SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

Current Report

AGCO CORPORATION

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

Item 1.01 Entry Into a Material Definitive Agreement

     On November 28, 2006, AGCO Corporation (the “Company”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., as representatives of the underwriters (collectively, the “Underwriters”) for the issuance and sale by the Company of $175.0 million aggregate principal amount of the Company’s 1.25% Convertible Senior Subordinated Notes due 2036 (the “Notes”), pursuant to the Company’s effective Registration Statement on form S-3 (Registration No. 333-138964). The Notes are being sold to the Underwriters at 100% of the principal amount per Note ($1,000), less an underwriting discount of 2.375% per Note. The Company also granted the Underwriters an option to purchase up to an additional $26.25 million aggregate principal amount of Notes solely to cover over-allotments, if any, which option was exercised in full by the Underwriters on November 29, 2006. The Notes were issued pursuant to an Indenture dated December 4, 2006 (the “Indenture”), between the Company and Union Bank of California, N.A. The Company received net proceeds from the sale of the Notes of approximately $196.2 million.

     The Notes bear interest at a rate of 1.25% per annum, commencing on December 4, 2006. Interest on the Notes is payable semi-annually in arrears on December 15 and June 15 of each year, beginning on June 15, 2007. The notes will mature on December 15, 2036 unless earlier redeemed, repurchased or converted.

     Holders may convert the Notes on or prior to the close of business on the scheduled trading day immediately preceding September 15, 2036 only under the following circumstances: (1) during any calendar quarter after the calendar quarter ending December 31, 2006, the closing sale price of the Company’s common stock for each of 20 or more trading days in a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter exceeds 120% of the conversion price then in effect, (2) during the five business days after any five consecutive trading day period in which the trading price per $1,000 principal amount of Notes for each day of that period was less than 98% of the product of the closing sale price of the Company’s common stock and the then applicable conversion rate, (3) if the Notes have been called for redemption, or (4) if specified corporate events described in the Indenture occur.

     In addition, holders may convert their Notes at any time on or after September 15, 2036 until the close of business on the scheduled trading day immediately preceding the maturity date for the Notes.

     Upon conversion, holders of Notes will receive cash and, if applicable, shares of the Company’s common stock, based on the sum of the “daily settlement amounts” described in the Indenture for the 10 consecutive trading day period that begins on the second trading day after the relevant conversion date.

     The initial conversion rate for the Notes, subject to adjustment, is 24.5525 shares of the Company’s common stock per $1,000 principal amount of Notes (which represents an initial conversion price of approximately $40.73 per share of the Company’s common stock). A holder that surrenders Notes for conversion in connection with a fundamental change, as defined in the Indenture, that occurs before December 15, 2013, may in certain circumstances be entitled to an increased conversion rate.

     On or after December 19, 2013, the Company may at any time, redeem the Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus any accrued and unpaid interest.

     On each of December 15, 2013, December 15, 2016, December 15, 2021, December 15, 2026 and December 15, 2031, holders of the Notes may require the Company to purchase all or a portion of their

Notes at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus any accrued and unpaid interest. Holders may also require the Company to repurchase all or a portion of their Notes upon a fundamental change, as defined in the Indenture, at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest.

     The Notes are senior subordinated obligations of the Company and are subordinated to all of the Company’s existing and future senior indebtedness and effectively subordinated to all debt and other liabilities of the Company’s subsidiaries. The Notes are pari passu in right of payment with the Company’s 6 7/8% Senior Subordinated Notes due 2014 and its 1 3/4% Convertible Senior Subordinated Notes due 2033.

     Copies of the Underwriting Agreement and the Indenture, which includes the form Note as an exhibit thereto, are filed with this Current Report as Exhibit 1.1 and Exhibit 10.1, respectively, and are incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

     The information set forth above in response to Item 1.01 with respect to the Indenture and the Notes is incorporated by reference into this Item 2.03.

Item 8.01. Other Events

     In connection with the issuance and sale by the Company of the Notes, as described in response to Item 1.01 of this Current Report, the following exhibits are filed with this Current Report and are incorporated by reference into the Company’s Registration Statement (Registration No. 333-138964) relating to the Notes: (i) the Underwriting Agreement (Exhibit 1.1 to this Current Report); and (ii) certain information relating to Part II, Item 14. “Other Expenses of Issuance and Distribution” of the Registration Statement (Exhibit 99.1 to this Current Report).

Item 9.01 Financial Statements and Exhibits

(d)

Exhibits

Exhibit
Number		Description of Exhibits
1.1		Underwriting Agreement, dated November 28, 2006, by and among AGCO Corporation, Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., as representatives of the underwriters named therein
10.1		Indenture dated December 4, 2006, between AGCO Corporation and Union Bank of California, N.A., as trustee
99.1		Information relating to Part II, Item 14. “Other Expenses of Issuance and Distribution” of the Registration Statement (Registration No. 333-138964)

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

EXHIBIT INDEX

Exhibit
Number		Description of Exhibits
1.1		Underwriting Agreement, dated November 28, 2006, by and among AGCO Corporation, Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co., as representatives of the underwriters named therein
10.1		Indenture dated December 4, 2006, between AGCO Corporation and Union Bank of California, N.A., as trustee
99.1		Information relating to Part II, Item 14. “Other Expenses of Issuance and Distribution” of the Registration Statement (Registration No. 333-138964)

Exhibit 1.1

$175,000,000

AGCO CORPORATION

1.25% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2036

UNDERWRITING AGREEMENT

November 28, 2006

November 28, 2006

Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Rabo Securities USA, Inc.
Lazard Capital Markets LLC

c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036

Ladies and Gentlemen:

     AGCO Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you are acting as managers (the “Managers”), the principal amount of its debt securities identified in Schedule II hereto (the “Firm Securities”), to be issued under the indenture specified in Schedule II hereto (the “Indenture”) between the Company and the Trustee identified in such Schedule (the “Trustee”). The Company also proposes to issue and sell to the several Underwriters up to the principal amount of its debt securities set forth in Schedule II hereto (the “Additional Securities”) if and to the extent that you, as Managers of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such debt securities granted to the Underwriters in Section 2 hereof. The Firm Securities and the Additional Securities are hereinafter collectively referred to as the “Securities.” The Securities will be convertible into cash and shares of Common Stock, par value $0.01 per share, of the Company (the “Underlying Securities”), together with the rights (the “Rights”) evidenced by such Underlying Securities, to the extent provided in the Rights Agreement dated April 27, 1994, as amended as of March 1, 1999 and April 23, 2004 (the “Rights Agreement”), between the Company and SunTrust Bank, successor to Trust Company Bank and Chemical Bank, as rights agent. If the firm or firms listed in Schedule I hereto include only the Managers listed in Schedule II hereto, then the terms “Underwriters” and “Managers” as used herein shall each be deemed to refer to such firm or firms.

     The Company has filed with the Securities and Exchange Commission (the “Commission”) two registration statements, including in each case a prospectus, on Form S-3 (the file numbers of which are set forth in Schedule II hereto), relating to securities of the Company (the “Shelf Securities”), including the Securities and the Underlying Securities, to be issued from time to time by the Company. Such registration statements as amended to the date of this Agreement, including the information (if any) deemed to be part of such registration statements at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), are hereinafter

referred to collectively as the “Registration Statement”, and the related prospectus covering the Shelf Securities dated November 27, 2006 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the Prospectus.” The term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus” means the preliminary prospectus together with the free writing prospectuses, if any, each identified in Schedule II hereto. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Time of Sale Prospectus, any preliminary prospectus or any free writing prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.

     1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that:

     (a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and, to the knowledge of the Company, no proceedings for such purpose are pending before or threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.

     (b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date

hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not contain, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each issuer free writing prospectus (as defined in Rule 433(h) under the Securities Act), if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus does not contain, and as amended or supplemented, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through the Managers expressly for use therein.

     (c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder and does not and will not conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus. Except for the free writing prospectuses, if any, identified in Schedule II hereto forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.

     (d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the

corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing (to the extent that good standing is a concept recognized by such jurisdiction) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.

     (e) Each subsidiary of the Company has been duly incorporated or organized, is validly existing as a corporation or other entity in good standing under the laws of the jurisdiction of its incorporation or organization, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.

     (f) This Agreement has been duly authorized, executed and delivered by the Company.

     (g) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and equitable principles of general applicability, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) (collectively, the “enforceability exceptions”), and will be entitled to the benefits of the Indenture.

     (h) The Underlying Securities issuable upon conversion of the Securities have been duly authorized and reserved and, when issued upon conversion of the Securities in accordance with the terms of the Securities, will be validly issued, fully paid and non-assessable, and the issuance of the Underlying Securities will not be subject to any preemptive or similar rights.

     (i) The Indenture has been duly authorized, executed and delivered by, and, assuming the due authorization, execution and delivery thereof by the other parties thereto, is a valid and binding agreement of, the Company,

enforceable against the Company in accordance with its terms, subject to the enforceability exceptions.

     (j) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Securities, except such consents received prior to the date hereof and such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities.

     (k) Subsequent to the respective dates as of which information is given in the Time of Sale Prospectus, there has not occurred any material adverse change, or any development that might reasonably be expected to result in a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.

     (l) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings which, if determined adversely to the Company or any of its subsidiaries, would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus.

     (m) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.

     (n) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“environmental laws”), (ii) have received all permits, licenses or other approvals required of them under applicable environmental laws to conduct their respective businesses and (iii) are

in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with environmental laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.

     (o) Other than as disclosed by the Company in its filings with the Commission, the Company and its subsidiaries are conducting business in compliance with all other applicable statutes, rules, regulations, standards, guides and orders administered or issued by any governmental or regulatory authority in the jurisdictions in which the Company or its subsidiaries are conducting business, except where the failure to be so in compliance would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.

     (p) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material to the Company and its subsidiaries, taken as a whole; and (ii) except for regular dividends on the Common Stock of the Company in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.

     (q) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

     (r) The Company and each of its subsidiaries maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms.

     (s) The Company and each of its subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any

differences. Except as described in the Time of Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.

     (t) KPMG LLP, who have certified certain financial statements of the Company and its subsidiaries, are the independent registered public accounting firm for the Company as required by the Exchange Act and the rules and regulations of the Commission thereunder.

     2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Firm Securities set forth in Schedule I hereto opposite its name at the purchase price set forth in Schedule II hereto (the “Purchase Price”).

     On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriters the Additional Securities, and the Underwriters shall have the right to purchase, severally and not jointly, up to the aggregate principal amount of Additional Securities set forth in Schedule II hereto at the Purchase Price. You may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the aggregate principal amount of Additional Securities to be purchased by the Underwriters and the date on which such Securities are to be purchased. Each purchase date must be at least one business day, if written notice is given prior to the closing date for the Firm Securities, or two business days, if written notice is given on or after the closing date for the Firm Securities, in each case, after the written notice is given and may not be earlier than the closing date for the Firm Securities nor later than ten business days after the date of such notice. Additional Securities may be purchased as provided in Section 4 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Securities. On each day, if any, that Additional Securities are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the principal amount of Additional Securities (subject to such adjustments to eliminate fractional Securities as you may determine) that bears the same proportion to the total aggregate principal amount of Additional Securities to be purchased on such Option Closing Date as the principal amount of Firm Securities set forth in Schedule I hereto opposite the name of such Underwriter bears to the total aggregate principal amount of Firm Securities.

     3. Public Offering. The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Company is further advised by you that the Securities are to be offered to the public upon the terms set forth in the Prospectus and in Schedule II hereto.

     4. Payment and Delivery. Payment for the Firm Securities shall be made to the Company in Federal or other funds immediately available in New York City on the closing date and time set forth in Schedule II hereto, or at such other time on the same or such other date, not later than the fifth business day thereafter, as may be designated in writing by you. The time and date of such payment are hereinafter referred to as the “Closing Date.”

     Payment for any Additional Securities shall be made to the Company in Federal or other funds immediately available in New York City on the date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event not later than the tenth business day thereafter, as may be designated in writing by you.

     The Firm Securities and the Additional Securities shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment of the Purchase Price therefor.

     5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:

     (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:

     (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and

     (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus provided to prospective purchasers of the Securities (exclusive

of any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.

     (b) The Underwriters shall have received on the Closing Date a certificate of the Company, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.

     The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.

     (c) The Underwriters shall have received on the Closing Date an opinion of Troutman Sanders LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A-1. Such opinion shall be rendered to the Underwriters at the request of the Company and shall so state therein.

     (d) The Underwriters shall have received on the Closing Date an opinion of Stephen Lupton, General Counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A-2. Such opinion shall be rendered to the Underwriters at the request of the Company and shall so state.

     (e) The Underwriters shall have received on the Closing Date an opinion of Alston & Bird LLP, counsel for the Underwriters, dated the Closing Date, in form and substance satisfactory to the Managers.

     (f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from KPMG LLP, an independent registered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.

     (g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between you and certain officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.

     The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Additional Securities.

     6. Covenants of the Company. The Company covenants with each Underwriter as follows:

     (a) To furnish to you, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to deliver to each of the Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.

     (b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus during the period mentioned in Section 6(e) or 6(f) below, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object.

     (c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.

     (d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

     (e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of

Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.

     (f) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.

     (g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.

     (h) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.

     (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required

by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees incurred in connection with any review and qualification of the offering of the Securities by the National Association of Securities Dealers, Inc., (v) all costs and expenses incident to listing the Underlying Securities on the New York Stock Exchange and any other national securities exchanges and foreign stock exchanges, (vi) the cost of printing certificates representing the Securities, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered with the prior approval of the Company in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.

     (j) To prepare a final term sheet relating to the offering of the Securities containing only information that describes the final terms of the offering in a form reasonably acceptable to the Managers and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.

     The Company also covenants with each Underwriter that, without the prior written consent of the Manager identified in Schedule II with the authorization to release this lock-up on behalf of the Underwriters, it will not,

during the restricted period set forth in Schedule II hereto, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the Securities to be sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof or (c) the issuance by the Company of additional awards under the Company’s existing equity compensation plans, provided that such awards do not vest or become exercisable during the period ending 90 days after the date of the Prospectus Supplement.

     7. Representation and Covenant of the Underwriters. Each Underwriter severally represents and covenants with the Company that, other than one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of the Securities, it has not taken and will not take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.

     8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use therein.

     (b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by or on behalf of any Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or supplement thereto.

     (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Manager authorized to appoint counsel under this Section set forth in Schedule II hereto, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the

indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.

     (d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate initial public offering price of the Securities set forth in the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective principal amount of Securities they have purchased hereunder, and not joint.

     (e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.

Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

     (f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.

     9. Termination. The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.

     10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

     If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters

agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Securities set forth opposite their respective names in Schedule I bears to the aggregate principal amount of Firm Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Securities and the aggregate principal amount of Firm Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Firm Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Securities and the aggregate principal amount of Additional Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Additional Securities to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Securities to be sold on such Option Closing Date or (ii) purchase not less than the principal amount of Additional Securities that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

     If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.

     11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.

     (b) The Company acknowledges that in connection with the offering of the Securities: (i) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.

     12. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

     13. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

     14. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

     15. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in Schedule II hereto; and if to the Company shall be delivered, mailed or sent to the address set forth in Schedule II hereto.

Accepted as of the date hereof
Morgan Stanley & Co. Incorporated Goldman, Sachs & Co. Rabo Securities USA, Inc. Lazard Capital Markets LLC
Acting severally on behalf of themselves      and the several Underwriters named      in Schedule I hereto.
Morgan Stanley & Co. Incorporated
By:		/s/ Kenneth G. Pott
		Name: Kenneth G. Pott Title:   Managing Director

SCHEDULE I

		Principal Amount of Firm Securities To
Underwriter		Be Purchased
Morgan Stanley & Co. Incorporated		$	83,125,000
Goldman, Sachs & Co.			83,125,000
Rabo Securities USA, Inc.			4,375,000
Lazard Capital Markets LLC			4,375,000
Total:		$	175,000,000

SCHEDULE II

Managers:		Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. Rabo Securities USA, Inc. Lazard Capital Markets LLC
Manager authorized to release lock-up under Section 6:		Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. must both agree to the release
Manager authorized to appoint counsel under Section 8(c):		Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co. must both agree to the appointment
Registration Statement File Nos.:		333-104352 and 333-138964
Time of Sale Prospectus		1. Preliminary Prospectus dated November 27, 2006 relating to the Shelf Securities
		2. Final term sheet for the Securities
Lock-up Restricted Period:		90 days
Title of Securities to be purchased:		1.25% Convertible Senior Subordinated Notes Due 2036
Principal Amount of Firm Securities:		$175,000,000
Principal Amount of Additional Securities:		$26,250,000
Purchase Price:		97.625% of the principal amount of the Securities plus accrued interest, if any, from December 4, 2006
Initial Public Offering Price:		100% of the principal amount of the Securities plus accrued interest, if any, from December 4, 2006
Indenture		Indenture dated December 4, 2006 between the Company and the Trustee

Trustee		Union Bank of California
Closing Date and Time:		December 4, 2006 at 10:00 a.m. (New York City time)
Closing Location:		Alston & Bird LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3434
Address for Notices to Underwriters:		Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Attention: Convertible Syndicate Desk with a copy to the Legal Department
		Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Attention: Syndicate Desk
		Rabo Securities USA, Inc. 245 Park Avenue New York, New York 10022
		Lazard Capital Markets LLC 30 Rockefeller Plaza New York, New York 10020
Address for Notices to the Company:		4205 River Green Parkway Duluth, Georgia 30096 Attention: Chief Financial Officer with a copy to the General Counsel

AGCO CORPORATION

as Issuer,

and

UNION BANK OF CALIFORNIA, N.A.

as Trustee

INDENTURE

Dated as of

December 4, 2006

1.25% Convertible Senior Subordinated Notes due 2036

CROSS-REFERENCE TABLE

TIA Sections				Indenture Sections
§ 310		(a)(1)		7.09
		(a)(2)		7.09
		(a)(3)		N.A.
		(a)(4)		N.A.
		(a)(5)		7.09
		(b)		7.08, 7.10
		(c)		N.A.
§ 311		(a)		7.13
		(b)		7.13
		(c)		N.A.
§ 312		(a)		5.01, 5.02(a)
		(b)		5.02(b)
		(c)		5.02(c)
§ 313		(a)		5.03(a)
		(b)		5.03(a)
		(c)		5.03(a), 16.03
		(d)		5.03(b)
§ 314		(a)		5.04
		(b)		N.A.
		(c)(1)		16.05
		(c)(2)		16.05
		(c)(3)		N.A.
		(d)		N.A.
		(e)		16.05
§ 315		(a)		7.01, 7.03(a)
		(b)		7.02, 7.04(i)
		(c)		7.01
		(d)		7.01
		(e)		6.08
§ 316		(a)(last sentence)		8.04
		(a)(1)(A)		6.07
		(a)(1)(B)		6.07
		(a)(2)		N.A.
		(b)		6.04

TIA Sections				Indenture Sections
		(c)		8.01
§ 317		(a)(1)		6.02
		(a)(2)		6.02
		(b)		4.04(a)(1), (2)
§ 318		(a)		16.07

          Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of this Indenture.

TABLE OF CONTENTS

		Page
ARTICLE I
1.25% Convertible Senior Subordinated Notes Due 2036
Section 1.01. Establishment			1
Section 1.02. Definitions			2
ARTICLE II
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01. Designation, Amount and Issue of Notes			12
Section 2.02. Form of Notes; Execution and Authentication of Notes			13
Section 2.03. Date and Denomination of Notes; Payments of Interest			13
Section 2.04. Exchange and Registration of Transfer of Notes			15
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes			17
Section 2.06. Temporary Notes			17
Section 2.07. Cancellation of Notes			17
Section 2.08. CUSIP Numbers			18
ARTICLE III
Redemption and Repurchase of Notes
Section 3.01. Redemption of Notes at the Option of the Company			18
Section 3.02. Notice of Optional Redemption; Selection of Notes			18
Section 3.03. Payment of Notes Called for Redemption by the Company			20
Section 3.04. Conversion Arrangement on Call for Redemption			20
Section 3.05. Repurchase at Option of Holders upon a Designated Event.			21
Section 3.06. Repurchase of Notes by the Company at Option of the Holder			23
Section 3.07. Procedures for the Repurchase of Notes.			24
Section 3.08. Deposit of Purchase Price			25
Section 3.09. Notes Repurchased in Part			25
Section 3.10. Repayment to the Company			26
Section 3.11. Effect of Election and Repurchase Notice			26
ARTICLE IV
Particular Covenants of the Company
Section 4.01. Payment of Principal, Premium and Interest			27
Section 4.02. Maintenance of Office or Agency			27
Section 4.03. Appointments to Fill Vacancies in Trustee’s Office			27
Section 4.04. Provisions as to Paying Agent			28
Section 4.05. Existence			29
Section 4.06. Maintenance of Properties			29
Section 4.07. Payment of Taxes and Other Claims			29

		Page
Section 4.08. Rule 144A Information Requirement			29
Section 4.09. Stay, Extension and Usury Laws			30
Section 4.10. Compliance Certificate; Notice of Default			30
ARTICLE V
Noteholders’ Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Names and Addresses of Noteholders			30
Section 5.02. Preservation and Disclosure of Lists.			31
Section 5.03. Reports by Trustee.			31
Section 5.04. Reports by Company			31
ARTICLE VI
Remedies of the Trustee and Noteholders on Event of Default
Section 6.01. Events of Default; Acceleration			32
Section 6.02. Payments of Notes on Default; Suit Therefor			35
Section 6.03. Application of Monies Collected by Trustee			37
Section 6.04. Proceedings by Noteholder			37
Section 6.05. Proceedings by Trustee			38
Section 6.06. Remedies Cumulative and Continuing			38
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders			39
Section 6.08. Undertaking to Pay Costs			39
ARTICLE VII
The Trustee
Section 7.01. Certain Duties and Responsibilities			40
Section 7.02. Notice of Defaults			40
Section 7.03. Certain Rights of the Trustee			40
Section 7.04. Not Responsible for Statements or Issuance of Notes			42
Section 7.05. May Hold Notes			42
Section 7.06. Monies to be Held in Trust			42
Section 7.07. Compensation and Reimbursement			42
Section 7.08. Disqualification; Conflicting Interests			43
Section 7.09. Corporate Trustee Required; Eligibility			43
Section 7.10. Resignation and Removal of Trustee; Appointment of Successor.			43
Section 7.11. Acceptance of Appointment of Successor			44
Section 7.12. Merger, Conversion, Consolidation or Succession to Business			45
Section 7.13. Preferential Collection of Claims Against Company			45
ARTICLE VIII
The Noteholders
Section 8.01. Action by Noteholders			45
Section 8.02. Proof of Execution by Noteholders			46

		Page
Section 8.03. Who Are Deemed Absolute Owners			46
Section 8.04. Company-Owned Notes Disregarded			46
Section 8.05. Revocation of Consents, Future Holders Bound			46
ARTICLE IX
Meetings of Noteholders
Section 9.01. Purpose of Meetings			47
Section 9.02. Call of Meetings by Trustee			47
Section 9.03. Call of Meetings by Company or Noteholders			48
Section 9.04. Qualifications for Voting			48
Section 9.05. Regulations			48
Section 9.06. Voting			49
Section 9.07. No Delay of Rights by Meeting			49
ARTICLE X
Supplemental Indentures
Section 10.01. Supplemental Indentures With the Consent of Noteholders			49
Section 10.02. Supplemental Indenture Without Consent of Noteholders			50
Section 10.03. Effect of Supplemental Indenture			51
Section 10.04. Notation on Notes			51
Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee			51
ARTICLE XI
Merger, Consolidation, Etc.
Section 11.01. Mergers, Consolidations and Certain Transfers, Leases and Acquisitions of Assets			52
Section 11.02. Successor to Be Substituted			52
Section 11.03. Opinion of Counsel to Be Given Trustee			52
ARTICLE XII
Satisfaction and Discharge of Indenture
Section 12.01. Discharge of Indenture			52
Section 12.02. Deposited Monies to Be Held in Trust by Trustee			53
Section 12.03. Paying Agent to Repay Monies Held			54
Section 12.04. Return of Unclaimed Monies			54
Section 12.05. Reinstatement			54

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ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. Indenture and Notes Solely Corporate Obligations			54
ARTICLE XIV
Conversion of Notes
Section 14.01. Right to Convert			55
Section 14.02. Conversion Procedures			57
Section 14.03. Cash Payments in Lieu of Fractional Shares			59
Section 14.04. Conversion Rate; Settlement Upon Conversion			59
Section 14.05. Adjustment of Conversion Rate			60
Section 14.06. Effect of Fundamental Change, Reclassification, Consolidation, Merger or Sale			69
Section 14.07. Taxes on Shares Issued			71
Section 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock			72
Section 14.09. Responsibility of Trustee			72
Section 14.10. Notice to Holders Prior to Certain Actions			73
Section 14.11. Rights Issued in Respect of Common Stock Issued upon Conversion			74
ARTICLE XV
Subordination of Notes
Section 15.01. Notes Subordinated to Senior Indebtedness			74
Section 15.02. No Payment on Notes in Certain Circumstances.			74
Section 15.03. Payment over Proceeds upon Dissolution Etc.			76
Section 15.04. Subrogation.			77
Section 15.05. Obligations of Company Unconditional.			78
Section 15.06. Notice to Trustee.			78
Section 15.07. Reliance on Judicial Order or Certificate of Liquidating Agent.			79
Section 15.08. Trustee’s Relation to Senior Indebtedness.			79
Section 15.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Indebtedness.			80
Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Notes.			80
Section 15.11. Not to Prevent Events of Default.			80
Section 15.12. Trustee’s Compensation Not Prejudiced.			80
Section 15.13. No Waiver of Subordination Provisions.			80
Section 15.14. Payments May Be Paid Prior to Dissolution.			81
Section 15.15. Consent of Holders of Senior Indebtedness Under the Bank Credit Agreement.			81
Section 15.16. Trust Moneys Not Subordinated.			81

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ARTICLE XVI
Miscellaneous
Section 16.01. Provisions Binding on Company’s Successors				81
Section 16.02. Addresses for Notices, Etc.				81
Section 16.03. Governing Law; Waiver of Jury Trial				82
Section 16.04. Evidence of Compliance with Conditions Precedent, Certificates to Trustee				82
Section 16.05. Legal Holidays				82
Section 16.06. Trust Indenture Act				83
Section 16.07. No Security Interest Created				83
Section 16.08. Benefits of Indenture				83
Section 16.09. Table of Contents, Headings, Etc.				83
Section 16.10. Authenticating Agent				83
Section 16.11. Official Acts by Successor Corporation				84
Section 16.12. Severability				84
Section 16.13. Force Majeure				84
Exhibit A            Form of Note			A-1
Exhibit B            Trustee’s Certificate of Authentication			B-1
Exhibit C            Table of Additional Shares in Event of Fundamental Change			C-1

INDENTURE

          INDENTURE dated as of December 4, 2006 between AGCO Corporation, a Delaware corporation (hereinafter called the “Company”), and Union Bank of California, N.A., a national banking association, as trustee hereunder (hereinafter called the “Trustee”).

WITNESSETH:

          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its 1.25% Convertible Senior Subordinated Notes due 2036 (hereinafter called the “Notes”), in an aggregate principal amount not to exceed $201,250,000 on the date hereof, and, to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;

          WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, a form of assignment, a form of option to elect redemption upon a fundamental change, a form of purchase notice, and a form of conversion notice to be borne by the Notes are to be substantially in the forms hereinafter provided for;

          WHEREAS, all acts and things necessary to duly authorize the issuance of the Common Stock issuable upon the conversion of the Notes, and to duly reserve for issuance the number of shares of Common Stock issuable upon such conversion, have been done and performed; and

          WHEREAS, all acts and 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 this Indenture provided, the valid, binding and legal obligations of the Company, and to constitute this Indenture a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized.

          NOW, THEREFORE, THIS INDENTURE WITNESSETH:

          That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit of the respective holders from time to time of the Notes (except as otherwise provided below), as follows:

ARTICLE I
1.25% Convertible Senior Subordinated Notes Due 2036

          Section 1.01. Establishment. There is hereby established a new series of Notes to be issued under this Indenture, to be designated as the Company’s 1.25% Convertible Senior Subordinated Notes due 2036. There are to be initially authenticated and delivered up to $201,250,000 principal amount of the Notes. The Notes shall be issued in fully registered form without coupons.

          The payment of obligations of the Company under the Notes shall be subordinated to the Company’s Senior Indebtedness, including the obligations of the Company under the Bank Credit Agreement and shall rank pari passu with the obligations of the Company under the Senior Subordinated Notes.

          The Notes shall be in substantially the form set out in Exhibit A hereto, and the form of the Trustee’s Certificate of Authentication for the Notes shall be in substantially the form set forth in Exhibit B hereto. Each Note shall be dated the date of authentication thereof and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto.

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

          “Additional Notes” has the meaning specified in Section 2.01.

          “Additional Shares” has the meaning specified in Section 14.06(a).

          “Adjustment Determination Date” has the meaning specified in Section 14.05(i).

          “Agent Members” has the meaning specified in Section 2.04(b)(v).

          “Administrative Agent” has the meaning specified in Section 15.02(b).

          “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

          “Bank Credit Agreement” means the credit agreement dated December 22, 2003, as amended, among the Company, certain of its subsidiaries named therein, the lenders named therein, SunTrust Bank and Morgan Stanley Senior Funding, Inc., as Co-Syndication Agents; Cobank, ACB and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as Co-Documentation Agents; Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland,” Canadian Branch, as Canadian administrative agent, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland,” New York Branch, as administrative agent, together with all agreements, instruments and documents executed or delivered pursuant thereto or in connection therewith, in each case as such agreements, documents or instruments may be amended, supplemented, extended, renewed, replaced or otherwise modified from time to time.

          “Company” means the corporation named as the “Company” in the first paragraph hereof, and, subject to the provisions of Article XI and Section 14.06 hereof, shall include its successors and assigns.

          “Company Repurchase Notice” has the meaning specified in Section 3.07(c).

          “Company Repurchase Notice Date” has the meaning specified in Section 3.07(b).

          “Conversion Agent” means the Trustee or any other Person appointed by the Company to accept Notes presented for conversion.

          “Company’s SEC filing obligations” has the meaning specified in Section 6.01.

          “Conversion Date” has the meaning specified in Section 14.02.

          “Conversion Notice” has the meaning specified in Section 14.02.

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

          “Conversion Rate” has the meaning specified in Section 14.04.

          “Corporate Trust Office” means the designated office of the Trustee, in the Borough of Manhattan, The City of New York, which office is at the date hereof located at 551 Madison Avenue, 11th Floor, New York, New York 10022.

          “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

          “Daily Conversion Value” means, for each of the ten (10) consecutive Trading Days during the applicable Observation Period, 1/10 of the product of (1) the applicable Conversion Rate for each $1,000 principal amount of Notes and (2) the Daily VWAP of the Common Stock, or the consideration into which the Common Stock has been converted in connection with certain corporate transactions, on such day. Any such determination by the Company shall be conclusive absent manifest error.

          “Daily Settlement Amount” means, for each of the ten (10) Trading Days during the Observation Period:

          (i) cash equal to the lesser of (x) $100 (such amount being the principal portion) and (y) the Daily Conversion Value relating to such day; and

          (ii) if such Daily Conversion Value exceeds $100, a number of shares of Common Stock equal to (A) the difference between such Daily Conversion Value and $100, divided by (B) the Daily VWAP of the Common Stock for such day (the “Deliverable Stock”).

Any such determination by the Company will be conclusive absent manifest error.

          "Daily VWAP” for the Common Stock means, for each of the ten (10) consecutive trading days during the applicable Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page AG <equity> AQR (or any successor page) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such trading day, or if such volume-weighted average price is unavailable, the market value of one share of our common stock on such trading day as the Board of Directors determines in good faith using a volume-weighted method.

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

          “Defaulted Interest” has the meaning specified in Section 2.03.

          “Deliverable Stock” has the meaning specified in “Daily Settlement Amount” above.

          “Depositary” means the clearing agency registered under the Exchange Act that is designated to act as the Depositary for the Global Notes. The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.

          “Designated Event” means the occurrence of a Fundamental Change or a Termination of Trading.

          “Designated Event Expiration Time” has the meaning specified in Section 3.05(b).

          “Designated Event Notice” has the meaning specified in Section 3.05(b).

          “Designated Event Repurchase Date” has the meaning specified in Section 3.05(a).

          “Designated Senior Indebtedness” means (i) indebtedness and all other monetary obligations (including expenses, fees and other monetary obligations) under the Bank Credit Agreement and (ii) any other indebtedness constituting Senior Indebtedness that, at any date of determination, has an aggregate principal amount of at least $25 million and is specifically designated by the Company in the instrument creating or evidencing such Senior Indebtedness as “Designated Senior Indebtedness.”

          “Distributed Property” has the meaning specified in Section 14.05(c).

          “Effective Date” has the meaning specified in Section 14.06(a).

          “Events of Default” means any event specified in Section 6.01 as an Event of Default.

          "Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

          "ex-date” has the meaning specified in Section 14.01(b).

          "Ex-Dividend Time” has the meaning specified in Section 14.01(b).

          "Fair Market Value” has the meaning specified in Section 14.01(b).

          "Fundamental Change” will be deemed to have occurred at the time after the Notes are originally issued that any of the following occurs:

     (1) any Person, including any syndicate or group deemed to be a person under Section 13(d)(3) of the Exchange Act, acquires beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of transactions, of shares of the Company’s capital stock entitling the person to exercise 50% or more of the total voting power of all shares of the Company’s capital stock entitled to vote generally in elections of directors, other than an acquisition by the Company, any of the Company’s Subsidiaries or any of the Company’s employee benefit plans;

     (2) the Company merges or consolidates with or into any other Person (other than a Subsidiary), another Person merges with or into the Company, or the Company conveys, sells, transfers or leases all or substantially all of the Company’s assets to another Person, other than any transaction:

	•		that does not result in a reclassification, conversion, exchange or cancellation of Company’s outstanding Common Stock;
	•		pursuant to which the holders of the Company’s Common Stock immediately prior to the transaction have the entitlement to exercise, directly or indirectly, 50% or more of the voting power of all shares of capital stock entitled to vote generally in the election of directors of the continuing or surviving corporation immediately after the transaction; or
	•		which is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Company’s Common Stock solely into shares of common stock of the surviving entity.

          “GAAP” means United States generally accepted accounting principles.

          “Global Note” has the meaning specified in Section 2.02.

          “Indebtedness” as applied to any Person, means (i) obligations, contingent or otherwise, for money borrowed (other than unamortized debt discount or premium); (ii) reimbursement and other obligations pertaining to letters of credit issued for the account of such Person; (iii) obligations under any swap, Cap, collar, forward purchase contract, derivatives contract or other similar agreement pursuant to which such Person hedges risks related to interest rates, currency exchange rates, commodity prices, financial market conditions or other risks incurred by such Person in the operation of its business; (iv) obligations evidenced by bonds, debentures, promissory notes or other instruments or arrangements; (v) obligations as lessee under a capital lease; and (vi) obligations of such Person under any amendments, renewals, extensions, modifications and refundings of any such Indebtedness or obligations listed in clause (i), (ii), (iii), (iv) or (v) above. All indebtedness of any type described in the immediately preceding sentence which is secured by a lien upon property owned by such Person, although such Person has not assumed or become liable for the payments of such Indebtedness, shall for all purposes be deemed to be Indebtedness of such Person. All indebtedness for borrowed money incurred by any other Person which is directly guaranteed as to payment of principal by such Person shall for all purposes be deemed to be Indebtedness of such Person, but no other contingent obligation of such Person in respect of indebtedness incurred by any other Persons shall for any purpose be deemed to be indebtedness of such Person.

          “Indenture” has the meaning specified in the recitals hereof.

          “interest” means any interest payable under the terms of the Notes.

          “Merger Events” has the meaning specified in Section 14.06(b).

          “Note register” has the meaning specified in Section 2.04(a).

          “Note registrar” has the meaning specified in Section 2.04(a).

          “Noteholder” or “holder” as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time a particular Note is registered on the Note registrar’s books.

          “Notes” has the meaning specified in Section 1.01.

          “Observation Period” means the ten (10) consecutive Trading Day period beginning on and including the second Trading Day after the related Conversion Date in respect of such Note.

          “Officer,” when used with respect to the Company, means the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the Chief Executive Officer, the President or a Vice President or the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company.

          “Officers’ Certificate” of the Company means a certificate signed by (i) the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the Chief Executive Officer, the President or a Vice President or the Chief Financial Officer, and by (ii) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, as the case may be, and delivered to the Trustee. Unless the context otherwise requires, each reference herein to an “Officers’ Certificate” shall mean an Officers’ Certificate of the Company. References herein, or in any Note, to any officer of a Person that is a partnership shall mean such officer of the partnership or, if none, of a general partner of the partnership authorized thereby to act on its behalf.

          “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel reasonably acceptable to the Trustee.

          “Optional Redemption” has the meaning specified in Section 3.01.

          “outstanding,” when used with reference to Notes and subject to the provisions of Section 8.04, means, as of any particular time, all Notes authenticated and delivered by the Trustee, except:

     (a) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

     (b) Notes, or portions thereof, (i) for the redemption of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or (ii) which shall have been otherwise discharged in accordance with Article XII;

     (c) Notes paid pursuant to Section 2.05 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.05; and

     (d) Notes converted into Common Stock pursuant to the conversion provisions in Article XIV and Notes deemed not outstanding pursuant to the redemption and repurchase provisions of Article III.

          “Payment Blockage Period” has the meaning specified in Section 15.02(b).

          “Person” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any government or political subdivision or any agency, department or instrumentality thereof.

          “premium” means any premium payable under the terms of the Notes.

          “record date” has the meaning specified in Section 2.03 with respect to any interest payment date, and for any other purpose means the record date established by the Company for a specified purpose.

          “Redemption Date” has the meaning specified in Section 3.02.

          “Reference Property” has the meaning specified in Section 14.06(c).

          “Repurchase Date” has the meaning specified in Section 3.06.

          “Repurchase Notice” has the meaning specified in Section 3.06(a).

          “Responsible Officer” means, with respect to the Trustee, any vice president, any assistant vice president, any assistant secretary, any assistant treasurer, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

          “Rights” has the meaning specified in Section 14.11.

          “Rights Agreement” has the meaning specified in Section 14.11.

          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time.

          “Senior Indebtedness” means the following obligations of the Company, whether outstanding on the date or thereafter incurred:

     (a) all indebtedness and all other monetary obligations (including, without limitation, expenses, fees, claims, indemnifications, reimbursements, liabilities and other monetary obligations and any obligation to deliver cash as collateral security for contingent reimbursement obligations in respect of outstanding letters of credit of the Company) under the Bank Credit Agreement, any interest rate agreement or currency agreement and the Company’s guarantee of any indebtedness or monetary obligation of any of its Subsidiaries under any interest rate agreement or currency agreement; and

     (b) all other indebtedness of the Company (other than the Notes and the Senior Subordinated Notes), including principal and interest on such indebtedness, unless such indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such indebtedness is issued, is pari passu with, or subordinated in right of payment to, the Notes;

     provided that the term “Senior Indebtedness” shall not include:

     (i) any indebtedness of the Company that, when incurred, and without respect to any election under Section 1111(b) of the United States Bankruptcy Code, was without recourse to the Company;

     (ii) any indebtedness of the Company that by its express terms is not senior to the Notes or is pari passu or junior to the Notes;

     (iii) any indebtedness of the Company to any of its Subsidiaries or to a joint venture in which the Company has an interest;

     (iv) any indebtedness of the Company permitted by the indentures governing the Senior Subordinated Notes;

     (v) any repurchase, redemption or other obligation in respect of Redeemable Stock (as defined in the indentures governing the Senior Subordinated Notes);

     (vi) any indebtedness of the Company to any employee, officer or director of the Company or any of its Subsidiaries;

     (vii) any liability for federal, state, local or other taxes owed or owing by the Company;

     (viii) any trade payables of the Company;

     (ix) the Senior Subordinated Notes; or

     (x) the Notes

          Senior Indebtedness will also include interest accruing subsequent to events of bankruptcy of the Company and its Subsidiaries at the rate provided for in the document

governing such Senior Indebtedness, whether or not such interest is an allowed claim enforceable against the debtor in a bankruptcy case under federal bankruptcy law or similar laws relating to insolvency. For purposes of clause (iv) of the immediately preceding proviso, a good faith determination by the Chief Financial Officer of the Company, evidenced by an Officer’s Certificate, that any indebtedness was permitted by the indentures governing the Senior Subordinated Notes shall be conclusive.

          “Senior Subordinated Notes” means the 6⁷/8% Senior Subordinated Notes due 2014 issued pursuant to the Indenture, dated as of April 23, 2004, among the Company and SunTrust Bank, as trustee, and the 1³/4% Convertible Senior Subordinated Notes due 2033 issued pursuant to the Indenture, dated December 23, 2003, among the Company and SunTrust Bank, as trustee, as supplemented by a First Supplemental Indenture, dated June 30, 2005, among the Company and SunTrust Bank, as trustee.

          “Significant Subsidiary” means any subsidiary of the Company that meets the definition of “significant subsidiary” in Section 1-02(w) of Regulation S-X.

          “Spin-Off” has the meaning specified in Section 14.05(c).

          “Stock Price” has the meaning specified in Section 14.06(a).

          "Stockholder Record Date” has the meaning specified in Section 14.05.

          "Subsidiary” of any Person means (i) any corporation more than 50% of whose stock of any class or classes having by the terms of such stock ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or by one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person and (ii) any partnership, association, limited liability company, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person has more than a 50% equity interest at the time.

          "Termination of Trading” means that the Common Stock, or other common stock into which the Notes are then convertible, is not listed for trading on a United States national securities exchange.

          "Trading Day” means a day during which trading in securities generally occurs on the New York Stock Exchange, or, if the shares of Common Stock are not then listed on the New York Stock Exchange, on another national or regional securities exchange on which the Common Stock is then listed or quoted or, if the Common Stock is not listed on the New York Stock Exchange or a national or regional securities exchange or automated quotation service, on the principal other market on which the Common Stock is then traded or quoted. If the Common Stock is not so traded or quoted, “trading day” means a Business Day.

          "Trading Price” means, on any date of determination, the average of the secondary market bid quotations for the Notes obtained by the Trustee for $2,000,000 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 (which may include any underwriters involved in the sale of the Notes); provided that if at least three such bids cannot reasonably be obtained by the Trustee, but two 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 Trustee, one bid shall be used; and provided further that if the Trustee cannot reasonably obtain at least one bid for $2,000,000 principal amount of Notes from a nationally recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Closing Sale Price and the Conversion Rate.

          "Trigger Event” has the meaning specified in Section 14.05(c).

          "Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of this Indenture; provided that if 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 Union Bank of California, N.A., a national banking association, and its successors and any corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party and any successor trustee at the time serving as successor trustee hereunder.

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

          Section 2.01. Designation, Amount and Issue of Notes. The Notes shall be designated as “1.25% Convertible Senior Subordinated Notes Due 2036”. The payment obligations of the Company under the Notes shall be subordinated to the Company’s Senior Indebtedness, including the obligations of the Company under the Bank Credit Agreement, and shall rank pari passu with the obligations of the Company under the Senior Subordinated Notes. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. Notes not to exceed the aggregate principal amount of $201,250,000 upon the execution of this Indenture may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief Executive Officer, President, Chief Financial Officer or any Vice President, without any further action by the Company hereunder. In addition, subject to the provisions of Section 16.04 but without the Consent of the Noteholders, an unlimited aggregate principal amount of additional Notes (the “Additional Notes”) may be executed after the date of this Indenture by the Company and delivered to the Trustee for authentication, and the Trustee shall, upon receipt of an Officers’ Certificate specifying the amount of Notes to be authenticated and the date on which such Notes are to be authenticated and certifying that all conditions precedent to the issuance of the Additional Notes contained herein have been complied with and that no default or Event of Default would occur as a result of the issuance of such Additional Notes, authenticate and deliver said Additional Notes to or upon the written order of the Company, signed as set forth in the preceding sentence; provided that Additional Notes may be issued under this Indenture only if such Additional Notes and the Notes constitute one series for United States Federal income tax purposes. The Notes and the Additional Notes, if any, shall constitute

one series for all purposes under this Indenture, including, without limitation, amendments, waivers and redemptions. The Company may also from time to time purchase the Notes in tender offers, open market purchases or negotiated transactions without prior notice to the Noteholders.

          Section 2.02. Form of Notes; Execution and Authentication of Notes. So long as the Notes are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.04(a), all of the Notes will be represented by one or more Notes in global form registered in the name of the Depositary or the nominee of the Depositary (a “Global Note”). The transfer and exchange of beneficial interests in any such Global Note shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary. Except as provided in such Section 2.04(a), beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered holders of such Global Note.

          Any Global Note shall represent such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a 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 written instructions given by the holder of such Notes in accordance with this Indenture. Payment of principal of and interest and premium, if any, on any Global Note shall be made to Depositary or its nominee as the registered owner and holder of such Global Note.

          The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief Executive Officer, President, Chief Financial Officer or any Vice President. The signature of any of these officers on the Notes may be manual or facsimile. Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 16.11), shall be entitled to the benefits or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits.

          In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company, and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the proper Officers of the Company, although at the date of the execution any such person was not such an Officer.

          Section 2.03. Date and Denomination of Notes; Payments of Interest. Subject to Section 2.02, the Notes shall be issuable in registered form without coupons in denominations of

including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

ARTICLE VI
Remedies of the Trustee and Noteholders on Event of Default

          Section 6.01. Events of Default; Acceleration. In case one or more of the following “Events of Default” (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing:

     (a) default in the payment of any installment of interest with respect to any of the Notes as and when the same shall become due and payable, and continuance of such default for a period of thirty (30) days, whether or not such payment is prohibited by the subordination provisions of Article XV; or

     (b) default in the payment of the principal of or premium, if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection with any redemption or repurchase, in each case pursuant to Article III hereof, by acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions of Article XV; or

     (c) failure on the part of the Company duly to observe or perform the covenants in Article XIV with respect to the Company’s obligations to convert the Notes into cash or a combination of cash and Common Stock, as applicable, upon exercise of a Noteholder’s conversion right or to observe and perform the covenants in Section 3.05 and Section 3.06 hereof (including failure on the part of the Company to issue a Designated Event Notice when due) or Article XI, whether or not such payment is prohibited by the subordination provisions of Article XV; or

     (d) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Notes or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after the date on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent (25%) in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04; or

     (e) the occurence under Indebtednes of the Company or any of its Subsidiaries with a principal amount then outstanding, individually or in the aggregate, of at least $10 million, whether such Indebtednes now exists or is hereafter incurred, of (i) an event of default that has caused the holder of such Indebtedness to accelerate the maturity of such Indebtedness and such Indebtedness has not been discharged in full or such acceleration recorded within thirty (30) days or (ii) the failure to make principal payment on

the final stated maturity thereof (after expiration of any applicable grace period) and such defaulted payment shall not have been made, waived or extended within 30 days; or

     (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

     (g) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or any Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of the property of the Company or any Significant Subsidiary, or ordering the winding up or liquidation of the affairs of the Company or any Significant Subsidiary, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 30 consecutive days; or

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

due, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action;

then, and in each and every such case (other than an Event of Default specified in 6.01(g) or 6.01(h) above that occurs with respect to the Company), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Noteholders) specifying the respective Event of Default and stating that it is a “notice of acceleration,” may declare the principal of and premium, if any, on all the Notes and the interest accrued thereon to be due and payable immediately, and upon receipt of such notice the same shall become and shall be immediately due and payable; provided that for so long as a Bank Credit Agreement is in effect, such declaration shall not become effective until the earlier of (i) five Business Days after receipt of the acceleration notice by the agent(s) under any outstanding Bank Credit Agreement and the Company and (ii) acceleration of the indebtedness under the Bank Credit Agreement. If an Event of Default specified in 6.01(g) or 6.01(h) above involving the Company occurs, the principal of all the Notes and the interest accrued, if any, thereon shall be immediately and automatically due and payable without necessity of further action. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all Notes and the principal of, and premium, if any, on any and all Notes which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Notes plus one percent (1%), to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 7.07, and if any and all defaults under this Indenture, other than the nonpayment of principal of, and premium, if any, and accrued interest on, Notes which shall have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and in every such case the holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. In accordance with Section 4.10, the Company shall notify in writing a Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any Event of Default or any event which, with notice or the lapse of time or both, would constitute an Event of Default.

          In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the holders of Notes, and the Trustee shall continue as though no such proceeding had been taken.

          Notwithstanding the foregoing, at the election of the Company, the sole remedy for an Event of Default specified in Section 6.01(d) relating to the failure by the Company to comply with Section 5.04 (the “Company’s SEC filing obligations”) and for any failure by the Company to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, shall for the first 60 days after the occurrence of such an Event of Default consist exclusively of the right to receive an extension fee on the Notes at an annual rate equal to 0.25% of the principal amount of the Notes. This extension fee will accrue on the Notes from and including the date on which an Event of Default relating to a failure to comply with the Company’s SEC filing obligations or the failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act first occurs to but not including the 60^th day thereafter (or such earlier date on which the Event of Default relating to such obligations shall have been cured or waived pursuant to Section 6.07). On such 60^th day (or earlier, if such Event of Default is cured or waived pursuant to Section 6.07 prior to such 60^th day), such additional interest will cease to accrue and, if such Event of Default has not been cured or waived pursuant to Section 6.07 prior to such 60^th day, then the Trustee or the holders of not less than 25% in principal amount of the Notes may declare the principal of and accrued and unpaid interest and additional interest on all such Notes to be due and payable immediately. This provision shall not affect the rights of Noteholders in the event of the occurrence of any other Event of Default. If the Company elects to pay the extension fee as the sole remedy for an Event of Default specified in Section 6.01(d) relating to the failure by the Company to comply with the Company’s SEC filing obligations and for any failure by the Company to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, the Company shall notify, in the manner provided for in Section 16.03, the Noteholders and the Trustee of such election at any time on or before the close of business on the date on which such Event of Default first occurs. If the extension fee is payable under this Section 6.01, the Company shall deliver to the Trustee a certificate to that effect stating the date on which additional 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 extension fee is payable. If the extension fee has been paid by the Company directly to the persons entitled to them, the Company shall deliver to the Trustee a certificate setting forth the particulars of such payment.

          Section 6.02. Payments of Notes on Default; Suit Therefor. The Company covenants that (a) in case default shall be made in the payment of any installment of interest upon any of the Notes as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made in the payment of the principal of or premium, if any, on any of the Notes as and when the same shall have become due and payable, whether at maturity of the Notes or in connection with any redemption or repurchase, by or under this Indenture or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Notes, the whole amount that then shall have become due and payable on all such Notes for principal, premium, if any, or interest, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest at the rate borne by the Notes, plus one percent (1%) and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other amounts due the Trustee under Section 7.07. Until such demand by the Trustee, the

then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for sixty 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.07 hereof; it being understood and intended, and being expressly covenanted by the taker and holder of every Note with every other taker and holder and the Trustee, that no one or more holders of Notes shall have any right in any manner whatever by virtue of or by reference to any provision to affect, disturb or prejudice the rights of any other holder of Notes, or to obtain or seek to obtain priority over or preference to any other such holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such holders), or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all holders of Notes (except as otherwise provided herein). For the protection and enforcement of this Section 6.04, each and every Noteholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.

          Notwithstanding any other provision and any provision of any Note, the right of any holder of any Note to receive payment of the principal of, and premium, if any (including the redemption or repurchase price upon redemption or repurchase pursuant to Article III hereof), and accrued interest on, such Note, on or after the respective due dates expressed in such Note or in the case of a redemption or repurchase, on the Redemption Date, the Repurchase Date of the Designated Event Repurchase Date, as the case may be, or to institute suit for the enforcement of any such payment on or after such respective dates against the Company shall not be impaired or affected without the consent of such holder.

          Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to enforce, its rights of conversion as provided herein.

          Section 6.05. Proceedings by Trustee. In case of an Event of Default, the Trustee may, in its discretion, but shall not be required to, proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.

          Section 6.06. Remedies Cumulative and Continuing. Except as provided in this Section 6.06, all powers and remedies given by this Article VI to the Trustee or to the Noteholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the Notes to exercise any right or power accruing upon any default or Event of Default occurring and continuing as aforesaid shall impair any such right or power, or

shall be construed to be a waiver of any such default or any acquiescence therein, and, subject to the provisions of Section 6.04 hereof, every power and remedy given by this Article VI or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Noteholders.

          Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee; provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action which is not inconsistent with such direction and (c) the Trustee may decline to take any action that the Trustee determines in its reasonable discretion would benefit some Noteholder to the detriment of other Noteholders or of the Trustee. The holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may, on behalf of the holders of all of the Notes, waive any past or existing default or Event of Default hereunder and its consequences except (i) a past or existing default in the payment of interest or premium, if any, on, or the principal of, the Notes (including in connection with an offer to purchase); provided however that holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration in accordance with Section 6.01 hereof, (ii) a failure by the Company to convert any Notes into cash and, if applicable, Common Stock, (iii) a default in the payment of the repurchase price pursuant to Article III hereof, or (iv) a default in respect of a covenant or any provision which under Article X cannot be modified or amended without the consent of the holders of each or all Notes then outstanding or affected thereby. Upon any such waiver, the Company, the Trustee and the holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been cured or waived as permitted by this Section 6.07, said default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing for every purpose; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.

          Section 6.08. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder of any Note by its, his or her acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.08 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of, or premium, if any, or interest on, any Note on

or after the due date expressed in such Note or to any suit for the enforcement of the right to convert any Note in accordance with the provisions of Article XIV.

ARTICLE VII
The Trustee

          Section 7.01. Certain Duties and Responsibilities. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01.

          Section 7.02. Notice of Defaults. Subject to the provisions of Section 7.03(i), the Trustee shall give the Noteholders notice of any default hereunder known to the Trustee as and to the extent provided by the Trust Indenture Act (as if such Act applied); provided, however, that except in the case of default in the payment of the principal of, or premium, if any, or interest on, any of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust committee of directors and/or Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Noteholders.

          Section 7.03. Certain Rights of the Trustee. Subject to the provisions of Section 7.01:

     (a) the Trustee may conclusively rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;

     (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;

     (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely conclusively upon an Officers’ Certificate as to such matter that is reasonably satisfactory to the Trustee;

     (d) the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses (including reasonable attorney’s fees and expenses) and liabilities which might be incurred by it in compliance with such request or direction; any permissive right or power available to the Trustee under this Indenture shall not be construed to be a mandatory duty or obligation;

     (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may, but shall not be required to, make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

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

     (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, in reliance on an Officers’ Certificate or otherwise, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture or for any action it takes or omits to take in accordance with the direction of the holders of a majority in principal amount of the outstanding Notes; in no event shall the Trustee be liable to any person for special, indirect, consequential or punitive damages or any damages for lost profits;

     (i) the Trustee shall not be deemed to have knowledge of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;

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

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

          Section 7.04. Not Responsible for Statements or Issuance of Notes. The statements contained herein and in the Notes, except in the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture and the Notes or any offering or registration documents related thereto. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds thereof.

          Section 7.05. May Hold Notes. The Trustee, any authentication agent, any paying agent, any Conversion Agent, any Note registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes, and, subject to Sections 7.08 and 7.13, may otherwise deal with the Company and any other obligor upon the Notes with the same rights it would have if it were not Trustee, authentication agent, paying agent, Conversion Agent or Note registrar.

          Section 7.06. Monies to be Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

          Section 7.07. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee, including the compensation described herein, for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses, including reasonable attorney’s fees and expenses, of defending itself against any claim (whether asserted by the Company, a Noteholder or any other Person) or liability, or of complying with any process served upon it or any of its officers, in connection with the exercise or performance of any of its powers or duties hereunder. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.

          The Trustee shall have a lien prior to the Notes as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 7.07, except with respect to funds held in trust for the benefit of the holders of particular Notes.

          When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(e) or 6.01(f), the expenses (including the reasonable charges

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and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.

          The provisions of this Section 7.07 shall survive the termination of this Indenture.

          Section 7.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, this Indenture.

          Section 7.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office located in the Borough of Manhattan, The City of New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 7.09, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VII.

          Section 7.10. Resignation and Removal of Trustee; Appointment of Successor.

          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VII shall become effective until the acceptance of appointment by the successor Trustee under Section 7.11.

          (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.

          (c) The Trustee may be removed at any time by act of the holders of a majority in principal amount of the outstanding Notes, delivered to the Trustee and the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor.

          (d) If at any time:

     (i) the Trustee shall fail to comply with Section 7.08 after written request therefor by the Company or by any Noteholder who has been a bona fide holder of a Note for at least six months, or

     (ii) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Noteholder, or

     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or

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an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article X.

ARTICLE XI
Merger, Consolidation, Etc.

          Section 11.01. Mergers, Consolidations and Certain Transfers, Leases and Acquisitions of Assets. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:

     (a) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, shall be organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on, all the Notes and the performance or observance of every covenant and obligation of this Indenture and the Notes on the part of the Company to be performed or observed; and

     (b) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.

          Section 11.02. Successor to Be Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes.

          Section 11.03. Opinion of Counsel to Be Given Trustee. The Trustee shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article XI.

ARTICLE XII
Satisfaction and Discharge of Indenture

          Section 12.01. Discharge of Indenture. When:

     (a) either:

     (i) the Company shall have delivered to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or

     (ii) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption or repurchase of all of the Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal, premium, if any, and interest due or to become due to such date of maturity or redemption date or Repurchase Date, as the case may be, accompanied by a verification report, as to the sufficiency of the deposited amount, from an independent certified public accountant or other financial professional satisfactory to the Trustee, and

     (b) the Company shall pay or cause to be paid all other sums payable hereunder by the Company, as the case may be, and

     (c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with,

then this Indenture shall cease to be of further effect (except that in the case of clause (a)(ii) above, Articles II, III, XII and XIV and Sections 4.01, 4.02, 7.01 and 7.03 through 7.12 shall survive until no Note remains outstanding). The rights, obligations and immunities of the Trustee hereunder shall survive any discharge pursuant to this Section 12.01, and Section 7.07 shall survive the termination of this Indenture. The Trustee, on written demand of the Company accompanied by the aforementioned Officers’ Certificate and an Opinion of Counsel shall, at the cost and expense of the Company, execute proper instruments acknowledging the satisfaction and discharge of this Indenture; the Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee (including the reasonable fees and expenses of its counsel) and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes.

          Section 12.02. Deposited Monies to Be Held in Trust by Trustee. Subject to Section 12.04, all monies deposited with the Trustee pursuant to Section 12.01, shall be held in trust for the sole benefit of the Noteholders, and such monies shall be applied by the Trustee to the payment, either directly or through any paying agent (including the Company if acting as the paying agent), to the holders of the particular Notes for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest.

          Section 12.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all monies then held by any paying agent of the Notes (other than the Trustee) shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such monies.

          Section 12.04. Return of Unclaimed Monies. Subject to the requirements of applicable law and this Indenture, any monies deposited with or paid to the Trustee for payment of the principal of, or premium, if any, or interest on, Notes and not applied but remaining unclaimed by the holders of Notes for two years after the date upon which the principal of, or premium, if any, or interest on, such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand and all liability of the Trustee shall thereupon cease with respect to such monies; and the holder of any of the Notes shall thereafter look only to the Company for any payment that such holder may be entitled to collect unless an applicable abandoned property law designates another Person.

          Section 12.05. Reinstatement. If the Trustee or the paying agent is unable to apply any money in accordance with Section 12.02 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01 until such time as the Trustee or the paying agent is permitted to apply all such money in accordance with Section 12.02; provided that if the Company makes any payment of interest on or principal of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the holders of such Notes to receive such payment from the money held by the Trustee or paying agent.

ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors

          Section 13.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of, or premium, if any, or interest on, any Note, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Trustee, respectively, in this Indenture or in any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or the Trustee, respectively, or of any respective successor corporation, either directly or through the Company or the Trustee, respectively, or any respective successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes.

ARTICLE XIV
Conversion of Notes

Section 14.01. Right to Convert

          (a) Subject to and upon compliance with the provisions of this Indenture, the holder of any Note shall have the right to convert the principal amount of the Note, or any portion of such principal amount which is a multiple of $1,000, into cash or, to the extent applicable, a combination of cash and fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) by surrender of the Note so to be converted in whole or in part, together with any required funds under the circumstances described in this Section 14.01, in the manner provided in Section 14.02. Each $1,000 of principal amount of Notes shall be convertible for cash and Common Stock, if any, in an amount equal to the sum of the Daily Settlement Amounts for each of the ten (10) Trading Days during the applicable Observation Period, payable as set forth in Section 14.04. The Notes shall be convertible prior to the close of business on the scheduled Trading Day immediately preceding September 15, 2036, only upon the occurrence of one of the following events:

     (i) prior to the scheduled Trading Day immediately preceding September 15, 2036, during any calendar quarter commencing after December 31, 2006, if the Closing Sale Price exceeds 120% of the Conversion Price for at least 20 Trading Days in the 30 consecutive Trading Day period ending on the last Trading Day of the immediately preceding calendar quarter (it being understood for purposes of this Section 14.01(a)(i) that the Conversion Price in effect at the close of business on each of the 30 consecutive Trading Days should be used and such calculation shall give effect to any event referred to in Section 14.05 or 14.06 occurring during such 30 Trading Day period);

     (ii) during the five Business Day period immediately after any five consecutive Trading Day period in which the Trading Price per $1,000 principal amount of the Notes for each day of such five Trading Day period was less than 98% of the product of the Closing Sale Price on the applicable date and the Conversion Rate; (it being understood for purposes of this Section 14.01(a)(ii) that the Conversion Rate in effect at the close of business on each of the five consecutive Trading Days should be used and such calculation shall give effect to any event referred to in Section 14.05 or 14.06 occurring during such five Trading Day period). Upon satisfaction of the Trading Price condition set forth above the Company shall so notify the Noteholders and if at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than 98% of the product of (a) the Closing Sale Price on such date and (b) the then applicable Conversion Rate of the Notes, the Company shall so notify the Noteholders.

     (iii) if such Note has been called for redemption, at any time on or after the date the notice of redemption has been given until the close of business on the Business Day immediately preceding the Redemption Date; or

     (iv) as provided in Section (b) of this Section 14.01.

          Upon receipt by the Conversion Agent of a demand for conversion from a Noteholder pursuant to clause (a)(i) of this Section 14.01, the Conversion Agent shall inform the Company of such request and the Company shall thereupon furnish to the Conversion Agent an

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Officers’ Certificate stating whether the Notes are then convertible pursuant to clause (a)(i) of this Section and setting forth in reasonable detail the Company’s basis for such determination. Upon receipt of such Officers’ Certificate, the Conversion Agent shall promptly deliver written notice thereof to the Company (and, if the Conversion Agent is other than the Trustee, to the Trustee). In any event, the Company shall be obligated at all times to determine whether the Notes shall be convertible as a result of the occurrence of an event specified in clause (a)(i) of this Section 14.01. Whenever the Notes shall become convertible pursuant to this Section 14.01, the Company or, at the Company’s written request, the Trustee in the name and at the expense of the Company, shall notify the holders of the event triggering such convertibility in the manner provided in Section 16.03, and the Company shall also publicly announce such information and publish it on the Company’s web site. Any notice so given shall be conclusively presumed to have been duly given, whether or not the holder receives such notice.

          The Trustee (or other Conversion Agent appointed by the Company) shall have no obligation to determine the Trading Price under clause (a)(ii) of this Section 14.01 unless the Company has requested in writing such a determination; and the Company shall have no obligation to make such request unless a holder provides it with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of the Closing Sale Price and the Conversion Rate. If such evidence is provided, the Company shall request in writing that the Trustee (or other Conversion Agent) determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Closing Sale Price and the Conversion Rate. The Trustee shall not be liable for its determination of the Trading Price in compliance with the methodology set forth in this Section 14.01, except for any negligence or willful misconduct of the Trustee in making such determination.

          Notwithstanding any other provision of this Section 14.01(a), on and after September 15, 2036, and until the close of business on the scheduled Trading Date immediately preceding the maturity date of the Notes, the holder of any Note shall have the right to convert the principal amount of the Note, or any portion of the Note which is a multiple of $1000, at the Conversion Rate.

          (b) In addition, if:

                    (i) (A) the Company distributes to all holders of its Common Stock rights entitling them to purchase (for a period expiring within 45 days of the record date for the determination of the stockholders entitled to receive such distribution) shares of Common Stock, at a price per share less than the average of the Closing Sale Price for the ten Trading Days immediately preceding, but not including, the date such distribution is first publicly announced by the Company, or

                    (B) the Company distributes to all holders of its Common Stock, assets (including cash), debt securities or rights to purchase its securities, where the Fair Market Value of such distribution per share of Common Stock

exceeds 5% of the Closing Sale Price on the Trading Day immediately preceding the date such distribution is first publicly announced by the Company,

then, in either case, the Notes may be surrendered for conversion at any time on and after the date that the Company gives notice to the holders of such distribution, which shall be not less than fifteen scheduled Trading Days prior to the Ex-Dividend Time for such distribution, until the earlier of the close of business on the Business Day immediately preceding, but not including, the Ex-Dividend Time or the date the Company publicly announces that such distribution will not take place; provided that no adjustment to the Conversion Rate or the ability of a holder of a Note to convert will be made if the holder will otherwise participate in such distribution without conversion; or

          (ii) the Company consolidates with, or merges with or into, another Person or is a party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or substantially all of its properties and assets, in each case, pursuant to which the Common Stock would be converted into cash, securities or other property, then the Notes may be surrendered for conversion at any time from and after the date which is 15 scheduled Trading Days prior to the anticipated effective date of the transaction and ending on and including the date which is 15 scheduled Trading Days after the consummation of the transaction. The Board of Directors shall determine the anticipated effective date of the transaction, and such determination shall be conclusive and binding on the Noteholders. The Company will notify the Noteholders of Notes at least fifteen (15) scheduled Trading Days prior to the anticipated effective date of such transaction. Such notice shall be given in accordance with Section 16.02.

          (iii) if a transaction described in clause (ii) of this Section 14.01(b) also constitutes a Designated Event, then the Noteholder will be entitled to require the Company to repurchase such holder’s Notes, as provided for in Section 3.05 above, and, in addition, in lieu of the conversion right described in clause (ii) above, holders may convert Notes pursuant to this clause (iii) at any time during the period from and after the date that is fifteen (15) scheduled Trading Days prior to the expected Effective Date of the transaction to and including the date which is fifteen (15) scheduled Trading Days after the Effective Date or, if the transaction also results in the holders having the right to require the Company to repurchase the Notes, until the close of business on the Business Day immediately preceding the Designated Event Repurchase Date. The Board of Directors shall determine the anticipated effective date of the transaction and such determination shall be conclusive and binding on the Noteholders. The Company will notify the holders of Notes at least fifteen (15) scheduled Trading Days prior to the anticipated effective date of such transaction. The notice will state whether the Company will increase the Conversion Rate to provide for Additional Shares of Common Stock. Such notice shall be given in accordance with Section 16.02.

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

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

          (c) A Note in respect of which a holder is electing to exercise its option to require repurchase upon a Designated Event pursuant to Section 3.05(a) or repurchase pursuant to Section 3.06 may be converted only if such holder withdraws its election in accordance with Section 3.11. A holder of Notes is not entitled to any rights of a holder of Common Stock, if any, until such holder has converted its, his or her Notes to Common Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under this Article XIV.

          Section 14.02. Conversion Procedures. To convert a Note, a holder must (a) furnish appropriate endorsements and transfer documents if required by the Note registrar or the Conversion Agent, (b) pay any transfer or similar tax, if required, (c) except as set forth in the final paragraph of this Section 14.02, pay funds equal to the interest payable on the next interest payment date, (d) comply with DTC’s procedures for converting a beneficial interest in a Global Note and (e) to the extent of certificated Notes complete and manually sign the Conversion Notice (the “Conversion Notice”) on the back of the Note and deliver it, together with the Note or Notes to be converted, to the Conversion Agent. The date, within the time periods set forth in Section 14.01, on which the holder satisfies all of those requirements is the “Conversion Date.” Except as provided in

     (1) If the last day of the applicable Observation Period related to Notes surrendered for conversion is prior to the third Trading Day preceding the Effective Date of the Fundamental Change, the Company will settle such conversion for each $1,000 principal amount of Notes tendered for conversion as described in Section 14.04(a) by delivering the cash and shares of Common Stock, if any, (based on the Conversion Rate, but without regard to the number of Additional Shares to be added to the Conversion Rate pursuant to Section 14.06(a)) on the third Trading Day immediately following the last day of the applicable Observation Period. As soon as practicable following the Effective Date of the Fundamental Change, the Company will deliver the increase in such amount of cash and Reference Property deliverable in lieu of shares of Common Stock, if any, as if the Conversion Rate had been increased by such number of Additional Shares during the related Observation Period and based upon the related Daily VWAP prices during such Observation Period. If such increased amount of cash and shares, if any, results in an increase to the amount of cash to be paid to Noteholders, the Company will pay such increase in cash, and if such increased amount results in an increase to the number of shares of Common Stock, the Company will deliver such increase by delivering Reference Property based on such increased number of shares of Common Stock.

     (2) If the last day of the applicable Observation Period related to Notes surrendered for conversion is on or following the third scheduled Trading Day preceding the Effective Date of such Fundamental Change, the Company will settle such conversion with respect to each $1,000 principal amount of Notes tendered for conversion as described in Section 14.04(a) (based on the Conversion Rate as increased by the Additional Shares pursuant to Section 14.06(a) below on the later to occur of (1) the Effective Date of the Fundamental Change and (2) the third Trading Day immediately following the last day of the applicable Observation Period.

               Section 14.05. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:

               (a)   In case the Company shall issue shares of Common Stock as a dividend or distribution to all holders of its Common Stock, or shall effect a subdivision into a greater number of shares of Common Stock or combination into a lesser number of shares of Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where,

          CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such event;

          CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such event;

           OS₀ = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such event; and

          OS’ = the number of shares of Common Stock outstanding immediately after the Ex-Dividend Date for such event.

          Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the Stockholder Record Date fixed for such determination. If any dividend or distribution of the type described in this Section 14.05(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend, distribution, subdivision or combination had not been declared.

          (b)   In case the Company shall issue to all holders of its Common Stock rights, warrants or convertible securities entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Closing Sale Price of the Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be adjusted based on the following formula:

where,

          CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such event;

          CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such event;

          OS₀ = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such event;

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

          Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, warrants or convertible securities divided by the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on the Business Day immediately preceding the Ex-Dividend Date relating to such distribution for the issuance of such rights or warrants.

          Such adjustment shall be successively made whenever any such rights, warrants or convertible securities are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. If such rights, warrants or convertible securities are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Stockholder Record Date for such distribution had not been fixed. To the extent that shares of Common Stock are not delivered after the expiration of such rights, warrants or convertible securities, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.

          In determining whether any rights, warrants or convertible securities entitle the holders to subscribe for or purchase shares of Common Stock at less than such Closing Sale Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.

          (c)  In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (other than Common Stock as covered by subsection (a) of this Section 14.05, evidences of its Indebtedness or other assets or property of the Company (including securities, but excluding dividends and distributions covered by subsection (b) or (d) of this Section 14.05 and distributions described below in this subsection (c) with respect to Spin-Offs) (any of such shares of capital stock, Indebtedness, or other asset or property hereinafter in this subsection (c) called the “Distributed Property”), then, in each such case the Conversion Rate shall be adjusted based on the following formula:

where,

CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;

CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;

SP₀ = the average of the Closing Sale Price of Common Stock over the ten (10) consecutive Trading Day period ending on the Business Day immediately preceding the Ex-Dividend Date relating to such distribution; and

FMV = the fair market value as determined by the Board of Directors of the shares of capital stock, evidences of indebtedness, assets or property

distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date relating to such distribution.

          Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the date fixed for the determination of stockholders entitled to receive such distribution; provided that if the then fair market value (as so determined) of the portion of the Distributed Property so distributed applicable to one share of Common Stock is equal to or greater than SP₀ as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder shall have the right to receive, for each $1,000 principal amount of Securities upon conversion, the amount of Distributed Property such holder would have received had such holder owned a number of shares of Common Stock equal to the Conversion Rate on the Stockholder Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this subsection (c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in determining SP₀ above.

          With respect to an adjustment pursuant to this subsection (c) where there has been a payment of a dividend or other distribution on the Common Stock or shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the Stockholder Record Date fixed for determination of stockholders entitled to receive the distribution will be increased based on the following formula:

where,

CR₀ = the Conversion Rate in effect immediately prior to such Stockholder Record Date;

CR’ = the Conversion Rate in effect immediately after such Stockholder Record Date;

FMV₀ = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first ten (10) consecutive Trading Day period after the effective date of the Spin-Off; and

MP₀ = the average of the Closing Sale Prices of the Company’s Common Stock over the first ten (10) consecutive Trading-Day period after the effective date of the Spin-Off; provided, however, that in respect of any conversion within the ten (10) Trading Days following any Spin-Off references within this subsection (c) of Section 14.05 to ten (10) days shall be replaced with such lesser numbers of Trading Days as have elapsed between such Spin-Off and the Conversion Date in determining the applicable Conversion Rate.

          Such adjustment shall occur on the 10th Trading Day from, and including, the effective date of the Spin-Off.

          Rights or warrants distributed by the Company to all holders of Common Stock, entitling the holders thereof to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section (and no adjustment to the Conversion Rate under this Section will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this subsection (c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of Indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.

          For purposes of this subsection (c), and subsections (a) and (b) of this Section, any dividend or distribution to which this subsection (c) is applicable that also includes shares of Common Stock to which subsection (a) of this Section applies or rights or warrants to subscribe for or purchase shares of Common Stock to which subsection (a) or (b) of this Section applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of Indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants to which this subsection (c) applies (and any Conversion Rate adjustment required by this subsection (c) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by subsections (a) and (b) of this Section with

respect to such dividend or distribution shall then be made), except (A) the record date of such dividend or distribution shall be substituted as “the Stockholder Record Date” and “the date fixed for such determination” within the meaning of subsections (a) and (b) of this Section and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to such event” within the meaning of subsection (a) of this Section.

          (d)  In case the Company shall pay a dividend or make a distribution consisting exclusively of cash to all holders of its Common Stock, the Conversion Rate shall be adjusted based on the following formula:

where,

CR₀ = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;

CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;

SP₀ = the Closing Sale Prices of Common Stock on the Trading Day immediately preceding the Ex-Dividend Date relating to such distribution; and

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

          Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Stockholder Record Date for such dividend or distribution; provided that if the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than SP₀ as above, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of cash such holder would have received had such holder owned a number of shares equal to the Conversion Rate on the Stockholder Record Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

          For the avoidance of doubt, for purposes of this subsection (d), in the event of any reclassification of the Common Stock, as a result of which the Notes become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this subsection (d), references in this Section to one share of Common Stock or Closing Sale Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit consisting of the number of shares of each class of Common Stock into which the Securities are then convertible equal to the numbers of shares of such class issued in respect of one share of Common

Stock in such reclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications.

          (e)  In case the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for all or any portion of the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Conversion Rate shall be increased based on the following formula:

where,

CR₀ = the Conversion Rate in effect on the date such tender or exchange offer expires;

CR’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires;

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

OS₀ = the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires;

OS’ = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires; and

SP’ = the average of the Closing Sale Price of Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires.

          Such adjustment to become effective immediately prior to the opening of business on the day following the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting all or any such purchases or all or any portion of such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected. No adjustment to the Conversion Rate will be made if the application of the foregoing formulae would result in a decrease in the Conversion Rate.

          (f)   If a Person other than the Company or one of its Subsidiaries makes a payment in respect of a tender offer or exchange offer in which, as of the closing date of the offer, the Board of Directors is not recommending the rejection of the offer, the

Conversion Rate will be adjusted as set forth in paragraph (e) above; provided, however, the adjustment will only be made if:

	•		The tender offer or exchange offer is for an amount that increases the offeror’s ownership of Common Stock to more than 25% of the total shares of Common Stock outstanding; and
	•		The cash and value of any other consideration included in the payment per share of the Common Stock exceeds the Closing Sale Price of the Common Stock on the Trading Date next succeeding the last date on which tenders or exchanges may be made pursuant to the tender or exchange offer; however, the adjustment referred to in this clause generally will not be made if, as of the closing of the offer, the offering documents disclose a plan or an intention to cause the Company to engage in a consolidation or merger or a sale of all or substantially all of the Company’s assets.

          (g)  In addition to those required by subsections (a), (b), (c), (d), (e) and (f) of this Section, and to the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 calendar days if the Board of Directors determines that such increase would be in the Company’s best interest. In addition, the Company may also (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the holder of each Note at his last address appearing on the Note register provided for in Section 2.04(a) a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.

          (h)  All calculations and other determinations under this Article shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. No adjustment shall be made for the Company’s issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common Stock or convertible or exchangeable securities, other than as provided in this Section. No adjustment shall be made to the Conversion Rate unless such adjustment would require a change of at least 1% in the Conversion Rate then in effect at such time. The Company shall carry forward any adjustments that are less than 1% of the

Conversion Rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, if the Notes are called for repurchase, upon a Designated Event, upon a Fundamental Change, or upon maturity.

          (i)  In any case in which this Section provides that an adjustment shall become effective immediately after (1) a record date or Stockholder Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution pursuant to subsection (a) of this Section, (3) a date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to subsection (b) of this Section, or (4) the last date on which tenders or exchanges may be made pursuant to any tender or exchange offer pursuant to subsection (e) of this Section (each an “Adjustment Determination Date”), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note converted after such Adjustment Determination Date and before the occurrence of such Adjustment Event, the additional cash and, if applicable, shares of Common Stock or other securities issuable upon such conversion by reason of the adjustment required by such Adjustment Event over and above the amounts deliverable upon such conversion before giving effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 14.03. For purposes of this subsection (i), the term “Adjustment Event” shall mean:

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

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

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

          (iv) in any case referred to in clause (4) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is consummated and becomes irrevocable.

          (j)  For purposes of this Section, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

          (k)  For the avoidance of doubt, if a holder converts Notes prior to the effective date of a Fundamental Change, and the Fundamental Change does not occur, the holder will not be entitled to an increased Conversion Rate in connection with such conversion.

          For purposes of this Section the term “Stockholder Record Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the

Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

          Section 14.06. Effect of Fundamental Change, Reclassification, Consolidation, Merger or Sale

          (a) If a Noteholder elects to convert Notes at any time on or after the 15^th scheduled Trading Day prior to the date of a Fundamental Change that occurs on or prior to December 15, 2013, until the close of business on the Business Day immediately preceding the related repurchase date, the Conversion Rate applicable to each $1,000 principal amount of Notes so converted shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below; provided, however, that no increase will be made in the case of Fundamental Change if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of shares of capital stock or American Depositary Receipts in respect of shares of capital stock traded on the New York Stock Exchange or another U.S. national securities exchange or quoted on an established automated over-the-counter trading market in the United States (or that will be so traded or quoted immediately following the transaction) and as a result of such transaction or transactions the Notes become convertible solely into such capital stock or such American Depositary Receipt. Settlement of Notes tendered for conversion to which Additional Shares shall be added to the Conversion Rate as provided in this subsection shall be settled pursuant to Section 14.04(b) above. For purposes of this Section 14.06(a), a conversion shall be deemed to be “in connection” with a Fundamental Change to the extent that such conversion is effected during the time period specified in Section 3.05(a).

          The number of Additional Shares by which the Conversion Rate will be increased shall be determined by reference to the table attached as Exhibit C hereto, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”), and the price per share of the Common Stock on the Effective Date (the “Stock Price”); provided that if the actual Stock Price is between two Stock Price amounts in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the next higher and next lower Stock Price amounts and the two nearest Effective Dates, as applicable, based on a 365-day year; provided further that if (1) the Stock Price is greater than $180.00 per share (subject to adjustment in the same manner as set forth in Section 14.05), no Additional Shares will be added to the Conversion Rate, and (2) the Stock Price is less than $31.33 per share (subject to adjustment in the same manner as set forth in Section 14.05). Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon conversion exceed 31.9183 per $1,000 principal amount of Notes (subject to adjustment in the same manner as set forth in Section 14.05). If holders of the Company’s shares of Common Stock receive only cash in the Fundamental Change, the Stock Price shall be the cash amount per share; provided, however, if holders of the Company’s Common Stock receive any non-cash consideration, the Stock Price shall be the average of the Closing Sale Price of the Company’s Common Stock on the five (5) Trading Days up to but not including the Effective Date. If the Conversion Rate is adjusted pursuant to this Section 14.06(a), the Company will send Noteholders a notice of such adjustment at least fifteen(15) scheduled Trading Days prior to but not including the expected Effective Date of the Fundamental Change.

          The Stock Prices set forth in the first column of the table in Exhibit C hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the Notes is adjusted. The adjusted Stock Prices shall equal the stock prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate in effect

immediately prior to the adjustment giving rise to the stock price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted in the same manner as the Conversion Rate as set forth in Section 14.05 (other than by operation of an adjustment to the Conversion Rate by adding Additional Shares).

          (b) If any of the following events occur, namely (i) any 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 split, subdivision or combination), (ii) any consolidation, merger or combination of the Company with another Person, or (iii) any sale or conveyance of all or substantially all of the property and assets of the Company to any other Person, in any case as a result of which holders of Common Stock shall be entitled to receive cash, securities or other property or assets with respect to or in exchange for such Common Stock (any such event described in clauses (i) through (iii) a “Merger Event”), then:

          (1) the Company or the successor or purchasing Person or acquirer, 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). Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article and the Trustee may conclusively rely on the determination by the Company of the equivalency of such adjustments. If, in the case of any Merger Event, the Reference Property includes shares of stock or other securities and assets of a company other than the successor or purchasing company, as the case may be, in such reclassification, change of control, consolidation, merger, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other company and shall contain such additional provisions to protect the interests of the holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the repurchase rights set forth in Article III.

In the event a supplemental indenture is executed pursuant to this Section, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefore, the kind or amount of cash, securities or property or assets that will constitute the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all holders.

If any securities be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such securities may be validly issued upon conversion, each supplemental indenture executed pursuant to this Section shall provide that the Company or the successor or the purchasing Person or acquirer, as the case may be, or if the Reference Property includes shares of stock or other

securities and assets of a company other than the successor or purchasing company, as the case may be, then such company, shall use all reasonable best efforts, to the extent then permitted by the rules and interpretations of the SEC (or any successor thereto), to secure such registration or approval in connection with the conversion of Notes.

          (2) Notwithstanding the provisions of Section 14.04 and subject to the provisions of Section 14.01(a) and Section 14.01(b), at the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes will be changed to a right to convert such Notes by reference to the kind and amount of cash, securities or other property or assets that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive (the “Reference Property”) such that from and after the effective time of such transaction, a holder will be entitled thereafter to convert its Notes into cash and the same type (and in the same proportion) of Reference Property, based on the Daily Settlement Amounts of Reference Property in an amount equal to the applicable Conversion Rate, as described under Section 14.04; provided, however, that upon conversion Noteholders will continue to receive cash in satisfaction of all or a portion of the conversion consideration as described under Section 14.04. For purposes of determining the constitution of Reference Property, the type and amount of consideration that a holder of Common Stock would have been entitled to in the case of reclassifications, consolidations, mergers, sales or conveyance of assets or other transactions that cause the 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) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election. The Company shall not become a party to any such transaction unless its terms are consistent with the preceding. None of the foregoing provisions shall affect the right of a holder of Securities to convert its Securities in accordance with the provisions of this Article XIV prior to the effective date.

          (3) The Company shall cause notice of the execution of such supplemental indenture to be mailed to each holder, at his address appearing on the Note register provided for in this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.

          (4) The above provisions of this Section 14.06 shall similarly apply to successive Merger Events.

          Section 14.07. Taxes on Shares Issued. If a Noteholder submits a Note for conversion, the Company shall pay all documentary, stamp or similar issue or transfer tax which may be imposed by the United States or any political subdivision thereof or taxing authority thereof with respect to the issuance of shares of Common Stock, if any, upon conversion. The Company shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issue and delivery of Common Stock in any name other than that of

the holder of any Note converted, and the Company shall not be required to issue or deliver any such Common Stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Nothing herein shall preclude the Company’s withholding any tax required by law or regulators.

          Section 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for the conversion of the Notes from time to time as such Notes are presented for conversion.

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

          The Company covenants that all shares of Common Stock which may be issued upon conversion of Notes will upon issue be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue by the Company thereof.

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

          The Company further covenants that, if at any time the Common Stock shall be listed on the New York Stock Exchange or the Nasdaq Global Market or any other national securities exchange or automated quotation system, the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of the Note, if any; provided that if the rules of such exchange or automated quotation system permit the Company to defer the listing of such Common Stock until the first conversion of the Notes into Common Stock in accordance with the provisions of this Indenture, the Company covenants to list such Common Stock issuable upon conversion of the Notes, if any, in accordance with the requirements of such exchange or automated quotation system at such time.

          Section 14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any holder of Notes to determine the Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent

shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article XIV. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 14.06 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Noteholders upon the conversion of their Notes after any event referred to in such Section 14.06 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept as conclusive evidence of the correctness of any such provisions of this Indenture, and shall be protected in relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto.

          Section 14.10. Notice to Holders Prior to Certain Actions. In case:

(a)    the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to Section 14.05; or

(b)    the Company shall authorize the granting to the holders of all of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants; or

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

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

the Company shall cause to be filed with the Trustee and to be mailed to each holder of Notes at his address appearing on the Note register provided for in Section 2.04(a), as promptly as possible but in any event at least ten (10) days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their

Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, authorization, grant, reclassification, reorganization, consolidation, merger, sale, transfer, dissolution, liquidation or winding up.

          Section 14.11. Rights Issued in Respect of Common Stock Issued upon Conversion. Each share of Common Stock issued upon conversion of Notes, if any, pursuant to this Article XIV shall be entitled to receive the appropriate number of common stock or preferred stock purchase rights, as the case may be (the “Rights”), if any, that shares of Common Stock are entitled to receive and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any shareholder rights agreement adopted by the Company, as the same may be amended from time to time (in each case, a “Rights Agreement”); provided, however, that any holder who is a holder of Common Stock (or direct or indirect interests therein) at the time of conversion of any Note, but who is not entitled as a holder of Common Stock to hold or receive Rights pursuant to the terms of the Rights Agreement, will not receive any such Rights upon conversion of the Notes. Provided that such Rights Agreement requires that each share of Common Stock issued upon conversion of Notes at any time prior to the distribution of separate certificates representing the Rights be entitled to receive such Rights, then, notwithstanding anything else to the contrary in this Article XIV there shall not be any adjustment to the conversion privilege or Conversion Rate as a result of the issuance of Rights, but an adjustment to the Conversion Rate shall be made with respect to Notes then outstanding pursuant to Section 14.05(c) (to the extent required thereby) upon the separation of the Rights from the Common Stock.

ARTICLE XV

          Section 15.01. Notes Subordinated to Senior Indebtedness. The Company and the Trustee each covenants and agrees, and each Noteholder, by its acceptance of a Note, likewise covenants and agrees that all Notes shall be issued subject to the subordination provisions of this Article XV; and each Person holding any Note, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that the payment of principal, premium and interest on the Notes shall, to the extent and in the manner set forth in this Article XV, be subordinated in right of payment to the prior payment in full, in cash or cash equivalents, of all amounts payable under Senior Indebtedness, including, without limitation, the Company’s obligations under the Bank Credit Agreement (including any interest accruing subsequent to an event specified in Sections 6.01(g) and 6.01(h), whether or not such interest is an allowed claim enforceable against the debtor under the United States Bankruptcy Code).

          Section 15.02. No Payment on Notes in Certain Circumstances.

          (a) No direct or indirect payment by or on behalf of the Company of principal, premium and interest on the Notes, whether pursuant to the terms of the Notes or upon acceleration or otherwise, shall be made if, at the time of such payment, there exists a default in the payment of all or any portion of the obligations of any Senior Indebtedness, and such default

shall not have been cured or waived or the benefits of this sentence waived by or on behalf of the holders of such Senior Indebtedness.

          (b) During the continuance of any other event of default with respect to (i) the Bank Credit Agreement pursuant to which the maturity thereof may be accelerated and (A) upon receipt by the Trustee of written notice from the administrative agent under the Bank Credit Agreement (the “Administrative Agent”) or (B) if such event of default under the Bank Credit Agreement results from the acceleration of the Notes, from and after the date of such acceleration, no payment of principal, premium and interest on the Notes may be made by or on behalf of the Company upon or in respect of the Notes for a period (a “Payment Blockage Period”) commencing on the earlier of the date of receipt of such notice or the date of such acceleration and ending 179 days thereafter (unless such Payment Blockage Period shall be terminated by written notice to the Trustee from the Administrative Agent or such event of default has been cured or waived or by repayment in full in cash or cash equivalents of such Senior Indebtedness) or (ii) any other Designated Senior Indebtedness pursuant to which the maturity thereof may be accelerated, upon receipt by the Trustee of written notice from the trustee or other representative for the holders of such other Designated Senior Indebtedness (or the holders of at least a majority in principal amount of such other Designated Senior Indebtedness then outstanding), no payment of principal, premium and interest on the Notes may be made by or on behalf of the Company upon or in respect of the Notes for a Payment Blockage Period commencing on the date of receipt of such notice and ending 119 days thereafter (unless, in each case, such Payment Blockage Period shall be terminated by written notice to the Trustee from such trustee of, or other representatives for, such holders or by repayment in full in cash or cash-equivalents of such Designated Senior Indebtedness or such event of default has been cured or waived). Notwithstanding anything in this Indenture to the contrary, there must be 180 consecutive days in any 360-day period in which no Payment Blockage Period is in effect. For all purposes of this Section 15.02(b), no event of default (other than an event of default pursuant to the financial maintenance covenants under the Bank Credit Agreement) that existed or was continuing (it being acknowledged that any subsequent action that would give rise to an event of default pursuant to any provision under which an event of default previously existed or was continuing shall constitute a new event of default for this purpose) on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior Indebtedness initiating such Payment Blockage Period shall be, or shall be made, the basis for the commencement of a second Payment Blockage Period by the representative for, or the holders of, such Designated Senior Indebtedness, whether or not within a period of 360 consecutive days, unless such event of default shall have been cured or waived for a period of not less than 45 consecutive days.

          (c) In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee or any holder when such payment is prohibited by Section 15.02(a) or 15.02(b) hereof of which the Trustee has actual knowledge, the Trustee shall promptly notify the holders of Senior Indebtedness of such prohibited payment and such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, but only to the extent that, upon notice from the Trustee to the holders of Senior Indebtedness that such prohibited payment has been made, the holders of the Senior

Indebtedness (or their representative or representatives of a trustee) within 30 days of receipt of such notice from the Trustee notify the Trustee of the amounts then due and owing on the Senior Indebtedness, if any, and only the amounts specified in such notice to the Trustee shall be paid to the holders of Senior Indebtedness and any excess above such amounts due and owing on Senior Indebtedness shall be paid to the Company.

          Section 15.03. Payment over Proceeds upon Dissolution Etc.

          (a) Upon any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities, in connection with any dissolution or winding up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings or other marshalling of assets for the benefit of creditors, all amounts due or to become due upon all Senior Indebtedness (including any interest accruing subsequent to an event specified in Sections 6.01(g) and 6.01(h), whether or not such interest is an allowed claim enforceable against the debtor under the United States Bankruptcy Code) shall first be paid in full, in cash or cash equivalents, before the holders or the Trustee on their behalf shall be entitled to receive any payment by the Company on account of principal, premium and interest on the Notes, or any payment to acquire any of the Notes for cash, property or securities, or any distribution with respect to the Notes of any cash, property or securities. Before any payment may be made by, or on behalf of, the Company on any principal, premium and interest on the Notes in connection with any such dissolution, winding up, liquidation or reorganization, any payment or distribution of assets or securities for the Company of any kind or character, whether in cash, property or securities, to which the holders or the Trustee on their behalf would be entitled, but for the subordination provisions of this Article XV, shall be made by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person making such payment or distribution, or by the holders or the Trustee if received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their representatives or to any trustee or trustees under any other indenture pursuant to which any such Senior Indebtedness may have been issued, as their respective interests appear, to the extent necessary to pay all such Senior Indebtedness in full, in cash or cash equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.

          (b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such payment is recovered by, or paid over to such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid, or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligations so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been affected)

shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred.

          (c) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any holder at a time when such payment or distribution is prohibited by Section 15.03(a) hereof and before all obligations in respect of Senior Indebtedness are paid in full, in cash or cash equivalents, such payment or distribution shall be received and held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of such respective amount of Senior Indebtedness held by such holders) or their representatives, or to the trustee or trustees under any indenture pursuant to which any such Senior Indebtedness may have been issued, as their respective interests appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, in cash or cash equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.

          (d) For purposes of this Section 15.03, the words “cash, property or securities” shall not be deemed to include, so long as the effect of this clause is not to cause the Notes to be treated in any case or proceeding or similar event described in this Section 15.03, as part of the same class of claims as the Senior Indebtedness or any class of claims pari passu with, or senior to, the Senior Indebtedness for any payment or distribution, securities of the Company or any other corporation provided for by a plan of reorganization or readjustment that are subordinated, at least to the extent that the Notes are subordinated, to the payment of all Senior Indebtedness then outstanding; provided that (i) if a new corporation results from such reorganization or readjustment, such corporation assumes the Senior Indebtedness and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company with or into, another corporation or the liquidation or dissolution of the Company following the sale, conveyance, transfer, lease or other disposition of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article XI shall not be deemed a dissolution, winding up, liquidation or reorganization for the purposes of this Section 15.03 if such other corporation shall, as a part of such consolidation, merger, sale, conveyance, transfer, lease or other disposition, comply (to the extent required) with the conditions stated in Article XI.

          Section 15.04. Subrogation.

          (a) Upon the payment in full of all Senior Indebtedness in cash or cash equivalents, the holders of Notes shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company made on such Senior Indebtedness until the principal or premium, if any, and interest on the Notes shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the holders or the Trustee on their behalf would be entitled except for the subordination provisions of this Article XV, and no payment pursuant to the provisions of this Article XV to the holders of Senior Indebtedness by holders or the Trustee on their behalf shall, as between the

Company, its creditors other than holders of Senior Indebtedness, and the holders of Notes, be deemed to be a payment by the Company to or on account of the Senior Indebtedness. It is understood that the subordination provisions of this Article XV are intended solely for the purpose of defining the relative rights of the holders of Notes, on the one hand, and the holders of the Senior Indebtedness, on the other hand.

          (b) If any payment or distribution to which the holders of Notes would otherwise have been entitled but for the subordination provisions of this Article XV shall have been applied, pursuant to such provisions of this Article XV, to the payment of all amounts payable under Senior Indebtedness, then, and in such case, the holders of Notes shall be entitled to receive from the holders of such Senior Indebtedness any payments or distributions received by such holders of Senior Indebtedness in excess of the amount required to make payment in full, in cash or cash equivalents, of such Senior Indebtedness.

          Section 15.05. Obligations of Company Unconditional.

          (a) Nothing contained in this Article XV or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Company and the holders of the Notes, the obligation of the Company, which is absolute and unconditional, to pay to such holders the principal of, premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of such holders and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the holders of Notes or the Trustee on their behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the subordination rights, if any, under this Article XV of the holders of the Senior Indebtedness.

          (b) Without limiting the generality of the foregoing, nothing contained herein will restrict the right of the Trustee or the holders to take any action to declare the Notes to be due and payable prior to their stated maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder; provided, however, that all Senior Indebtedness then due and payable or thereafter declared to be due and payable shall first be paid in full, in cash or cash equivalents, before the holders or the Trustee are entitled to receive any direct or indirect payment from the Company of principal, premium and interest on the Notes.

          Section 15.06. Notice to Trustee.

          (a) The Company shall give prompt written notice to the Trustee of any fact known to the Company that would prohibit the making of any payment to or by the Trustee in respect of the Notes pursuant to the subordination provisions of this Article XV. The Trustee shall not be charged with the knowledge of the existence of any default or event of default with respect to any Senior Indebtedness or of any other facts that would prohibit the making of any payment to or by the Trustee unless and until the Trustee shall have received notice in writing at its Corporate Trust Office to that effect signed by an Officer of the Company, or by a holder of Senior Indebtedness or trustee or agent thereof; and prior to the receipt of any such written notice, the Trustee shall, subject to Article VII, be entitled to assume that no such facts exist; provided that, if the Trustee shall not have received the notice provided for in this Section 15.06

at least two Business Days prior to the date upon which, by the terms hereof, any monies shall become payable for any purpose (including, without limitation, the payment of the principal of, premium, if any, or interest on any Note), then, notwithstanding anything herein to the contrary, the Trustee shall have full power and authority to receive any monies from the Company and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary that may be received by it on or after such prior date, except for an acceleration of the Notes prior to such application. Nothing contained in this Section 15.06 shall limit the right of the holders of Senior Indebtedness to recover payments as contemplated by this Article XV. The foregoing shall not apply if the paying agent is the Company. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or itself to be a holder of any Senior Indebtedness (or a trustee on behalf of, or other representative of, such holder) to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee or representative on behalf of any such holder.

          (b) In the event that the Trustee determines in good faith that any evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV and, if such evidence is not furnished to the Trustee, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.

          Section 15.07. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets or securities referred to in this Article XV, the Trustee and the holders of Notes shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization proceedings are pending, or upon a certificate of the receiver; trustee in bankruptcy, liquidating trustee, agent or other similar Person making such payment or distribution, delivered to the Trustee or to such holders for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.

          Section 15.08. Trustee’s Relation to Senior Indebtedness.

          (a) The Trustee and any paying agent shall be entitled to all the subordination rights set forth in this Article XV with respect to any Senior Indebtedness that may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Senior Indebtedness and nothing in this Indenture shall deprive the Trustee or any paying agent of any of its rights as such holder.

          (b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be

deemed to owe any fiduciary duty to the holders of Senior Indebtedness (except as provided in Sections 15.02(c) and 15.03(c)) and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to holders of Notes or to the Company or to any other person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise.

          Section 15.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Indebtedness. No right of any present or future holders of any Senior Indebtedness to enforce subordination as provided in this Article XV will at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with. The subordination provisions of this Article XV are intended to be for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness.

          Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Notes. Each holder of Notes by his acceptance of any Notes authorizes and expressly directs the Trustee on its, his or her behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article XV, and appoints the Trustee its, his or her attorney-in-fact for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors or otherwise) tending towards liquidation of the property and assets of the Company, the filing of a claim for the unpaid balance of its, his or her Notes in the form required in those proceedings. If the Trustee does not file a proper claim or proof in indebtedness in the form required in such proceeding at least 30 days before the expiration of the time to file such claim or claims, each holder of Senior Indebtedness is hereby authorized to file an appropriate claim for and on behalf of the holders.

          Section 15.11. Not to Prevent Events of Default. The failure to make a payment on account of principal of, premium, if any, or interest on the Notes by reason of any subordination provision of this Article XV will not be construed as preventing the occurrence of an Event of Default.

          Section 15.12. Trustee’s Compensation Not Prejudiced. Nothing in this Article XV will apply to amounts due to the Trustee pursuant to other sections, including Section 7.07.

          Section 15.13. No Waiver of Subordination Provisions. Without in any way limiting the generality of Section 15.09, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the holders of Notes, without incurring responsibility to the holders of Notes and without impairing or releasing the subordination provided in this Article XV or the obligations hereunder of the holders of Notes to the holders of Senior Indebtedness, do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior

Indebtedness is outstanding or secured; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c) release any Person liable in any manner for the collection of Senior Indebtedness; and (d) exercise or refrain from exercising any rights against the Company and any other Person.

          Section 15.14. Payments May Be Paid Prior to Dissolution. Nothing contained in this Article XV or elsewhere in this Indenture shall prevent (i) the Company except under the conditions described in Section 15.02 or 15.03, from making payments of principal of, premium, if any, and interest on the Notes, or from depositing with the Trustee any money for such payments, or (ii) the application by the Trustee of any money deposited with it for the purpose of making such payments of principal of, premium, if any, and interest on the Notes to the holders of such Notes entitled thereto unless, at least two Business Days prior to the date upon which such payment becomes due and payable, the Trustee shall have received the written notice provided for in Section 15.02(b) hereof (or there shall have been an acceleration of the Notes prior to such application) or in Section 15.06 hereof. The Company shall give prompt written notice to the Trustee of any dissolution, winding up, liquidation or reorganization of the Company.

          Section 15.15. Consent of Holders of Senior Indebtedness Under the Bank Credit Agreement. The subordination provisions of this Article XV (including related definitions and references to such provisions contained herein) shall not be amended in a manner that would adversely affect the rights of the holders of Senior Indebtedness under the Bank Credit Agreement, and no such amendment shall become effective unless the holders of Senior Indebtedness under the Bank Credit Agreement shall have consented (in accordance with the provisions of the Bank Credit Agreement) to such amendment. The Trustee shall be entitled to receive and conclusively rely on an Officers’ Certificate stating that such consent has been given.

          Section 15.16. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the contrary, payments from money or the proceeds of United States government obligations held in trust under Article XII by the Trustee for the payment of principal of, premium, if any, and interest on the Notes shall not be subordinated to the prior payment of any Senior Indebtedness (provided that at the time deposited, such deposit did not violate any then outstanding Senior Indebtedness), and none of the holders of Notes shall be obligated to pay over any such amount to any holder of Senior Indebtedness.

ARTICLE XVI

          Section 16.01. Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements by the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.

          Section 16.02. Addresses for Notices, Etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Notes on the Company shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the

Trustee) to AGCO Corporation, 4205 River Green Parkway, Duluth, Georgia 30096, Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited, postage prepaid, by registered or certified mail in a post office letter box addressed by the Company to the Corporate Trust Office or by the Noteholders to the Corporate Trust Office.

          The Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.

          Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail, postage prepaid, at his address as it appears on the Note register and shall be sufficiently given to him if so mailed within the time prescribed.

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

          Section 16.03. Governing Law; Waiver of Jury Trial. This Indenture and each Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York without reference to its principles of conflict of laws that would defer to the substantive laws of another jurisdiction.

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

          Section 16.04. Evidence of Compliance with Conditions Precedent, Certificates to Trustee. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

          Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate or opinion is based; (3) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

          Section 16.05. Legal Holidays. In any case in which the date of maturity of interest on or principal of the Notes or the redemption date or Repurchase Date of any Note will not be a Business Day, then payment of such interest on or principal of the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the redemption date or Repurchase Date, and no interest shall accrue for the period from and after such date.

          Section 16.06. Trust Indenture Act. This Indenture is hereby made subject to, and shall be governed by, the provisions of the Trust Indenture Act required to be part of and to govern indentures qualified under the Trust Indenture Act; provided that unless otherwise required by law, notwithstanding the foregoing, this Indenture and the Notes issued hereunder shall not be subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture Act as now in effect or as hereafter amended or modified; provided further that this Section 16.06 shall not require this Indenture or the Trustee to be qualified under the Trust Indenture Act prior to the time such qualification is in fact required under the terms of the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to this Indenture that any such qualification is required prior to the time such qualification is in fact required under the terms of the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in an indenture qualified under the Trust Indenture Act, such required provision shall control.

          Section 16.07. No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction in which property of the Company or its subsidiaries is located.

          Section 16.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any paying agent, any authenticating agent, Conversion Agent, any Note registrar and their successors hereunder and the holders of Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.

          Section 16.09. Table of Contents, Headings, Etc.The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

          Section 16.10. Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf, and subject to its direction, in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03 and 3.05, as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.09.

          Any corporation into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of any authenticating agent, shall be the

successor of the authenticating agent hereunder, if such successor corporation is otherwise eligible under this Section 16.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation.

          Any authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee shall either promptly appoint a successor authenticating agent or itself assume the duties and obligations of the former authenticating agent under this Indenture and, upon such appointment of a successor authenticating agent, if made, shall give written notice of such appointment of a successor authenticating agent to the Company and, at the Company’s expense, shall mail notice of such appointment of a successor authenticating agent to all holders of Notes as the names and addresses of such holders appear on the Note register.

          The Company agrees to pay to the authenticating agent from time to time such reasonable compensation for its services as shall be agreed upon in writing between the Company and the authenticating agent.

          The provisions of Sections 7.03, 7.04, 7.05, 8.03 and this Section 16.10 shall be applicable to any authenticating agent.

          Section 16.11. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Person that shall at the time be the lawful sole successor of the Company.

          Section 16.12. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

          Section 16.13. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

          Union Bank of California, N.A. hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions herein above set forth.

          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.

EXHIBIT A

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE “DEPOSITARY”, WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

AGCO CORPORATION

1.25% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2036

CUSIP: 001084AM4
ISIN: US001084AM43

No. 1		$201,250,000

          AGCO CORPORATION, a corporation duly organized and validly existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to Cede & Co. or its registered assigns, the principal sum set forth on Schedule I hereto on December 15, 2036 at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually on June 15 and December 15 of each year, commencing June 15, 2007, on said principal sum at said office or agency, in like coin or currency, at the rate per annum of 1.25%, from the June 15 or December 15, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on the Notes, in which case from December 4, 2006, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after any June 15 or December 15, as the case may be, and before the following June 15 or December 15, this Note shall bear interest from such June 15 or December 15; provided that if the Company shall default in the payment of interest due on such June 15 or December 15, then this Note shall bear interest from the next preceding June 15 or December 15 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on such Note, from December 4, 2006. Except as otherwise provided in the Indenture, the interest payable on the Note pursuant to the Indenture on any June 15 or December 15 will be paid to the Person entitled thereto as it appears in the Note register at the close of business on the record date, which shall be the June 1 or December 1 (whether or not a Business Day) next preceding such June 15 or December 15, as provided in the Indenture; provided that any such interest not punctually paid or duly provided for shall be payable as provided in the Indenture. Interest may, at the option of the Company, be paid either (i) by check mailed to the registered address of such Person (provided that the holder of Notes with an aggregate principal amount in excess of $2,000,000 shall, at the written election (timely made and containing appropriate wire transfer information) of such holder, be paid by wire transfer of immediately available funds) or (ii) by transfer to an account maintained by such Person located in the United States; provided that payments to the Depositary will be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.

          The Company promises to pay interest on overdue principal and premium, if any, (to the extent that payment of such interest is enforceable under applicable law) at the rate of 2.25%, per annum.

          Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the holder of this Note the right to convert this Note into cash and, if applicable, Common Stock of the Company on the terms and subject to the limitations referred to on the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

          This Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of the State of New York without reference to its principles of conflict of laws.

          This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee or a duly authorized authenticating agent under the Indenture.

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

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes described in the within-named Indenture.

UNION BANK OF CALIFORNIA, N.A., as Trustee

By:
		Authorized Signatory

Dated: December 4, 2006

FORM OF REVERSE OF NOTE

AGCO CORPORATION

1.25% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2036

          This Note is one of a duly authorized issue of Notes of the Company, designated as its 1.25% Convertible Senior Subordinated Notes Due 2036 (herein called the “Notes”), limited in aggregate principal amount to $201,250,000, issued and to be issued under and pursuant to an Indenture dated as of December 4, 2006 (herein called the “Indenture”), between the Company and Union Bank of California, N.A., as trustee (herein called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders of the Notes.

          In case an Event of Default shall have occurred and be continuing, the principal of, and premium, if any, and accrued interest on, all Notes may be declared by either the Trustee or the holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

          The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of at least a majority in aggregate principal amount of the Notes at the time outstanding, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Notes; provided that no such supplemental indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or change the time of payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon or reduce any amount payable on redemption or repurchase thereof, or impair the right of any Noteholder to institute suit for the payment thereof, or make the principal thereof or interest or premium, if any, thereon payable in any coin or currency or payable at any place other than that provided in the Indenture or the Notes, or change the obligation of the Company to redeem any Note on a redemption date in a manner adverse to the holders of Notes, or change the obligation of the Company to repurchase any Note upon the happening of a Designated Event in a manner adverse to the holders of Notes, or change the obligation of the Company to repurchase any Note on a Repurchase Date in a manner adverse to the holders of Notes, or reduce the Conversion Rate, otherwise than in accordance with the terms of the Indenture, or impair the right to convert the Notes into cash and, if applicable, Common Stock subject to the terms set forth therein, or adversely modify, in any material respect, the provisions of Article XV, or reduce the quorum or the voting requirements under the Indenture, or modify any of the provisions of Section 10.01 or Section 6.07 of the Indenture, except to increase any such percentage or to provide that certain other provisions cannot be modified or waived without the consent of the holder of each Note so affected, or change any obligation of the Company to maintain an office or agency in the places and for the purposes set forth in Section 4.01 thereof, in each case, without the consent of the holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the holders of which are required to consent to any such supplemental indenture or to waive any past Event of Default, without the consent of the holders of all Notes affected thereby. Subject to the

provisions of the Indenture, the holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the holders of all of the Notes waive any past default or Event of Default under the Indenture and its consequences except a default in the payment of interest, or any premium on or the principal of, any of the Notes, or a failure by the Company to convert any Notes into cash and, if applicable, Common Stock of the Company, or a default in the payment of the redemption price, or a default in the payment of the repurchase price on a Repurchase Date, or a default in respect of a covenant or provisions of the Indenture which under Article X cannot be modified or amended without the consent of the holders of each or all Notes then outstanding or affected thereby. Any such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

          No reference herein to the Indenture and no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and any premium and interest on, this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

          Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.

          The Notes are issuable in fully registered form, without coupons, in denominations of $1,000 principal amount and any multiple of $1,000. At the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, without payment of any service charge but with payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration or exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of any other authorized denominations.

          At any time on or after December 19, 2013, the Notes may be redeemed at the option of the Company, in whole or in part, in cash, upon mailing a notice of such redemption not less than 30 days but not more than 60 days before the redemption date to the holders of Notes at their last registered addresses, all as provided in the Indenture, at 100% of the principal amount of the Notes to be redeemed, together with accrued and unpaid interest, if any, to, but excluding the Redemption Date; provided that if the Redemption Date is on a June 15 or December 15, then the interest payable on such date shall be paid to the holder of record on the preceding June 1 or December 1, respectively:

          The Company may not give notice of any redemption of the Notes if a default in the payment of interest or premium, if any, on the Notes has occurred and is continuing.

          The Notes are not subject to redemption through the operation of any sinking fund.

          If a Designated Event occurs at any time prior to maturity of the Notes, this Note will be repurchaseable on a Designated Event Repurchase Date, which is not less than 30 nor more than 60 days after such Designated Event, at the option of the holder of this Note at a repurchase

price equal to 100% of the principal amount thereof, together with accrued interest to (but excluding) the Redemption Date; provided that if such Designated Event Repurchase Date is a June 15 or December 15, the interest payable on such date shall be paid to the holder of record of this Note on the preceding June 1 or December 1, respectively. The Notes will be repurchaseable in multiples of $1,000 principal amount. The Company shall mail to all holders of record of the Notes a notice of the occurrence of a Designated Event and of the repurchase right arising as a result thereof on or before the 10^th day after the occurrence of such Designated Event. For a Note to be so repurchased at the option of the holder, the Company must receive at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, the form entitled “Option to Elect Repayment Upon a Designated Event” attached below duly completed, together with book-entry transfer of the Note, on or before the close of business on the Designated Event Repurchase Date.

          Subject to the terms and conditions, the Company shall become obligated to purchase, at the option of the holder, all or any portion of the Notes held by such holder, in cash, on December 15, 2013, December 15, 2016, December 15, 2021, December 15, 2026 and December 15, 2031, in whole multiples of $1,000 at a purchase price of 100% of the principal amount, plus any accrued and unpaid interest, on the Note up to, but not including, the Repurchase Date. To exercise such right, a holder shall deliver to the Company the form entitled “Repurchase Notice” attached below duly completed, together with book-entry transfer of the Note to the Trustee, at any time from the opening of business on the date that is ten (10) Business Days prior to such Repurchase Date until the close of business on the Repurchase Date.

          Holders have the right to withdraw any such election or Repurchase Notice by delivering to the designated Company representative a written notice of withdrawal up to the close of business on the Designated Event Repurchase Date or the Repurchase Date, as applicable, all as provided in the Indenture.

          If cash sufficient to pay the repurchase price of all Notes or portions thereof to be repurchased on the Designated Event Repurchase Date or repurchased as of the Repurchase Date is deposited with the Trustee (or other paying agent appointed by the Company), on the Business Day following such date, as applicable, interest will cease to accrue on such Notes (or portions thereof), and the holder thereof shall have no other rights as such other than the right to receive the repurchase price upon surrender of such Note.

          Subject to the occurrence of certain events and in compliance with the provisions of the Indenture, the holder hereof has the right to convert the principal amount hereof, or any portion of such principal amount which is a multiple of $1,000, into cash and, if applicable, fully paid and non-assessable shares of Common Stock. The initial Conversion Rate of the Notes is 24.5525 shares of Common Stock for each $1,000 principal amount of Notes, subject to adjustment as set forth in the Indenture. The Company will settle each $1,000 principal amount of Notes being converted in cash and, if applicable, shares of fully paid Common Stock by delivering, on the third Trading Day immediately following the last day of the related Observation Period, cash and, if applicable, shares of Common Stock equal to the sum of the Daily Settlement Amounts for each of the 10 Trading Days during the related Observation Period. The Daily Settlement Amounts shall be determined by the Company promptly following

the last day of the Observation Period. A Note in respect of which a holder is exercising its right to require repurchase upon a Designated Event or repurchase on a Repurchase Date may be converted only if such holder withdraws its election to exercise either such right in accordance with the terms of the Indenture.

          A holder may convert a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment shall be made for dividends on the Common Stock except as provided in the Indenture. On conversion of a Note, except for conversion during the period from the close of business on any record date immediately preceding any interest payment date to the close of business on the Business Day immediately preceding such interest payment date, in which case the holder on such record date shall receive the interest payable on such interest payment date, that portion of accrued and unpaid interest on the converted Note attributable to the period from the most recent interest payment date (or, if no interest payment date has occurred, from the date of original issuance of the Notes) through the Conversion Date shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the holder thereof through delivery of cash and, if applicable, shares of Common Stock (together with the cash payment, if any, in lieu of fractional shares), in exchange for the Note being converted pursuant to the provisions hereof.

          Notes or portions thereof surrendered for conversion during the period from the close of business on any record date immediately preceding any interest payment date to the close of business on the Business Day immediately preceding such interest payment date shall be accompanied by payment to the Company or its order, in immediately available funds or other funds acceptable to the Company, of an amount equal to the interest payable on such interest payment date with respect to the principal amount of Notes or portions thereof being surrendered for conversion; provided that no such payment need be made if (1) the Company has specified a Repurchase Date that occurs during the period from the close of business on a record date to the close of business on the Business Day immediately preceding the interest payment date to which such record date relates, (2) the Company has specified a Designated Event Repurchase Date during such period, (3) any overdue interest exists on the Conversion Date with respect to the Notes converted, only to the extent of overdue interest or (4) with respect to any conversion on or following the record date immediately preceding the maturity date.

          No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid in cash based upon the Closing Sale Price of the Common Stock as provided in Section 14.03.

          To convert a Note, a holder must (a) furnish appropriate endorsements and transfer documents if required by the Note registrar of the Conversion Agent, (b) pay any transfer or similar tax, if required, (c) except as set forth in Section 14.02, pay funds equal to the interest payable on the next interest payment date, (d) comply with DTC’s procedures for converting a beneficial interest in a Global Note and (e) to the extent of certificated Notes complete and manuallly sign the Conversion Notice and deliver it, together with the Note, to the Conversion Agent.

          The Conversion Rate will be adjusted as set forth in Sections 14.05 and 14.06.

          Any Notes called for redemption, unless surrendered for conversion by the holders thereof on or before the close of business on the Business Day preceding the Redemption Date, may be deemed to be redeemed from the holders of such Notes for an amount equal to the applicable redemption price, together with accrued but unpaid interest to, but excluding, the Redemption Date, by one or more investment banks or other purchasers who may agree with the Company (i) to purchase such Notes from the holders thereof and convert them into cash and, if applicable, shares of the Company’s Common Stock and (ii) to make payment for such Notes as aforesaid to the Trustee in trust for the holders.

          Upon due presentment for registration of transfer of this Note at the office or agency of the Company maintained for that purpose in accordance with the terms of the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture, without charge except for any tax, assessment or other governmental charge imposed in connection therewith.

          The Company, the Trustee, any authenticating agent, any paying agent, any Conversion Agent and any Note registrar may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon made by anyone other than the Company or any Note registrar) for the purpose of receiving payment hereof, or on account hereof, for the conversion hereof and for all other purposes, and neither the Company nor the Trustee nor any other authenticating agent nor any paying agent nor other Conversion Agent nor any Note registrar shall be affected by any notice to the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, satisfy and discharge liability for monies payable on this Note.

          No recourse for the payment of the principal of, or any premium or interest on, this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

          Terms used in this Note and defined in the Indenture are used herein as therein defined.

ABBREVIATIONS

          The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations.

TEN COM -		as tenants in common		UNIF GIFT MIN ACT -___Custodian ___
TEN ENT -		as tenant by the entireties		(Cust)                                (Minor)
JT TEN -		as joint tenants with right of survivorship and not as tenants in common		under Uniform Gifts to Minors Act ________________________                (State)

Additional abbreviations may also be used though not in the above list.

CONVERSION NOTICE

TO:		AGCO CORPORATION UNION BANK OF CALIFORNIA, N.A.

          The undersigned registered owner of this Note hereby irrevocably exercises the option to convert this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated, into cash or, if applicable, a combination of cash and shares of Common Stock of AGCO Corporation in accordance with the terms referred to in this Note, and directs that a check in the amount of said cash and any shares issuable and deliverable upon such conversion, together with any amount in payment for fractional shares and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares or any portion of this Note not converted are to be issued in the name of a person other than the undersigned, the undersigned will provide the appropriate information below and pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Note.

Dated: ________________________

		Name of holder or underlying participant of Depository
		Signature(s)
		Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
		Signature Guarantee

          Fill in the registration of shares of Common Stock if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:

(Name)
(Street Address)
(City, State and Zip Code)
Please print name and address
Principal amount to be converted (if less than all):
$
Social Security or Other Taxpayer Identification Number:

OPTION TO ELECT REPURCHASE
UPON A DESIGNATED EVENT

TO:		AGCO CORPORATION UNION BANK OF CALIFORNIA, N.A.

          The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a notice from AGCO Corporation (the “Company”) as to the occurrence of a Designated Event with respect to the Company and requests and instructs the Company to repurchase the entire principal amount of this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated, in accordance with the terms referred to in this Note at the price of 100% of such entire principal amount or portion thereof, together with accrued interest to, but excluding, the Designated Event Repurchase Date, to the registered holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.

Dated: ________________________

		Signature(s)
		NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever. Principal amount to be repaid (if less than all):
		Social Security or Other Taxpayer Identification Number

REPURCHASE NOTICE

TO:		AGCO CORPORATION UNION BANK OF CALIFORNIA, N.A.

The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a notice from AGCO Corporation (the “Company”) regarding the right of holders to elect to require the Company to repurchase the Notes and requests and instructs the Company to repay the entire principal amount of this Note, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms at the price of 100% of such entire principal amount or portion thereof, together with accrued interest to, by excluding, the Repurchase Date, to the registered holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. The Notes shall be repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in the Indenture.

          Dated:

          Signature(s):

          NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

          Note Certificate Number (if applicable):

          Principal amount to be repurchased (if less than all):

          Social Security or Other Taxpayer Identification Number:

ASSIGNMENT

          For value received ___hereby sell(s) assign(s) and transfer(s) unto ___(Please insert social security or other Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably constitutes and appoints ___attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.

Dated:
		Signature(s)
		Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Note registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Note registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
		Signature Guarantee

NOTICE: The signature on the Conversion Notice, the Option to Elect Repurchase Upon a Designated Event, the Repurchase Notice or the Assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

Schedule I

AGCO CORPORATION
1.25% Convertible Senior Subordinated Note Due 2036

No. _______

										Authorized Signature
							Notation Explaining Principal			of Trustee or
	Date			Principal Amount			Amount Recorded			Custodian

EXHIBIT B

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes described in the within-named Indenture.

UNION BANK OF CALIFORNIA, N.A., as Trustee

By: __________________
      Authorized Signatory

Dated:

EXHIBIT C

TABLE OF ADDITIONAL SHARES IN EVENT OF FUNDAMENTAL CHANGE
PURSUANT TO SECTION 14.06
OF
INDENTURE

     Subject to the terms of Section 14.06 of the Indenture, holders who convert their Notes in connection with a Fundamental Change will be, under certain circumstances, entitled to a “make-whole” premium in the form of an increase in the Conversion Rate for Notes surrendered for conversion in connection with such Fundamental Change. The following table sets forth the Stock Price, Effective Date and number of Additional Shares (the “make-whole shares”) to be added to the Conversion Rate per $1,000 principal amount of the Notes.

		Effective Date
		December 4,				December 15,				December 15,				December 15,				December 15,				December 15,				December 15,				December 15,
Stock Price		2006				2007				2008				2009				2010				2011				2012				2013
$31.33			7.3658				7.3658				7.3658				7.3658				7.3658				7.3658				7.3658				7.3658
$32.00			7.0814				7.1024				7.0598				7.2498				7.1904				7.0428				6.7458				6.6975
$34.00			6.3184				6.3376				6.2992				6.3334				6.2027				5.9565				5.4904				4.8593
$36.00			5.6658				5.6833				5.6485				5.5598				5.3749				5.0553				4.4656				3.2253
$38.00			5.1034				5.1195				5.0879				4.9028				4.6775				4.3050				3.6312				1.7633
$40.00			4.6156				4.6305				4.6017				4.3414				4.0869				3.6784				2.9530				0.4475
$45.00			3.6476				3.6599				3.6367				3.2572				2.9645				2.5188				1.7688				0.0000
$50.00			2.9387				2.9491				2.9302				2.4961				2.1976				1.7616				1.0745				0.0000
$60.00			1.9963				2.0040				1.9909				1.5462				1.2794				0.9192				0.4311				0.0000
$70.00			1.4206				1.4265				1.4171				1.0153				0.7966				0.5232				0.2058				0.0000
$80.00			1.0468				1.0514				1.0444				0.6986				0.5253				0.3239				0.1203				0.0000
$100.00			0.6109				0.6141				0.6099				0.3665				0.2606				0.1522				0.0617				0.0000
$120.00			0.3799				0.3822				0.3796				0.2108				0.1457				0.0852				0.0387				0.0000
$140.00			0.2451				0.2468				0.2450				0.1275				0.0867				0.0514				0.0247				0.0000
$160.00			0.1610				0.1623				0.1611				0.0787				0.0525				0.0312				0.0150				0.0000
$180.00			0.1062				0.1072				0.1063				0.0483				0.0314				0.0182				0.0083				0.0000

     The exact Stock Prices and Effective Dates may not be set forth in the table, in which case:

•

if the Stock Price is between two Stock Prices in the table or the Effective Date is between two Effective Dates in the table, the number of make-whole shares will be determined by straight-line interpolation between the number of make-whole shares set forth for the higher and lower Stock Prices and/or the earlier and later Effective Dates, as applicable, based on a 365-day year;

•

if the Stock Price is in excess of $180 per share of Common Stock (subject to adjustment in the same manner as the Stock Prices set forth in the table), no make-whole shares will be added to the Conversion Rate; and

•

if the Stock Price is less than $31.33 per share of Common Stock (subject to adjustment in the same manner as the Stock Prices set forth in the table), no make-whole shares will be added to the Conversion Rate.

     The Conversion Rate of the Notes shall not exceed 31.9183 per $1,000 principal amount of such Notes, subject to adjustment in the same manner as the Conversion Rate.

EXHIBIT 99.1

Information Relating to Part II, Item 14. — Other Expenses of Issuance and Distribution

The expenses in connection with the issuance and distribution of $201,250,000 aggregate principal amount of 1.25% Convertible Senior Subordinated Notes due 2036 of AGCO Corporation, registered pursuant to Registration Statement on Form S-3 (Registration No. 333-138964) filed on November 27, 2006, other than underwriting discounts and commissions, are set forth in the following table. All amounts are estimated except the Securities and Exchange Commission registration fee.

SEC registration fee		$	9,606	1
New York Stock Exchange listing fee			—
Printing and engraving expenses			25,394
Legal fees and expenses			165,000
Accounting fees and expenses			40,000
Transfer Agent and registrar fee			10,000
Miscellaneous			—
Total		$	250,000

(1)

This amount does not include $11,928 of the filing fee offset pursuant to Rule 457(p) of the Securities Act for fees with respect to $147,448,000 aggregate initial offering price of securities that were previously registered pursuant to Registration Statement no. 333-104352 and not sold thereunder.