAL PRECAST CONCRETE, INC.
INGRAM CONCRETE, LLC
MG, LLC
SAN DIEGO PRECAST CONCRETE, INC.
SMITH PRE-CAST, INC.
SIERRA PRECAST, INC.
SUPERIOR CONCRETE MATERIALS, INC.
U.S. CONCRETE ON-SITE, INC.
USC MANAGEMENT CO., LLC
USC PAYROLL, INC.
USC TECHNOLOGIES, INC.

By:	/s/ Curt M. Lindeman
	Name: Curt M. Lindeman
	Title: Vice President and Secretary

LOCAL CONCRETE SUPPLY & EQUIPMENT, LLC
MASTER MIX CONCRETE, LLC
MASTER MIX, LLC
NYC CONCRETE MATERIALS, LLC
PEBBLE LANE ASSOCIATES, LLC

By:	/s/ Curt M. Lindeman
	Name: Curt M. Lindeman
	Title: President and Secretary

CONCRETE ACQUISITION III, LLC
CONCRETE ACQUISITION IV, LLC
CONCRETE ACQUISITION V, LLC
CONCRETE ACQUISITION VI, LLC
CONCRETE XXXIII ACQUISITION, INC.
CONCRETE XXXIV ACQUISITION, INC.
CONCRETE XXXV ACQUISITION, INC.
CONCRETE XXXVI ACQUISITION, INC.

By:	/s/ Curt M. Lindeman
	Name: Curt M. Lindeman
	Title: President

RIVERSIDE MATERIALS, LLC

By:	/s/ Wallace H. Johnson
	Name: Wallace H. Johnson
	Title: President and Secretary

U.S. BANK NATIONAL ASSOCIATION,
as Trustee and Noteholder Collateral Agent

By:	/s/ Wally Jones
	Name: Wally Jones
	Title: Vice President

U.S. BANK NATIONAL ASSOCIATION,
as Trustee

By:
	Authorized Signatory

Dated: _______________________	Signed:
		(Sign exactly as name appears on
		the other side of this Note)

Signature Guarantee:
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee)

Dated: _______________________	Signed:
		(Sign exactly as name appears on the other
		side of this Note)

Dated: _______________________
	NOTICE: To be executed by an executive officer

Dated: _______________________	Signed:
		(Sign exactly as name
		appears on the other
		side of this Note)

Very truly yours,

[Name of Transferor]

By:
	Authorized Signatory