FIRST SUPPLEMENTAL INDENTURE

Exhibit 4.2

Execution Version

 

 

FIRST SUPPLEMENTAL INDENTURE

by and among

BRISTOW GROUP INC.,

THE SUBSIDIARY GUARANTORS NAMED HEREIN

and

U. S. BANK NATIONAL ASSOCIATION

as Trustee

Dated as of June 17, 2008

Supplemental to Indenture

Dated as of June 17, 2008

3.00% Convertible Senior Notes due 2038

 

 

Table of Contents

				Page
		ARTICLE 1
		Definitions
Section 1.01		Scope of Supplemental Indenture			2
Section 1.02		Definitions			2
		ARTICLE 2
		Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01		Designation and Amount; Ranking			10
Section 2.02		Form of Notes			10
Section 2.03		Date and Denomination of Notes; Payments of Interest			10
Section 2.04		Payments of Additional Interest			11
Section 2.05		Exchange and Registration of Transfer of Notes; Depositary			11
Section 2.06		CUSIP Numbers			13
Section 2.07		Additional Notes; Repurchases			13
		ARTICLE 3
		Particular Covenants of the Company
Section 3.01		Payment of Principal, Premium and Interest			14
Section 3.02		Maintenance of Office or Agency			14
Section 3.03		Existence			14
Section 3.04		Additional Interest			15
Section 3.05		Further Instruments and Acts			15
Section 3.06		Reporting Obligations			15
Section 3.07		Future Guarantors			15
		ARTICLE 4
		Defaults and Remedies
Section 4.01		Additional Events of Default; Modifications			15
Section 4.02		Sole Remedy for Failure to Report			16
Section 4.03		Waivers of Certain Defaults			17
		ARTICLE 5
		Optional Redemption of the Notes by the Company
Section 5.01		Optional Redemption			17
Section 5.02		Selection of Notes to Be Redeemed			18
Section 5.03		Notice of Redemption			18
		ARTICLE 6
		Modifications and Amendments
Section 6.01		Modifications and Amendments Without Consent of Noteholders			19
Section 6.02		Modifications and Amendments With Consent of Noteholders			19

Table of Contents
(continued)

				Page
		ARTICLE 7
		Consolidation, Merger, Sale, Conveyance and Lease
Section 7.01		Company May Consolidate, Etc. on Certain Terms			20
		ARTICLE 8
		Conversion of Notes
Section 8.01		Right to Convert			21
Section 8.02		Conversion Procedure; Payment Upon Conversion			24
Section 8.03		Increase of Conversion Rate Upon Conversion Upon Make-Whole Fundamental Changes			28
Section 8.04		Adjustment of Base Conversion Rate			31
Section 8.05		Shares to Be Fully Paid			39
Section 8.06		Effect of Reclassification, Consolidation, Merger or Sale; Treatment of Reference Property			39
Section 8.07		Certain Covenants			40
Section 8.08		Responsibility of Trustee			40
Section 8.09		Notice to Holders Prior to Certain Actions			41
Section 8.10		Stockholder Rights Plans			42
		ARTICLE 9
		Repurchase of Notes at Option of Holders
Section 9.01		Repurchase at Option of Holders			43
Section 9.02		Repurchase at Option of Holders upon a Fundamental Change			45
Section 9.03		Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice			48
Section 9.04		Deposit of Repurchase Price or Fundamental Change Repurchase Price			48
		ARTICLE 10
		Subsidiary Guarantees
Section 10.01		General			49
Section 10.02		Mergers, Etc			49
Section 10.03		Release			50
		ARTICLE 11
		Defeasance and Discharge
Section 11.01		No Defeasance or Early Discharge			50

Table of Contents
(continued)

				Page
		ARTICLE 12
		Miscellaneous Provisions
Section 12.01		Ratification and Incorporation of Original Indenture			50
Section 12.02		Governing Law			50
Section 12.03		Payments on Business Days			50
Section 12.04		No Security Interest Created			50
Section 12.05		Trust Indenture Act			50
Section 12.06		Benefits of Indenture			51
Section 12.07		Calculations			51
Section 12.08		Table of Contents, Headings, Etc			51
Section 12.09		Execution in Counterparts			51
Section 12.10		Severability			51

EXHIBITS

EXHIBIT A		Form of Note		A-1
EXHIBIT B		Form of Notice of Conversion		B-1
EXHIBIT C		Form of Fundamental Change Repurchase Notice		C-1
EXHIBIT D		Form of Assignment and Transfer		D-1
EXHIBIT E		Form of Repurchase Notice		E-1

FIRST SUPPLEMENTAL INDENTURE

     THIS FIRST SUPPLEMENTAL INDENTURE dated as of June 17, 2008 (this “Supplemental Indenture”), is entered into among Bristow Group Inc., a Delaware corporation (the “Company”), the Subsidiary Guarantors signatory hereto, and U.S. Bank National Association, a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”). Capitalized terms used herein and not otherwise defined have the meanings set forth in the Original Indenture (as defined below).

RECITALS

     A. The Company, certain Subsidiary Guarantors and the Trustee entered into that certain Indenture, dated as of June 17, 2008 (the “Original Indenture”), pursuant to which the Company may from time to time issue its debentures, notes, bonds or other evidences of indebtedness (collectively, the “Securities”).

     B. Section 9.01 of the Original Indenture provides that the Company, when authorized by a resolution of the Board of Directors of the Company, and the Trustee may, without the consent of the holders of the Securities, enter into a supplemental indenture to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture.

     C. The Company has duly authorized the issue of 3.00% Convertible Senior Notes due 2038 (as they may be issued from time to time under this Supplemental Indenture, including any Additional Notes, the “Notes”), and in connection therewith, the Company has duly determined to make, execute and deliver this Supplemental Indenture to set forth the terms and provisions of the Notes as required by the Original Indenture.

     D. The Company has determined that this Supplemental Indenture is authorized or permitted by Sections 9.01 of the Original Indenture and has delivered to the Trustee an Opinion of Counsel and Officers’ Certificate to the effect that all conditions precedent provided for in the Original Indenture to the execution and delivery of this Supplemental Indenture have been complied with.

     E. The Form of Note, the Trustee’s Certificate of Authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice, the Form of Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided for.

     F. All things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in the Original Indenture provided, the valid and legally binding obligations of the Company have been done.

     G. All things necessary to make this Supplemental Indenture a valid and legally binding indenture and agreement according to its terms, and a valid and legally binding amendment of, and supplement to, the Original Indenture have been done.

     NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, the parties hereto agree, subject to the terms and conditions hereinafter set forth, as follows for the benefit of the Trustee and the Noteholders:

ARTICLE 1
Definitions

     Section 1.01 Scope of Supplemental Indenture . The changes, modifications and supplements to the Original Indenture affected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede any corresponding or inconsistent provisions in the Original Indenture.

     Section 1.02 Definitions . The terms defined in this Section 1.02 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Supplemental Indenture and for purposes of the Original Indenture as it relates to the Notes shall have the respective meanings specified in this Section 1.02. Except as otherwise provided in this Supplemental Indenture, all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meaning herein as in the Original Indenture. All other terms used in this Supplemental Indenture that are defined in the Trust Indenture Act or that are by reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Supplemental Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural as well as the singular.

     “ Additional Interest ” shall have the meaning specified in Section 4.02.

     “ Additional Shares ” shall have the meaning specified in Section 8.03(a).

     “ Applicable Conversion Rate ” means, with respect to any Note being converted, the sum of the Daily Conversion Rate Fractions for each Trading Day during the 20 Trading Days in the relevant Cash Settlement Averaging Period for such Note.

     “ Applicable Daily Conversion Rate ” on any day will be (a) if the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding such day is less than or equal to the Base Conversion Price, the Base Conversion Rate and (b) if such Last Reported Sale Price is greater than the Base Conversion Price, the Base Conversion Rate plus a number of shares of Common Stock equal to the product of (i) the Incremental Share Factor and (ii) (A) the difference between such Last Reported Sale Price and the Base Conversion Price divided by (B) such Last Reported Sale Price.

     “ Applicable Stock Price ” per share of Common Stock on any Trading Day means the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg (or any successor service) page BRS.N <Equity> AQR (or any equivalent successor page) in respect of the period from the scheduled open of trading on the principal U.S. national or regional securities exchange or quotation system on which the Common Stock is traded on such Trading Day, or, if such volume-weighted average price is not available, the Applicable Stock Price means the volume-weighted average price per share of Common Stock on such day as determined by a nationally recognized investment banking firm retained for this purpose by the Company. The Applicable Stock Price of other securities that constitute Reference Property and that are traded on a National Securities Exchange shall be determined in a manner substantially equivalent to the foregoing as determined in good faith by the Company.

     “ Base Conversion Price ” on any day means a dollar amount (initially, approximately $77.34) equal to $1,000 divided by the Base Conversion Rate in effect on such day.

     “ Base Conversion Rate ” is initially 12.9307 shares of Common Stock, subject to adjustment as set forth herein.

     “ Bid Solicitation Agent ” means the agent of the Company appointed to obtain quotations for the Notes as set forth under the definition of Trading Price, which agent shall at no time be an Affiliate of the Company. The Company may, from time to time, change the Bid Solicitation Agent.

     “ Cash Settlement Averaging Period ” means, with respect to any Note being converted, the 20 consecutive Trading Days beginning on, and including, the second Trading Day after the Conversion Date for such Note; provided that with respect to any Conversion Date that is on or after the 24th Scheduled Trading Day immediately preceding the Maturity Date or a Redemption Date, as applicable, the Cash Settlement Averaging Period shall mean the 20 consecutive Trading Days beginning on, and including, the 22nd Scheduled Trading Day immediately preceding the Maturity Date or Redemption Date, as the case may be.

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

     “ Commission ” means the Securities and Exchange Commission.

     “ Common Stock ” means the common stock, par value $0.01 per share, of the Company, which stock is listed on the New York Stock Exchange at the date of this Supplemental Indenture, or shares of any class or classes resulting from any reclassification or reclassifications thereof and that have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and that are not subject to redemption by the Company; provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

     “ Company ” means Bristow Group Inc., a Delaware corporation, and subject to the provisions of Article 7 hereof and Article V of the Original Indenture, shall include its successors and assigns.

     “ Company Notice ” shall have the meaning specified in Section 9.01(b).

     “ Conversion Agent ” shall have the meaning specified in Section 3.02.

     “ Conversion Date ” shall have the meaning specified in Section 8.02(d).

     “ Conversion Obligation ” shall have the meaning specified in Section 8.01(a).

     “ Custodian ” means U. S. Bank National Association, as custodian for the Depositary, with respect to the Notes in global form, or any successor entity thereto.

     The “ Daily Conversion Rate Fraction ” for each Trading Day during the relevant Cash Settlement Averaging Period shall be determined as follows:

     (a) if the Applicable Stock Price of the Common Stock on such Trading Day is less than or equal to the Base Conversion Price, the Daily Conversion Rate Fraction for such Trading Day shall be equal to 1/20th of the Base Conversion Rate; and

     (b) if the Applicable Stock Price of the Common Stock on such Trading Day is greater than the Base Conversion Price, the Daily Conversion Rate Fraction for such Trading Day shall be equal to 1/20th of the following:

			Applicable Stock Price
			of Common Stock on such
			Trading Day
Base Conversion Rate +			— Base Conversion Price		x Incremental Share Factor
			Applicable Stock Price
			of Common Stock on such
			Trading Day

     Notwithstanding the foregoing, if the Daily Conversion Rate Fraction for any Trading Day in the relevant Cash Settlement Averaging Period would otherwise be greater than the Daily Share Cap, the Daily Conversion Rate Fraction for such Trading Day shall be equal to the Daily Share Cap.

     “ Daily Conversion Value ” means, for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period, the product of (a) the Daily Conversion Rate Fraction for such day and (b) the Applicable Stock Price of the Common Stock on such day. For purposes of the foregoing, the Daily Conversion Value of Reference Property will be determined by reference to (a) in the case of Reference Property or part of Reference Property that is traded on a National Securities Exchange, the Applicable Stock Price of such security or common stock, (b) in the case of any other property other than cash, the value thereof as determined by two independent nationally recognized investment banks as of the effective date of the transaction and (c) in the case of cash, 100% of the amount thereof.

     “ Daily Settlement Amount ” means for each of the 20 consecutive Trading Days during the Cash Settlement Averaging Period (1) cash equal to $50, or if less, the Daily Conversion Value; and (2) to the extent the Daily Conversion Value exceeds $50, the Daily Share Amount.

     “ Daily Share Amount ” means a number of shares of Common Stock equal to (A) the difference between the Daily Conversion Value and $50, divided by (B) the Applicable Stock Price of the Common Stock for such day.

     “ Daily Share Cap ” means, in respect of each $1,000 principal amount of Notes, 1/20th of 21.3356 shares of Common Stock, subject to adjustment in the same manner as the Base Conversion Rate as set forth herein.

     “ Defaulted Interest ” means any interest on any Note that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date.

     “ Designated Institution ” shall have the meaning specified in Section 8.02(l).

     “ Distributed Property ” shall have the meaning specified in Section 8.04(c).

     “ Effective Date ” means, with respect to a Make-Whole Fundamental Change, a consolidation, merger, share exchange, sale of all or substantially all of the Company’s assets or other similar transaction, the date on which such event or transaction becomes effective.

     “ Ex - Dividend Date ” means, with respect to any issuance, dividend or distribution in which the holders of Common Stock (or other security) have the right to receive any cash, securities or other property, the first date on which the shares of the Common Stock (or other security) trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question.

     “ Fundamental Change ” means the occurrence after the original issuance of the Notes of any of the following events:

     (a) a “person” or “group” within the meaning of Section 13(d)(3) of the Exchange Act becomes the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of the Common Stock representing more than 50% of the voting power of the Common Stock entitled to vote generally in the election of directors and (i) files a Schedule 13D or Schedule TO or any other schedule, form or report under the Exchange Act disclosing such beneficial ownership or (ii) the Company otherwise becomes aware of any such person or group; provided that this clause (a) shall not apply to a transaction covered in clause (d) below, including any exception thereto; or

     (b) the Common Stock or shares of common stock, depositary receipts or other certificates representing common equity interests into which the Notes are then convertible cease to be listed for trading on a National Securities Exchange for a period of 20 consecutive Trading Days; or

     (c) the first day on which a majority of the members of the board of directors of the Company does not consist of continuing directors; or

     (d) the Company is a party to a consolidation, merger or binding share exchange, or any conveyance, transfer, sale, lease or other disposition in a single transaction or a series of related transactions of all or substantially all of the Company’s properties and assets other than any transaction that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s capital stock and pursuant to which holders of the Company’s capital stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of capital stock entitled to vote generally in elections of directors of the continuing or surviving or successor Person (or any parent thereof) immediately after giving effect to such transaction; or

     (e) the Company’s shareholders approve any plan or proposal for the Company’s liquidation or dissolution.

     For purposes of this Fundamental Change definition: (a) “ board of directors ” means the board of directors or other governing body charged with the ultimate management of any person; (b) “ continuing director ” means a director who either was a member of the board of directors of the Company on the date hereof, or who becomes a member of the board of directors subsequent to that date and whose initial election, appointment or nomination for election by the Company’s shareholders is duly approved by a majority of the continuing directors on the board of directors of the Company at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the board of directors of the Company in which such individual is named as a nominee for director; and (c) “ person ” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

     Notwithstanding the foregoing, a Fundamental Change will be deemed not to have occurred if more than 90% of the consideration in the transaction or transactions (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) which otherwise would constitute a Fundamental Change under clause (d) above consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction on a National Securities Exchange and, as a result of the transaction or transactions, the Notes become convertible, upon satisfaction of the conditions to conversion, into such common stock, depositary receipts or other certificates representing common equity interests (and any rights attached thereto) and other applicable consideration.

     “ Fundamental Change Company Notice ” shall have the meaning specified in Section 9.02(b).

     “ Fundamental Change Expiration Time ” shall have the meaning specified in Section 9.02(b).

     “ Fundamental Change Repurchase Date ” shall have the meaning specified in Section 9.02(a).

     “ Fundamental Change Repurchase Notice ” shall have the meaning specified in Section 9.02(a).

     “ Fundamental Change Repurchase Price ” shall have the meaning specified in Section 9.02(a).

     “ Global Note ” shall have the meaning specified in Section 2.05(b).

     “ Incremental Share Factor ” means initially 8.4049 shares of Common Stock, subject to the same proportional adjustment as the Base Conversion Rate as set forth herein.

     “ Indenture ” means the Original Indenture, as amended and supplemented by this Supplemental Indenture and, if further amended or supplemented as herein provided, as so amended or supplemented.

     “ interest ” means, when used with reference to the Notes, any interest payable under the terms of the Notes, including (unless context otherwise requires) Defaulted Interest, if any, and Additional Interest, if any.

     “ Interest Payment Date ” means each June 15 and December 15 of each year, beginning on December 15, 2008.

     “ Interest Record Date ,” with respect to any Interest Payment Date, shall mean the June 1 or December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15 or December 15 Interest Payment Date, respectively.

     “ Last Reported Sale Price ” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is listed for trading. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, then the “ Last Reported Sale Price ” will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization. If the Common Stock is not so quoted, the “ Last Reported Sale Price ” will be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

     “ Make - Whole Fundamental Change ” means any transaction or event that occurs prior to June 15, 2015 and constitutes a Fundamental Change as described in clause (a) or clause (d) of the definition of Fundamental Change.

     “ Market Disruption Event ” means (a) failure by the principal U.S. national or regional securities exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (b) the occurrence or existence on any Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the

Common Stock or in any options, contracts or future contracts relating to the Common Stock for an aggregate period in excess of one half hour.

     “ Maturity Date ” means June 15, 2038.

     “ Merger Event ” shall have the meaning specified in Section 8.06.

     “ National Securities Exchange ” means a U.S. national securities exchange, including the New York Stock Exchange, the NASDAQ Global Market and NASDAQ Global Select Market.

     “ Noteholder ” or “ holder ,” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time a particular Note is registered on the Note Register.

     “ Note Register ” shall have the meaning specified in Section 2.05(a).

     “ Note Registrar ” shall have the meaning specified in Section 2.05(a).

     “ Notice of Conversion ” shall have the meaning specified in Section 8.02(b).

     “ open of business ” means 9:00 a.m. (New York City time).

     “ Original Indenture ” means the indenture dated as of June 17, 2008 by and among the Company, the Subsidiary Guarantors named therein and the Trustee.

     “ Paying Agent ” shall have the meaning specified in Section 3.02.

     “ Record Date ” shall have the meaning specified in Section 8.04(f).

     “ Redemption Date ” shall have the meaning specified in Section 5.01(a).

     “ Redemption Price ” shall have the meaning specified in Section 5.01(a).

     “ Reference Property ” shall have the meaning specified in Section 8.06(a).

     “ Repurchase Date ” shall have the meaning specified in Section 9.01(a).

     “ Repurchase Notice ” shall have the meaning specified in Section 9.01(c).

     “ Repurchase Price ” shall have the meaning specified in Section 9.01(a).

     “ Rights ” shall have the meaning specified in Section 8.10.

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

     “ Settlement Amount ” shall have the meaning specified in Section 8.02.

     “ Spin - Off ” shall have the meaning specified in Section 8.04(c).

     “ Stock Price ” means (a) in the case of a Make-Whole Fundamental Change in which holders of Common Stock receive solely cash consideration in connection with such Make-Whole Fundamental Change, the amount of cash paid per share of the Common Stock and (b) in the case of all other Make-Whole Fundamental Changes, the average of the Last Reported Sale Prices per share of Common Stock over the period of five consecutive Trading Days ending on the Trading Day immediately preceding the Effective Date of such Make-Whole Fundamental Change. The Board of Directors will make appropriate adjustments, in its good faith determination, to account for any adjustment to the Base Conversion Rate that becomes effective, or any event requiring an adjustment to the Base Conversion Rate where the Ex-Dividend Date of the event occurs, during such five consecutive Trading Days.

      “Subsidiary Guarantors” means the Subsidiaries of the Company named as such on the signature page hereto, and any other Subsidiary of the Company that provides a Guarantee of the Notes in accordance with Section 3.07 hereof or Article X of the Original Indenture, and in each case, their successors.

     “ Trading Day ” means a day during which trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange or quotation system on which the Common Stock is listed for trading and during which there is no Market Disruption Event; provided that if the Common Stock is not listed for trading on a U.S. national or regional securities exchange or quotation system, “ Trading Day ” will mean a Business Day.

     “ Trading Price ” with respect to the Notes, on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5.0 million principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used.

     “ Trigger Event ” shall have the meaning specified in Section 8.10.

     “ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Supplemental Indenture, except as provided in Section 8.06; provided , however , that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “ Trust Indenture Act ” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.

     “ Trustee ” means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Supplemental Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

ARTICLE 2
Issue, Description, Execution, Registration
and Exchange of Notes

     Section 2.01 Designation and Amount; Ranking . The Notes shall be designated as the “3.00% Convertible Senior Notes due 2038.” The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $115,000,000 aggregate principal amount (including up to $15,000,000 of Notes that may be issued upon exercise of the option to purchase additional Notes granted to the underwriters with respect to the initial sale of the Notes) subject to Section 2.07 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.07, Section 5.03, Section 8.02 and Section 9.04 hereof and Section 2.09 of the Original Indenture.

     Section 2.02 Form of Notes . The Notes and the Trustee’s Certificate of Authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, which are incorporated in and made a part of this Supplemental Indenture.

     Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Supplemental Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any National Securities Exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.

     The Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of the Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder of such Notes in accordance with this Supplemental Indenture. Payment of principal, accrued and unpaid interest and premium, if any (including any Fundamental Change Repurchase Price, Repurchase Price or Redemption Price), on the Global Note shall be made to the holder of such Note on the date of payment, unless a record date or other means of determining holders eligible to receive payment is provided for herein.

     The terms and provisions contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Supplemental Indenture.

     Section 2.03 Date and Denomination of Notes; Payments of Interest . The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

     The Person in whose name any Note (or its predecessor security) is registered on the Note Register at the close of business on any Interest Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Company maintained by the Company for such purposes in the United States, which shall initially be the office of the Trustee at 225 Asylum Street, Hartford, CT 06103. The Company shall pay interest (a) on any Notes in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Note Register (or upon written application by such Person to the Trustee and Paying Agent (if different from the Trustee) not later than the relevant Interest Record Date, by wire transfer in immediately available funds to such Person’s account within the United States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000, which application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent to the contrary) or (b) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.

     Section 2.04 Payments of Additional Interest . If required by Section 4.02, each Note shall bear Additional Interest in the manner set forth herein. Whenever in this Supplemental Indenture there is mentioned, in any context, the payment of the principal of, premium, if any, or interest on, or in respect of, any Note, such mention shall be deemed to include mention of the payment of “Additional Interest” provided for in Section 4.02 to the extent that, in such context, Additional Interest is, was or would be payable in respect thereof and express mention of the payment of Additional Interest (if applicable) in any provisions hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.

     Section 2.05 Exchange and Registration of Transfer of Notes; Depositary .

     (a) The Company shall cause to be kept at the corporate trust office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 3.02 being herein sometimes collectively referred to as the “ Note Register ,” in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby appointed “ Note Registrar ” and shall constitute a Registrar (as such term is defined in the Original Indenture) for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with Section 3.02.

     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 3.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Noteholder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

     None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for

conversion or (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 9 hereof.

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

     (b) The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Notes. So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, all Notes shall be represented by one or more Notes in the form of Global Securities (each, a “ Global Note ”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a definitive Note, shall be effected through the Depositary in accordance with this Supplemental Indenture and the procedures of the Depositary therefor.

     Notwithstanding any other provisions of the Indenture (other than the provisions set forth in this Section 2.05(b)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Note in certificated form made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in compliance with this Section 2.05.

     The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Note. Initially, the Global Notes shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as Custodian for the Depositary.

     If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 calendar days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 calendar days or (iii) an Event of Default in respect of the Notes has occurred and is continuing, and any Noteholder has requested that the Notes be issued in definitive form in exchange for a Global Note, the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Notes, will authenticate and deliver Notes in definitive form to each person that the Depositary identifies as a beneficial owner of the related Notes (or a portion thereof) in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, and upon delivery of the Global Note to the Trustee such Global Note shall be canceled.

     Definitive Notes issued in exchange for all or a part of a Global Note pursuant to this Section 2.05(b) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such definitive Notes to the Persons in whose names such definitive Notes are so registered.

     At such time as all interests in a Global Note have been converted, canceled, redeemed, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and instructions existing between the Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for definitive Notes, converted, canceled, repurchased or transferred to a transferee who receives definitive Notes therefor or any definitive Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.

     None of the Company, the Trustee, nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

     Section 2.06 CUSIP Numbers . The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Noteholders as a convenience to holders of the Notes; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

     Section 2.07 Additional Notes; Repurchases . The Company may, without the consent of the Noteholders and notwithstanding Section 2.01, reopen this Supplemental Indenture and issue additional Notes hereunder with the same terms and with the same CUSIP number as the Notes initially issued hereunder in an unlimited aggregate principal amount, which will form the same series with the Notes initially issued hereunder; provided that no such additional Notes will be treated as part of the same series as the Notes unless such additional Notes will be part of the same issue as the Notes initially issued hereunder for U.S. federal income tax purposes. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 11.05 of the Original Indenture, as the Trustee shall reasonably request. The Company may also from time to time repurchase the Notes in open market purchases or negotiated transactions without prior notice to Noteholders.

ARTICLE 3
Particular Covenants of the Company

     Section 3.01 Payment of Principal, Premium and Interest . The Company covenants and agrees that it will cause to be paid the principal of and premium, if any (including the Fundamental Change Repurchase Price, the Repurchase Price and the Redemption Price), and accrued and unpaid interest on each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes. Each installment of interest on the Notes, may be paid by mailing checks for the amount payable to Noteholders entitled thereto as they shall appear on the registry books of the Company; provided that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at the application of such holder in writing to the Trustee and Paying Agent (if different from the Trustee) not later than the relevant Interest Record Date, interest on such holder’s Notes shall be paid by wire transfer in immediately available funds to such holder’s account in the United States, which application shall remain in effect until the Noteholder notifies the Trustee and Paying Agent to the contrary; provided further that payment of interest made to the Depositary shall be paid by wire transfer in immediately available funds in accordance with such wire transfer instructions and other procedures provided by the Depositary from time to time.

     Section 3.02 Maintenance of Office or Agency . The Company will maintain in the United States, an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment, repurchase or redemption (“ Paying Agent ”) or for conversion (“ Conversion Agent ”) and where notices and demands to or upon the Company in respect of the Notes and the Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the corporate trust office or the office or agency of the Trustee.

     The Company may also from time to time designate as co-registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.

     The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian, Bid Solicitation Agent and Conversion Agent and the corporate trust office and the office or agency of the Trustee each shall be considered as one such office or agency of the Company for each of the aforesaid purposes; provided that the Trustee may appoint an agent, reasonably acceptable to the Company, to perform the duties of the Bid Solicitation Agent.

     Section 3.03 Existence . Except as permitted by Section 7.01 or Article V of the Original Indenture, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

     Section 3.04 Additional Interest . If Additional Interest is payable by the Company, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (a) the amount of such Additional Interest that is payable and (b) the date on which such interest is payable. Unless and until a Responsible Officer of the Trustee receives at the corporate trust office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable.

     Section 3.05 Further Instruments and Acts . Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Supplemental Indenture.

     Section 3.06 Reporting Obligations . Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the Commission (unless the Commission will not accept such a filing) within the time periods specified in the Exchange Act and, within 15 days of filing, or attempting to file, the same with the Commission, furnish to the Trustee and the holders of the outstanding Notes:

     (a) all quarterly and annual financial and other information with respect to the Company and its subsidiaries that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report thereon by the Company’s certified independent accountants; and

     (b) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

     So long as the Company is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Company’s obligation to deliver the information referred to above shall be deemed satisfied upon the filing of such information in the EDGAR system and the giving of notice to the Trustee as to the public availability of such information from such source.

     Section 3.07 Future Guarantors . If any Subsidiary of the Company that is not a Subsidiary Guarantor guarantees or becomes a co-obligor with respect to any indebtedness for money borrowed of the Company or another Subsidiary Guarantor, then such Subsidiary shall, within 15 days thereof, execute a supplement to the Indenture under which it shall become a Subsidiary Guarantor with respect to the Notes in accordance with the terms of Article 10 hereof and Article X of the Original Indenture.

ARTICLE 4
Defaults and Remedies

     Section 4.01 Additional Events of Default; Modifications . In addition to those Events of Default set forth in Section 6.01 of the Original Indenture, the following events shall be Events of Default with respect to the Notes and the terms of the Original Indenture shall be modified as set forth below:

     (a) failure by the Company to issue a notice with respect to a Fundamental Change when such notice becomes due in accordance with Sections 8.03(d) or 9.02(b);

     (b) failure by the Company to comply with its obligations to repurchase the Notes as required under Article 9, or failure by the Company to comply with its obligations to redeem the Notes under Article 10 after the Company issues a notice of redemption in accordance with Section 3.03 of the Original Indenture;

     (c) failure by the Company to deliver when due of all cash and any shares of Common Stock or other consideration payable upon conversion with respect to the Notes, which failure continues for 10 days;

     (d) failure by the Company to comply with Section 7.01 hereof upon our receipt of notice of such Default from the Trustee or from holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and the failure to cure (or obtain a waiver of) such Default within 30 days after receipt of such notice;

     (e) failure by any Subsidiary Guarantor to perform any covenant set forth in its Guarantee; and

     (f) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries), which default is caused by a failure to pay principal of or premium or interest on such indebtedness prior to the expiration of any grace period provided in such indebtedness, including any extension thereof (a “payment default”), or results in the acceleration of such indebtedness prior to its stated maturity and, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates in excess of $25.0 million and provided, further, that if any such default is cured or waived or any such acceleration rescinded, or such indebtedness is repaid, within a period of 10 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the Notes shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree.

     Section 4.02 Sole Remedy for Failure to Report . Notwithstanding any other provision of the Indenture, if the Company so elects, the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations under Section 3.06 will, for the period beginning on the 91st calendar day after the written notice of the occurrence of such failure to report from the Trustee or holders of 25% of the outstanding principal amount of the Notes, consist exclusively of the right to receive additional interest on the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes (the “ Additional Interest ”). This Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Notes. If the Company so elects, this Additional Interest will accrue on all outstanding Notes from and including the 91st day following the date of such written notice of the failure to comply with Section 3.06 to but not including the date on which the Event of Default relating to

the reporting obligations as set forth in Section 3.06 shall have been cured or waived. On the 180th calendar day after the commencement of such Additional Interest (if such violation is not cured or waived prior to such 180th calendar day), the Notes will be subject to acceleration upon written notice from the Trustee or holders of 25% of the outstanding principal amount of the Notes, in accordance with Section 6.02 of the Original Indenture.

     In order to exercise the extension right and elect to pay the Additional Interest as the sole remedy following the occurrence of any Event of Default relating to the failure to comply with Section 3.06 in accordance with the preceding paragraph, the Company must notify all Noteholders and the Trustee and Paying Agent of such election prior to the close of business on the 91st calendar day after the written notice to the Company of such failure to report (or, if such date is not a Business Day, on the first Business Day thereafter). Upon the Company’s failure to timely give such notice, the Notes will be subject to acceleration as provided above.

     For the avoidance of doubt, the provisions of this Section 4.02 will not affect the rights of Noteholders in the event of the occurrence of any other Event of Default.

     Section 4.03 Waivers of Certain Defaults . Section 6.04 of the Original Indenture is amended, for purposes of the Notes, to add after numbered clause (2) in the first sentence thereof, the following “or (3) a continuing Default or Event of Default in the delivery of cash, Common Stock or other consideration due upon conversion of any Security.”

ARTICLE 5
Optional Redemption of the Notes by the Company

     Section 5.01 Optional Redemption .

     (a) Subject to clause (b) below, on or after June 15, 2015, the Notes shall be redeemable, in whole or in part, at the option of the Company on any date specified by the Company in accordance with the Indenture (a “ Redemption Date ”), at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus any accrued and unpaid interest up to, but excluding, the Redemption Date (the “ Redemption Price ”); provided that if the Redemption Date is on a date that is after an Interest Record Date and on or prior to the corresponding Interest Payment Date, the Redemption Price shall be 100% of the principal amount of the Notes redeemed but shall not include accrued and unpaid interest, and the Company shall pay such interest on the Interest Payment Date to the Noteholder of record on the corresponding Interest Record Date. Notwithstanding the foregoing, the Company may not redeem the Notes on any date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Redemption Date (except in the case of an acceleration resulting from a default by the Company in the payment of the Redemption Price with respect to such Notes).

     (b) The following provisions of the Original Indenture shall not apply with respect to the Notes: the last sentence of Section 3.02 of the Original Indenture, clause (8) of Section 3.04 of the Original Indenture, and the clause “unless the redemption or notice thereof is subject to one or more conditions as specified in the notice.” Except as otherwise provided herein, redemptions of the Notes shall be subject to Article III of the Original Indenture.

     (c) If the Company calls the Notes for redemption, the Notes or portions of the Notes to be redeemed may be converted by the Noteholder until the close of business on the Business Day immediately preceding the Redemption Date in accordance with Article 8 hereof.

     Section 5.02 Selection of Notes to Be Redeemed .

     (a) If less than all of the Notes are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall select the Notes to be redeemed by lot, on a pro rata basis, at random or by another method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of any stock exchange or quotation association on which the Notes are then traded or quoted).

     (b) Notes and portions of Notes that the Trustee selects shall be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of this Supplemental Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Company promptly of the Notes or portions of the Notes selected to be redeemed and, in the case of any Notes selected for partial redemption, the method it has chosen for the selection of the Note.

     (c) If any Note selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Note so selected, the converted portion of such Note shall be deemed (so far as may be) to be the portion selected for redemption. Notes that have been converted during a selection of Notes to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection.

     Section 5.03 Notice of Redemption . The Company shall notify each Noteholder of the redemption in the manner provided in Section 3.04 of the Original Indenture. In addition to those matters set forth in Section 3.04 of the Original Indenture, a notice of redemption sent to the Noteholders shall state:

     (a) the name of the Paying Agent and Conversion Agent;

     (b) the Base Conversion Rate;

     (c) that the Notes called for redemption may be converted at any time prior to the close of business on the Business Day immediately preceding the Redemption Date;

     (d) that Noteholders who wish to convert the Notes must comply with the procedures in Section 8.01 and Section 8.02; and

     (e) in the event of the redemption of the Notes in part only, a new Note or Notes for the unredeemed portion will be issued in the name or names of the Noteholders thereof upon surrender thereof.

ARTICLE 6
Modifications and Amendments

     Section 6.01 Modifications and Amendments Without Consent of Noteholders . With respect to the Notes, the numbered paragraphs (1) through (11) in the first paragraph of Section 9.01 of the Original Indenture shall be replaced in their entirety with the following:

     (a) to evidence a successor to the Company and the assumption by that successor of the Company’s obligations under the Indenture and the Notes;

     (b) to add to the Company’s covenants for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Company;

     (c) to secure the Company’s obligations in respect of the Notes or to add a guarantor of the Notes;

     (d) to evidence and provide the acceptance of the appointment of a successor Trustee under the Indenture;

     (e) to comply with the requirements of the Commission in order to effect or maintain qualification of the Indenture under the Trust Indenture Act, as contemplated by the Indenture or otherwise;

     (f) to provide for conversion rights of holders if any reclassification or change of common stock or any consolidation, merger or sale of all or substantially all of our property and assets occurs or otherwise comply with the provisions of the Indenture in the event of such a transaction;

     (g) to increase the Base Conversion Rate in accordance with the terms of the Notes;

     (h) to cure any ambiguity, omission, defect or inconsistency in the Indenture; or

     (i) to make any change that does not adversely affect the rights of the holders of the Notes in any material respect.

     Section 6.02 Modifications and Amendments With Consent of Noteholders . With respect to the Notes, the fifth paragraph of Section 9.02 of the Original Indenture shall be replaced in its entirety with the following:

     “However, without the consent of the holder of each Note affected, an amendment, supplement or waiver under this Section 9.02 may not:

     (a) alter the manner of calculation or rate of accrual of interest on the Note or change the time of payment of any installment of interest;

     (b) make the Note payable in money or securities other than that stated in the Note;

     (c) change the stated maturity of the Note;

     (d) reduce the principal amount, Redemption Price, Repurchase Price or Fundamental Change Repurchase Price with respect to the Note;

     (e) make any change that adversely affects the rights of a holder to convert the Note or, except as provided for in the Indenture, changes the consideration to be received upon any such conversion;

     (f) make any change that adversely affects the right to require the Company to purchase the Note;

     (g) impair the right to institute suit for the enforcement of any payment with respect to the Note or with respect to conversion of the Note; or

     (h) change the provisions in the Indenture that relate to modifying or amending the Indenture or waiving any past defaults in the payment of principal, premium, if any, or interest on the Notes.”

ARTICLE 7
Consolidation, Merger, Sale, Conveyance and Lease

     Section 7.01 Company May Consolidate, Etc. on Certain Terms . Notwithstanding anything to the contrary in Section 5.01 of the Original Indenture, the Company shall not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of the Company’s properties and assets to any successor Person in a single transaction or series of related transactions, unless:

     (a) either:

     (i) the resulting, continuing, surviving or transferee Person is the Company; or

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

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

     (c) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the transaction and such supplemental indenture comply with the Indenture.

     Any reference in the Original Indenture to Section 5.01 therein shall, for the Notes, be deemed a reference to this Section 7.01.

ARTICLE 8
Conversion of Notes

     Section 8.01 Right to Convert . (a) Subject to the provisions of this Article 8, on or prior to the close of business on the Business Day immediately preceding the Maturity Date, the Noteholders shall have the right, at such holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such holder’s Note into cash, and, if applicable, Common Stock as provided herein, unless such Notes have been previously redeemed or repurchased. The obligation of the Company to convert the Notes is referred to as the “ Conversion Obligation .” A Noteholder’s right to convert a Note called for redemption will terminate at the close of business on the Business Day immediately preceding the Redemption Date for the Note, unless the Company defaults in making the payment due upon redemption. In addition, if a Noteholder has exercised its right to require the Company to repurchase its Notes under Article 9, such Noteholder may not convert its Notes unless it withdraws its repurchase notice prior to the close of business on the Business Day immediately preceding such Repurchase Date or Fundamental Change Repurchase Date, as applicable. The delivery to the Noteholder of the Settlement Amount together with any cash payment for such holder’s fractional shares, will be deemed to satisfy the Company’s obligation to pay the principal amount of the Notes and to satisfy the Company’s obligation to pay accrued and unpaid interest through the Conversion Date, except as provided in Section 8.02(i). Holders of Common Stock issued upon conversion, if any, will not be entitled to receive any dividends payable to holders of Common Stock as of a record date before the applicable Conversion Date.

     Subject to the foregoing, prior to January 1, 2038, the Notes are convertible only in the circumstances described below in clauses (i)-(iv). On or after January 1, 2038, a Noteholder may surrender Notes for conversion at any time prior to the close of business on the Business Day immediately preceding the Maturity Date without regard to such conditions.

     (i) Conversion Upon Satisfaction of Common Stock Price Condition . Notes may be converted during any calendar quarter commencing after June 30, 2008, and only during such quarter, if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the quarter immediately preceding such quarter (appropriately adjusted to take into account the occurrence, during such 30 consecutive Trading Days, of any event requiring adjustment of the Base Conversion Price under this Indenture) is more than 120% of the Base Conversion Price on such last Trading Day.

     (ii) Conversion Upon Satisfaction of Trading Price Condition . Notes may be converted during the five consecutive Business Days after any five consecutive Trading Days on which the Trading Price of $1,000 principal amount of Notes, as determined by the Trustee following a request by a Noteholder in accordance with the procedures described below in Section 8.01(c), for each Trading Day of such five Trading Days was less than 97% of the product of the Last Reported Sale Price of the Common Stock for such Trading Day and the Applicable Daily Conversion Rate on such day.

     (iii) Conversion Upon Notice of Redemption . A Note may be converted if such Note has been called for redemption by the Company pursuant to Section 3.01 and the redemption has not yet occurred, so long as the Noteholder surrenders such Note for conversion (or if the Note is held in book-entry form, completes and delivers to the Depositary appropriate instructions in accordance with the applicable procedures of the Depositary) after the notice of such redemption is given and prior to the close of business on the Business Day prior to the applicable Redemption Date ( provided that if the Company shall default in paying the Redemption Price when due, the conversion right shall continue until such time as such default is cured and such Note is redeemed), whether or not the Note is otherwise convertible at such time.

     (iv) Conversion Upon Specified Corporate Transactions .

     A Note may be converted during the applicable time period specified below if:

     (A) the Company makes a distribution to all or substantially all holders of Common Stock of rights, warrants or options entitling them (for a period commencing no earlier than the date of distribution and expiring not more than 45 calendar days after the Record Date of the distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the average Last Reported Sale Prices of the Common Stock for the 10 Trading Days immediately preceding the date such distribution was first publicly announced;

     (B) the Company makes a distribution to all or substantially all holders of Common Stock, of cash or other assets, debt securities, or rights or warrants to purchase the Company’s securities (other than those described in Section 8.04(a) or (b)), where the fair market value of such distribution per share of Common Stock (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value) exceeds 15% of the average of the Last Reported Sale Prices of the Common Stock for the ten Trading Days immediately preceding the date such distribution was first publicly announced;

     (C) the Company is party to a consolidation, merger, share exchange, sale of all or substantially all of its assets or other similar transaction (in each case other than with one of the Company’s wholly-owned Subsidiaries), in each case pursuant to which the Common Stock would be converted into (or holders of Common Stock would be entitled to receive) cash, securities or other property; or

     (D) a Make-Whole Fundamental Change occurs.

     In the event of a distribution described in Sections 8.01(a)(iv)(A) and (B), the Company shall cause a written notice of such distribution to be given to the Trustee and the Conversion Agent and to be mailed to each Noteholder no later than 25 Trading Days prior to the Ex-Dividend Date for such distribution. Once the Company has given such notice, Noteholders may surrender their Notes for conversion at any time thereafter until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date or the Company’s announcement that such distribution will not take place. If such distribution does not occur as

anticipated, the Company will issue a press release and notify the holders who have elected to c