exv4w1






Exhibit 4.1




 






INTERMUNE, INC.




To




THE BANK OF NEW YORK TRUST COMPANY, N.A.,

as Trustee




 






INDENTURE




Dated as of




June 24, 2008




 






5.00% Convertible Senior Notes Due 2015




 







 









 








CROSS-REFERENCE TABLE




	 	 	 	 	 	 	 	 	 
	TIA	 	 	 	 	Indenture	 
	Section	 	 	 	 	Section	 
	 	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; 7.11 	 
	 	 	 	 	(c)
	 	 	N.A.	 
	 	311	 	 	(a)
	 	 	7.13	 
	 	 	 	 	(b)
	 	 	7.13	 
	 	 	 	 	(c)
	 	 	N.A.	 
	 	312	 	 	(a)
	 	 	5.01; 5.02	 
	 	 	 	 	(b)
	 	 	5.02	(b)
	 	 	 	 	(c)
	 	 	5.02	(c)
	 	313	 	 	(a)
	 	 	5.03	(a)
	 	 	 	 	(b)
	 	 	5.03	(a)
	 	 	 	 	(c)
	 	 	5.03	(a)
	 	 	 	 	(d)
	 	 	5.03	(b)
	 	314	 	 	(a)
	 	 	5.04	 
	 	 	 	 	(b)
	 	 	N.A.	 
	 	 	 	 	(c)(1)
	 	 	15.05	 
	 	 	 	 	(c)(2)
	 	 	15.05	 
	 	 	 	 	(c)(3)
	 	 	N.A.	 
	 	 	 	 	(d)
	 	 	N.A.	 
	 	 	 	 	(e)
	 	 	15.05	 
	 	 	 	 	(f)
	 	 	N.A.	 
	 	315	 	 	(a)
	 	 	7.01	 
	 	 	 	 	(b)
	 	 	6.08	 
	 	 	 	 	(c)
	 	 	7.01	 
	 	 	 	 	(d)
	 	 	7.01	 
	 	 	 	 	(e)
	 	 	6.09	 
	 	316	 	 	(a)
	 	 	8.01	 
	 	 	 	 	(a)(1)(A)
	 	 	8.01; 6.01	 
	 	 	 	 	(a)(1)(B)
	 	 	6.07	 
	 	 	 	 	(a)(2)
	 	 	N.A.	 
	 	 	 	 	(b)
	 	 	6.04	 
	 	 	 	 	(c)
	 	 	8.01	 
	 	317	 	 	(a)(1)
	 	 	6.02; 6.03; 6.05	 
	 	 	 	 	(a)(2)
	 	 	6.02; 6.05	 
	 	 	 	 	(b)
	 	 	7.05	 
	 	318	 	 	(a)
	 	 	15.07	 






This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this
Indenture.



 









 





TABLE OF CONTENTS



 





	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE 1
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2
	 	 	 	 
	 Issue, Description, Execution, Registration And Exchange Of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 2.01. Designation Amount And Issue Of Notes
	 	 	10	 
	Section 2.02. Form of Notes
	 	 	10	 
	Section 2.03. Date And Denomination Of Notes; Payments Of Interest
	 	 	11	 
	Section 2.04. Execution of Notes
	 	 	12	 
	Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer
	 	 	13	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	20	 
	Section 2.07. Temporary Notes
	 	 	21	 
	Section 2.08. Cancellation of Notes
	 	 	21	 
	Section 2.09. CUSIP Numbers
	 	 	22	 
	Section 2.10. Additional Notes
	 	 	22	 
	Section 2.11. Ranking
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 3
	 	 	 	 
	 Redemption Of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 3.01. Redemption At Option of Holders Upon a Designated Event
	 	 	22	 
	Section 3.02. The Company’s Right to Elect Manner of Redemption upon a Designated Event
	 	 	25	 
	Section 3.03. Effect of Redemption Notice
	 	 	28	 
	Section 3.04. Deposit of Redemption Price
	 	 	28	 
	Section 3.05. Repayment to the Company
	 	 	29	 
	Section 3.06. Redemption Upon Changes In Withholding Taxes
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 4
	 	 	 	 
	 Particular Covenants Of The Company
	 	 	 	 
	 
	 	 	 	 
	Section 4.01. Payment of Principal, Premium and Interest
	 	 	30	 
	Section 4.02. Maintenance of Office or Agency
	 	 	30	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	31	 
	Section 4.04. Provisions as to Paying Agent
	 	 	31	 
	Section 4.05. Existence
	 	 	32	 
	Section 4.06. Maintenance of Properties
	 	 	32	 
	Section 4.07. Payment of Taxes and Other Claims
	 	 	33	 






 









 






	 	 	 	 	 
	 	 	 	Page	 
	Section 4.08.  Rule 144A Information Requirement
	 	 	33	 
	Section 4.09.  Stay, Extension and Usury Laws
	 	 	33	 
	Section 4.10.  Compliance Certificate
	 	 	34	 
	Section 4.11.  Payment Of Additional Amounts
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 5
	 	 	 	 
	 Noteholders’ Lists And Reports By The Company And The Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 5.01.  Noteholders’ Lists
	 	 	36	 
	Section 5.02.  Preservation And Disclosure Of Lists
	 	 	37	 
	Section 5.03.  Reports By Trustee.
	 	 	37	 
	Section 5.04.  Reports by Company
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 6
	 	 	 	 
	 Remedies Of The Trustee And Noteholders On An Event Of Default
	 	 	 	 
	 
	 	 	 	 
	Section 6.01.  Events Of Default
	 	 	38	 
	Section 6.02.  Payments of Notes on Default; Suit Therefor
	 	 	40	 
	Section 6.03.  Application of Monies Collected By Trustee
	 	 	42	 
	Section 6.04.  Proceedings by Noteholder
	 	 	43	 
	Section 6.05.  Proceedings By Trustee
	 	 	44	 
	Section 6.06.  Remedies Cumulative And Continuing
	 	 	44	 
	Section 6.07.  Direction of Proceedings and Waiver of Defaults By Majority of Noteholders
	 	 	44	 
	Section 6.08.  Notice of Defaults
	 	 	45	 
	Section 6.09.  Undertaking To Pay Costs
	 	 	45	 
	 
	 	 	 	 
	ARTICLE 7
	 	 	 	 
	 The Trustee
	 	 	 	 
	 
	 	 	 	 
	Section 7.01.  Duties and Responsibilities of Trustee
	 	 	46	 
	Section 7.02.  Reliance on Documents, Opinions, Etc
	 	 	47	 
	Section 7.03.  No Responsibility For Recitals, Etc
	 	 	49	 
	Section 7.04.  Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes
	 	 	49	 
	Section 7.05.  Monies to Be Held in Trust
	 	 	49	 
	Section 7.06.  Compensation and Expenses of Trustee
	 	 	49	 
	Section 7.07.  Officers’ Certificate As Evidence
	 	 	50	 
	Section 7.08.  Conflicting Interests of Trustee
	 	 	50	 
	Section 7.09.  Eligibility of Trustee
	 	 	51	 
	Section 7.10.  Resignation or Removal of Trustee
	 	 	51	 
	Section 7.11.  Acceptance by Successor Trustee
	 	 	52	 
	Section 7.12.  Succession By Merger
	 	 	53	 
	Section 7.13.  Preferential Collection of Claims
	 	 	54	 






ii









 






	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE 8
	 	 	 	 
	 The Noteholders
	 	 	 	 
	 
	 	 	 	 
	Section 8.01.   Action By Noteholders
	 	 	54	 
	Section 8.02.    Proof of Execution by Noteholders
	 	 	54	 
	Section 8.03.    Who Are Deemed Absolute Owners
	 	 	54	 
	Section 8.04.    Company-owned Notes Disregarded
	 	 	55	 
	Section 8.05.    Revocation Of Consents, Future Holders Bound
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 9
	 	 	 	 
	 Meetings Of Noteholders
	 	 	 	 
	 
	 	 	 	 
	Section 8.01.    Purpose Of Meetings
	 	 	56	 
	Section 8.02.    Call Of Meetings By Trustee
	 	 	56	 
	Section 8.03.    Call Of Meetings By Company Or Noteholders
	 	 	56	 
	Section 8.04.    Qualifications For Voting
	 	 	57	 
	Section 8.05.    Regulations
	 	 	57	 
	Section 8.06.    Voting
	 	 	57	 
	Section 8.07.    No Delay Of Rights By Meeting
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 10
	 	 	 	 
	 Supplemental Indentures
	 	 	 	 
	 
	 	 	 	 
	Section 10.01.    Supplemental Indentures Without Consent of Noteholders
	 	 	58	 
	Section 10.02.    Supplemental Indenture With Consent Of Noteholders
	 	 	60	 
	Section 10.03.    Effect Of Supplemental Indenture
	 	 	60	 
	Section 10.04.    Notation On Notes
	 	 	61	 
	Section 10.05.    Evidence Of Compliance Of Supplemental Indenture To Be Furnished To Trustee
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 11
	 	 	 	 
	 Consolidation, Merger, Sale, Conveyance And Lease
	 	 	 	 
	 
	 	 	 	 
	Section 11.01.    Company May Consolidate On Certain Terms
	 	 	61	 
	Section 11.02.    Successor To Be Substituted
	 	 	62	 
	Section 11.03.    Opinion Of Counsel To Be Given To Trustee
	 	 	63	 
	 
	 	 	 	 
	ARTICLE 12
	 	 	 	 
	 Satisfaction And Discharge Of Indenture
	 	 	 	 
	 
	 	 	 	 
	Section 12.01.    Discharge Of Indenture
	 	 	63	 
	Section 12.02.    Deposited Monies To Be Held In Trust By Trustee
	 	 	63	 
	Section 12.03.    Paying Agent To Repay Monies Held
	 	 	64	 
	Section 12.04.    Return Of Unclaimed Monies
	 	 	64	 
	Section 12.05.    Reinstatement
	 	 	64	 






iii









 






	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE 13
	 	 	 	 
	 Immunity Of Incorporators, Stockholders, Officers And Directors
	 	 	 	 
	 
	 	 	 	 
	Section 13.01.  Indenture And Notes Solely Corporate Obligations
	 	 	64	 
	ARTICLE 14
	 	 	 	 
	Conversion Of Notes
	 	 	 	 
	 
	 	 	 	 
	Section 14.01.  Right To Convert
	 	 	65	 
	Section 14.02. Exercise Of Conversion Privilege; Issuance Of Common Stock On Conversion; No Adjustment For Interest Or Dividends
	 	 	65	 
	Section 14.03.  Cash Payments in Lieu of Fractional Shares
	 	 	67	 
	Section 14.04.  Conversion Rate
	 	 	68	 
	Section 14.05.  Adjustment Of Conversion Rate
	 	 	68	 
	Section 14.06.  Effect Of Reclassification, Consolidation, Merger or Sale
	 	 	76	 
	Section 14.07.  Taxes On Shares Issued
	 	 	78	 
	Section 14.08.  Reservation of Shares, Shares to Be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock
	 	 	78	 
	Section 14.09.  Responsibility Of Trustee
	 	 	79	 
	Section 14.10. Notice To Holders Prior To Certain Actions
	 	 	80	 
	Section 14.11.  Stockholder Rights Plans
	 	 	80	 
	Section 14.12.  Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection With A Fundamental Change and A Withholding Tax
Redemption
	 	 	81	 
	 
	 	 	 	 
	ARTICLE 15
	 	 	 	 
	Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 15.01.  Provisions Binding On Company’s Successors
	 	 	84	 
	Section 15.02.  Official Acts By Successor Corporation
	 	 	84	 
	Section 15.03.  Addresses For Notices, Etc
	 	 	84	 
	Section 15.04.  Governing Law
	 	 	85	 
	Section 15.05.  Evidence Of Compliance With Conditions Precedent, Certificates To Trustee
	 	 	85	 
	Section 15.06.  Legal Holidays
	 	 	85	 
	Section 15.07.  Trust Indenture Act
	 	 	86	 
	Section 15.08.  No Security Interest Created
	 	 	86	 
	Section 15.09.  Benefits Of Indenture
	 	 	86	 
	Section 15.10.  Table Of Contents, Headings, Etc
	 	 	86	 
	Section 15.11.  Authenticating Agent
	 	 	86	 
	Section 15.12.  Execution In Counterparts
	 	 	87	 
	Section 15.13.  Severability
	 	 	87	 
	 
	 	 	 	 
	Exhibit A Form of Note
	 	 	 A-1	 







vi









 








INDENTURE




     INDENTURE dated as of June 24, 2008 between InterMune, Inc., a Delaware corporation
(hereinafter called the “Company”), having its principal office at 3280 Bayshore Boulevard,
Brisbane, California 94005 and The Bank of New York Trust Company, 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
5.00% Convertible Senior Notes Due 2015 (hereinafter called the “Notes”), in an aggregate principal
amount not to exceed $85,000,000 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 Designated Event, and a form of conversion
notice to be borne by the Notes are to be substantially in the forms hereinafter provided for; 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 1

Definitions




     Section 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the respective meanings
specified in this Section 1.01. All other terms used



1









 







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 Article include the plural as well as the singular.



     “0.25% Convertible Notes” means the convertible senior notes issued under the 2004 Indenture.



     “2004 Indenture” means the Indenture dated as of February 27, 2004 between the Company and The
Bank of New York Trust Company, N.A., as Trustee, under which the Company’s 0.25% Convertible
Senior Notes Due 2011 are issued and outstanding.



     “Additional Amounts” has the meaning specified in Section 4.11.



     “Additional Notes” has the meaning specified in Section 2.10.



     “Adjustment Event” has the meaning specified in Section 14.05(k).



     “Agent Members” has the meaning specified in Section 2.05(b)(v).



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



     “Applicable Price” has the meaning specified in Section 14.12(c).



     “Board of Directors” means the Board of Directors of the Company or a committee of such Board
duly authorized to act for it hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.



     “Business Day” means any day except a Saturday, Sunday or legal holiday on which banking
institutions in The City of New York or the city in
which the Corporate Trust Office is located are authorized or obligated by law, regulation or
executive order to close.



2









 





     “Closing Sale Price” of the shares of Common Stock on any date means the closing sale price
per share (or, if no closing sale price is reported, the average of the closing bid and ask prices
or, if more than one in either case, the average of the average closing bid and the average closing
ask prices) on such date as reported in composite transactions for the principal United States
securities exchange on which shares of Common Stock are traded or, if the shares of Common Stock
are not listed on a United States national or regional securities exchange, as reported by the
Nasdaq Stock Market or by the National Quotation Bureau Incorporated. In the absence of such
quotations, the Company shall be entitled to determine the Closing Sale Price on the basis it
considers appropriate. The Closing Sale Price shall be determined without reference to extended or
after hours trading.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Common Stock” means any stock of any class of the Company which has no preference in respect
of dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption by the Company.
Subject to the provisions of Section 14.06, however, shares issuable on conversion of Notes shall
include only shares of the class designated as common stock of the Company at the date of this
Indenture (namely, the Common Stock, par value $0.001 per share) or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which are not subject to redemption by
the Company; provided that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable on conversion shall be substantially in the proportion
which the total number of shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such reclassifications.



     “Company” means the corporation named as the “Company” in the first paragraph of this
Indenture, and, subject to the provisions of Article 11 and Section 14.06, shall include its
successors and assigns.



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



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



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



3









 





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



     “Corporate Trust Office” or other similar term, means the designated office of the Trustee at
which at any particular time its corporate trust business as it relates to this Indenture shall be
administered, which office is, at the date as of which this Indenture is dated, is 700 South Flower
Street, Suite 500, Los Angeles, CA 90017, Attention: Corporate Trust Administration.



     “Current Market Price” has the meaning specified in Section 14.05(g)(i).



     “Custodian” means The Bank of New York Trust Company, N.A., as custodian with respect to the
Notes in global form, or any successor entity thereto.



     “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.



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



     “Designated Event Expiration Time” has the meaning specified in Section 3.01(b).



     “Designated Event Notice” has the meaning specified in Section 3.01(b).



     “Designated Event Redemption Date” has the meaning specified in Section 3.01(a).



     “Designated Event Redemption Price” has the meaning specified in Section 3.01(a).



     “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.



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



     “Effective Date” has the meaning specified in Section 14.12(b).



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



4









 





     “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.



     “Expiration Time” has the meaning specified in Section 14.05(f).



     “Ex-Dividend Date” has the meaning specified in Section 14.05(d).



     “Fair Market Value” has the meaning specified in Section 14.05(g)(ii).



     “Fundamental Change” means (i) the acquisition by any person, including any syndicate or group
deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition
transaction or series of purchase, merger or other acquisition transactions of shares of the
Company’s capital stock entitling that 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 any acquisition by us, any of the Company’s future subsidiaries or any of the Company’s
employee benefit plans (except that such person shall be deemed to have beneficial ownership of all
securities that such person has the right to acquire, whether such right is currently exercisable
or is exercisable only upon the occurrence of a subsequent condition); or (ii) the consolidation or
merger of us with or into any other person, any merger of another person into us, or any
conveyance, transfer, sale, lease or other disposition of all or substantially all of the Company’s
properties and assets to another person, other than any transaction (x) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of the Company’s
capital stock; and (y) pursuant to which holders of the Company’s capital stock immediately prior
to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all shares of the Company’s capital stock entitled to vote generally in
elections of directors of the continuing or surviving person immediately after giving effect to
such transaction; and (z) any merger solely for the purpose of changing the Company’s jurisdiction
of incorporation and resulting in a reclassification, conversion, or exchange of outstanding shares
of common stock solely into shares of common stock of a parent entity. However, a Fundamental
Change will be deemed not to have occurred if at least 90% of the consideration in the transaction
or transactions constituting a Fundamental Change consists of shares of common stock, depositary
receipts or other certificates representing common equity interests traded or to be traded
immediately following such Fundamental Change on a national securities exchange and as a result of
the transaction or transactions, the obligations of the Company under the Notes are expressly
assumed by the person issuing such consideration in such transaction or transactions and the Notes
become convertible solely into such common stock (and any rights attached thereto), depositary
receipts or other certificates representing common equity interests.



5









 





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



     “Indebtedness” means, with respect to any Person, and without duplication, whether recourse is
to all or a portion of the assets of such Person and whether or not contingent, (a) all
indebtedness, obligations and other liabilities of such Person for borrowed money (including
obligations of the Person in respect of overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from banks, whether or
not evidenced by notes or similar instruments) or evidenced by bonds, debentures, notes or similar
instruments, other than any account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with the obtaining of materials or
services; (b) all reimbursement obligations and other liabilities of such Person with respect to
letters of credit, bank guarantees or bankers’ acceptances; (c) all obligations and liabilities in
respect of leases of such Person required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations on the balance sheet of such
Person and all obligations and other liabilities under any lease or related document (including a
purchase agreement) in connection with the lease of real property which provides that such Person
is contractually obligated to purchase or cause a third party to purchase the leased property and
thereby guarantee a minimum residual value of the leased property to the lessor and the obligations
of such Person under such lease or related document to purchase or to cause a third party to
purchase such leased property; (d) all net obligations of such Person with respect to an interest
rate or other swap, cap or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or agreement; (e) all direct or indirect
guaranties or similar agreements by such Person in respect of, and obligations or liabilities of
such Person to purchase or otherwise acquire or otherwise assure a creditor against loss in respect
of, indebtedness, obligations or liabilities of another Person of the kind described in clauses (a)
through (d); (f) any indebtedness or other obligations described in clauses (a) through (e) secured
by any mortgage, pledge, lien or other encumbrance existing on property which is owned or held by
such Person, regardless of whether the indebtedness or other obligation secured thereby shall have
been assumed by such Person; and (g) any and all deferrals, renewals, extensions and refundings of,
or amendments, modifications or supplements to, any indebtedness, obligation or liability of the
kind described in clauses (a) through (f).



     “Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.



     “Interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes.



     “Make-Whole Applicable Increase” has the meaning specified in Section 14.12(b).



6









 





     “Make-Whole Consideration” has the meaning specified in Section 14.12(a).



     “Make-Whole Conversion Period” has the meaning specified in Section 14.12(a).



     “Market Price” means 95% of the average of the Closing Sale Price of one share of common stock
for the 5-Trading Day period immediately preceding and including the third Business Day immediately
preceding the applicable Designated Event Redemption Date (or if the third Business Day immediately
preceding the relevant date of determination is not a Trading Day, then on the last Trading Day
immediately preceding such third Business Day).



     “Non-Electing Share” has the meaning specified in Section 14.06.



     “Note” or “Notes” means any Note or Notes, as the case may be, authenticated and delivered
under this Indenture, including any Global Note.



     “Note Register” has the meaning specified in Section 2.05.



     “Note Registrar” has the meaning specified in Section 2.05.



     “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.



     “Officers’ Certificate”, when used with respect to the Company, means a certificate signed by
any of the Chairman of the Board, the Chief Executive Officer, the President or any Vice President
(whether or not designated by a number or numbers or word or words added before or after the title
"Vice President”) and any of the Treasurer or any Assistant Treasurer, or the Secretary or
Assistant Secretary of the Company.



     “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.



     “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 under
this Indenture, except:



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



     (b) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06; and



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     (c) Notes converted into Common Stock pursuant to Article 14 and Notes deemed not outstanding
pursuant to Article 3.



     “Person” means a corporation, an association, a partnership, a limited liability company, an
individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof.



     “Portal Market” means The Portal Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.



     “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note, and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note that it
replaces.



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



     “Purchased Shares” has the meaning specified in Section 14.05(f).



     “qualified institutional buyer” has the meaning assigned to it in Rule 144A.



     “Record Date” has the meaning specified in Section 14.05(g)(iii).



     “Redemption Notice” has the meaning specified in Section 3.01(a)(i).



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



     “Responsible Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant treasurer or trust officer with direct responsibility for the administration
of this Indenture and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such person’s knowledge of any familiarity with
the particular subject.



     “Restricted Securities” has the meaning specified in Section 2.05(c).



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



     “Securities” has the meaning specified in Section 14.05(d).



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



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     “Share Delivery Date” has the meaning specified in Section 14.02(b).



     “Significant Subsidiary” means, as of any date of determination, a Subsidiary of the Company
that would constitute a “significant subsidiary” as such term is defined under Rule 1-02(w) of
Regulation S-X of the Commission as in effect on the date of this Indenture.



     “Subsidiary” means, with respect to any Person, (i) any corporation, association or other
business entity of which more than 50% of the total voting power of shares of capital stock or
other equity interest entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or managing general
partner of which is such Person or a subsidiary of such Person or (b) the only general partners of
which are such Person or one or more subsidiaries of such Person (or any combination thereof).



     “Taxes” has the meaning specified in Section 4.11.



     “Termination of Trading” means the termination of trading of Company’s Common Stock (or other
common stock into which the Notes are at such time convertible) on any United States national
securities exchange, following which the Company’s Common Stock (or other common stock into which
the Notes are at such time convertible) is no longer approved for trading on any United States
system of automated dissemination of quotations and security prices or listed for trading on a
United States national securities exchange.



     “Trading Day” has the meaning specified in Section 14.05(g)(iv).



     “Trigger Event” has the meaning specified in Section 14.05(d).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of this Indenture, except as provided in Sections 10.03; 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 The Bank of New York Trust Company, N.A., 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.



     “Withholding Tax Redemption” has the meaning specified in Section 3.06.



9









 





ARTICLE 2

Issue, Description, Execution, Registration And Exchange Of Notes




     Section 2.01. Designation Amount And Issue Of Notes. The Notes shall be designated as “5.00% Convertible
Senior Notes Due 2015”. Notes not to exceed the aggregate principal amount of $85,000,000, (except
pursuant to Sections 2.05, 2.06, 2.10, 3.01 and 14.02 hereof) upon the execution of this Indenture,
or from time to time thereafter, 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, Chief Executive Officer,
President or any Vice President (whether or not designated by a number or numbers or word or words
added before or after the title “Vice President”), the Treasurer or any Assistant Treasurer or the
Secretary or Assistant Secretary, without any further action by the Company hereunder.



     Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by
such Notes shall be substantially in the form set forth in Exhibit A. The terms and provisions
contained in the form of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.



     Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be tradable on The
Portal Market or as may be required for the Notes to be tradable on any other market developed for
trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be listed, or to conform
to usage, or to indicate any special limitations or restrictions to which any particular Notes are
subject.



     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 2.05(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
Section 2.05(a), beneficial owners of a Global Note shall not be



10









 







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, 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 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 the holder of such Note.



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



     The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any record date with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date, except that the interest
payable upon redemption upon the occurrence of a Designated Event will be payable to the Person to
whom principal is payable pursuant to such redemption. Interest shall be payable at the office of
the Company maintained by the Company for such purposes in the Borough of Manhattan, City of New
York, which shall initially be an office or agency of the Trustee. The Company shall pay interest
(i) on any Notes in certificated form by check mailed to the address of the Person entitled thereto
as it appears in the Note Register (or upon written notice by such Person, by wire transfer in
immediately available funds, if such Person is entitled to interest on aggregate principal in
excess of $2 million) or (ii) on any Global Note by wire transfer of immediately available funds to
the account of the Depositary or its nominee. The term “record date” with respect to any interest
payment date shall mean the February 15 or August 15 preceding the applicable March 1 or September
1 interest payment date, respectively.



     Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any March 1 or September 1 (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Noteholder on the relevant record date
by virtue of his having been such Noteholder, and such Defaulted Interest shall be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:



11









 





     (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (25) days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the date of the proposed payment, and not less
than ten (10) days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first-class postage prepaid, to each holder at his
address as it appears in the Note Register, not less than ten (10) days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the special record date
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes) are registered at the close of business on such
special record date and shall no longer be payable pursuant to the following clause (2) of this
Section 2.03.



     (2) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on
which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.



     Section 2.04. Execution of Notes. 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, Chief Executive Officer, President
or any Vice President (whether or not designated by a number or numbers or word or words added
before or after the title “Vice President”).
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 15.11), shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee (or such an authenticating agent) upon



12









 







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 of this Indenture.



     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 of this Indenture any such person was not such an officer.



     Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer



     (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 4.02 being herein sometimes collectively referred to as the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note Register shall be in written form or in
any form capable of being converted into written form within a reasonably prompt period of time.
The Trustee is hereby appointed “Note Registrar” for the purpose of registering Notes and transfers
of Notes as herein provided. The Company may appoint one or more co-registrars in accordance with
Section 4.02.



     Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.



     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes which the
Noteholder making the exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.



     All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Company, evidencing the same debt, and



13









 







entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or exchange.



     All Notes presented or surrendered for registration of transfer or for exchange, redemption,
or conversion shall (if so required by the Company or the Note Registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form satisfactory to the Company,
and the Notes shall be duly executed by the Noteholder thereof or his attorney duly authorized in
writing.



     No service charge shall be made to any holder for any registration of, transfer or exchange of
Notes, but the Company may require payment by the holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes.



     Neither the Company nor the Trustee nor any Note Registrar shall be required to exchange or
register a transfer of (a) any Notes or portions thereof surrendered for conversion pursuant to
Article 14 or (b) any Notes or portions thereof tendered for redemption (and not withdrawn)
pursuant to Section 3.01.



     (b) The following provisions shall apply only to Global Notes:



          (i) Each Global Note authenticated under this Indenture shall be registered in the name of the
Depositary or a nominee thereof and delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Note shall constitute a single Note for all purposes of this
Indenture.




          (ii) Notwithstanding any other provision in this Indenture, no Global Note may be exchanged in
whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be
registered, in the name of any Person other than the Depositary or a nominee thereof unless (A) the
Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary
for such Global Note and a successor depositary has not been appointed by the Company within ninety
days or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) an Event of
Default has occurred and is continuing or (C) the Company, in its sole discretion, notifies the
Trustee in writing that it no longer wishes to have all the Notes represented by Global Notes.
Any Global Note exchanged pursuant to clause (A) or (B) above shall be so exchanged in whole and
not in part and any Global Note exchanged pursuant to clause (C) above may be exchanged in whole or
from time to time in part as directed by the Company. Any Note issued in exchange for a Global
Note or any portion thereof shall be a Global Note; provided that any such Note so



14









 






issued that is
registered in the name of a Person other than the Depositary or a nominee thereof shall not be a
Global Note.




          (iii) Securities issued in exchange for a Global Note or any portion thereof pursuant to
clause (ii) above shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be
so exchanged, shall be registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear any legends required hereunder. Any Global Note to be
exchanged in whole shall be surrendered by the Depositary to the Trustee, as Note Registrar. With
regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered
for exchange or, if the Trustee is acting as Custodian for the Depositary or its nominee with
respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to
the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Note issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.




          (iv) In the event of the occurrence of any of the events specified in clause (ii) above, the
Company will promptly make available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.




          (v) Neither any members of, or participants in, the Depositary (“Agent Members”) nor any other
Persons on whose behalf Agent Members may act shall have any rights under this Indenture with
respect to any Global Note registered in the name of the Depositary or any nominee thereof, and the
Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the
operation of customary practices of such Persons governing the exercise of the rights of a
holder of any Note.




          (vi) At such time as all interests in a Global Note have been redeemed, converted, canceled or
exchanged for Notes in certificated form, such Global Note shall, upon receipt thereof, be canceled
by the Trustee in




15









 







accordance with standing procedures and instructions existing between the
Depositary and the Custodian. At any time prior to such cancellation, if any interest in a Global
Note is redeemed, converted, canceled or exchanged for Notes in certificated form, the principal
amount of such Global Note shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be appropriately reduced, and an endorsement
shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction.




     (c) Every Note that bears or is required under this Section 2.05(c) to bear the legend set
forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the Notes
and required to bear the legend set forth in Section 2.05(c), collectively, the “Restricted
Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c)
(including those set forth in the legend below) unless such restrictions on transfer shall be
waived by written consent of the Company, and the holder of each such Restricted Security, by such
Note holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used
in Section 2.05(c) and 2.05(d), the term “transfer” encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest therein.



     Until the expiration of the holding period applicable to sales thereof under Rule 144 under
the Securities Act (or any successor provision), any certificate evidencing such Note (and all
securities issued in exchange therefor or substitution thereof, other than Common Stock, if any,
issued upon conversion thereof, which shall bear the legend set forth in this Section 2.05(c), if
applicable) shall bear a legend in substantially the following form, unless such Note has been sold
pursuant to a registration statement that has been declared effective under the Securities Act (and
which continues to be effective at the time of such transfer) or sold pursuant to Rule 144 under
the Securities Act or any similar provision then in force, or unless otherwise agreed by the
Company in writing, with written notice thereof to the Trustee:


THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL
NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR
THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT (A) TO INTERMUNE, INC. OR ANY
SUBSIDIARY


16









 






THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), IT
WILL FURNISH TO THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE BANK OF NEW YORK TRUST
COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF
THIS NOTE UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTION.




     Any Note (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon surrender of such
Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.05(c). If the Restricted Security surrendered for
exchange is represented by a Global Note bearing the legend set forth in this Section 2.05(c), the
principal amount of the legended Global Note shall be reduced by the appropriate principal amount
and the principal amount of a Global Note without



17









 







the legend set forth in this Section 2.05(c)
shall be increased by an equal principal amount. If a Global Note without the legend set forth in
this Section 2.05(c) is not then outstanding, the Company shall execute and the Trustee shall
authenticate and deliver an unlegended Global Note to the Depositary.



     (d) Until the expiration of the holding period applicable to sales thereof under Rule 144
under the Securities Act (or any successor provision), any stock certificate representing Common
Stock issued upon conversion of any Note shall bear a legend in substantially the following form,
unless such Common Stock has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the time of such
transfer) or pursuant to Rule 144 under the Securities Act or any similar provision then in force,
or such Common Stock has been issued upon conversion of Notes that have been transferred pursuant
to a registration statement that has been declared effective under the Securities Act or pursuant
to Rule 144 under the Securities Act or any similar provision then in force, or unless otherwise
agreed by the Company in writing with written notice thereof to the transfer agent:


THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT,
UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE COMMON STOCK EVIDENCED HEREBY
UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), (1) IT WILL NOT RESELL OR
OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO INTERMUNE, INC. OR ANY
SUBSIDIARY THEREOF, (B) TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 1(D) ABOVE), IT WILL FURNISH TO MELLON INVESTOR SERVICES, AS TRANSFER AGENT (OR A
SUCCESSOR TRANSFER
AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED


18









 






HEREBY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY
PURSUANT TO CLAUSE 1(D) ABOVE OR UPON ANY TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).




     Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of the certificates representing such shares
of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of shares of Common
Stock, which shall not bear the restrictive legend required by this
Section 2.05(d).



     (e) Any Note or Common Stock issued upon the conversion of a Note that, prior to the
expiration of the holding period applicable to sales thereof under Rule 144 under the Securities
Act (or any successor provision), is purchased or owned by the Company or any Affiliate thereof may
not be resold by the Company or such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the Securities Act in a transaction
which results in such Notes or Common Stock, as the case may be, no longer being “Restricted
Securities” (as defined under Rule 144).



     (f) The Trustee shall have no responsibility or obligation to any Agent Members or any other
Person with respect to the accuracy of the books or records, or the acts or omissions, of the
Depositary or its nominee or of any participant or member thereof, with respect to any ownership
interest in the Notes or with respect to the delivery to any Agent Member or other Person (other
than the Depositary) of any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Notes. All notices and communications to be given to the
Noteholders and all payments to be made to Noteholders under the Notes shall be given or made only
to or upon the order of the registered Noteholders (which shall be the Depositary or its nominee in
the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised
only through the Depositary subject to the customary procedures of the Depositary. The Trustee may
rely and shall be fully protected in relying upon information furnished by the Depositary with
respect to its Agent Members.



     The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this



19









 







Indenture or under applicable law with respect
to any transfer of any interest in any Note (including any transfers between or among Agent Members
in any Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.



     Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request
the Trustee or an authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case, the applicant for a substituted Note shall furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.



     Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and evidence, as described in the preceding paragraph, the
Trustee or such authenticating agent may authenticate any such substituted Note and make available
for delivery such Note. Upon the issuance of any substituted Note, the Company may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in relation thereto and any other expenses connected therewith. In case any
Note which has matured or is about to mature or has been tendered for redemption upon a Designated
Event (and not withdrawn) or is to be converted into Common Stock shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute Note, pay or authorize
the payment of or convert or authorize the conversion of the same (without surrender thereof except
in the case of a mutilated Note), as the case may be, if the applicant for such payment or
conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating
agent such security or indemnity as may be required by them to save each of them harmless for any
loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, the Trustee and, if
applicable, any paying agent or conversion agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.




20











 





     Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment or
conversion or redemption of mutilated, destroyed, lost or stolen Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment or conversion or redemption of negotiable
instruments or other securities without their surrender.



     Section 2.07.  Temporary Notes. Pending the preparation of Notes in certificated form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
the written request of the Company, authenticate and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially
in the form of the Notes in certificated form, but with such omissions, insertions and variations
as may be appropriate for temporary Notes, all as may be determined by the Company. Every such
temporary Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same manner, and with the
same effect, as the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in certificated form and
thereupon any or all temporary Notes may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and make available for delivery in exchange for such temporary Notes an
equal aggregate principal amount of Notes in certificated form. Such exchange shall be made by the
Company at its own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Notes in certificated form authenticated and delivered hereunder.



     Section 2.08.  Cancellation of Notes. All Notes surrendered for the purpose of payment, redemption, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying agent or any Note
Registrar or any conversion agent, be surrendered to the Trustee and promptly canceled by it, or,
if surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary procedures. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a redemption, or satisfaction
of the



21









 




indebtedness represented by such Notes unless and until the same are delivered to the
Trustee for cancellation.




     Section 2.09.  CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Noteholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.



     Section 2.10.  Additional Notes. The Company may, without the consent of the holders, issue
Additional Notes (the “Additional Notes”) under this Indenture with the same terms and with the
same CUSIP numbers as the Notes offered hereby in an unlimited aggregate principal amount, provided
that such Additional Notes must be part of the same issue as the notes offered hereby for United
States federal income tax purposes.



     Section 2.11.  Ranking. The Notes constitute a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured and unsubordinated
Indebtedness of the Company, including, without limitation, the 0.25% Convertible Notes, and
ranking senior in right of payment to any future Indebtedness of the Company that is expressly made
subordinate to the Notes by the terms of such Indebtedness.



ARTICLE 3

Redemption Of Notes




     Section 3.01.  Redemption At Option of Holders Upon a Designated Event



     (a) If there shall occur a Designated Event at any time prior to maturity of the Notes, then
each Noteholder shall have the right, at such holder’s option, to require the Company to redeem for
cash such holder’s Notes, in whole or any portion thereof that is a multiple of $1,000 principal
amount, on the date (the “Designated Event Redemption Date”) that is thirty (30) days after the
date of the Designated Event Notice (as defined in Section 3.01(b)) of such Designated Event (or,
if such 30th day is not a Business Day, the next succeeding Business Day) at a redemption price
equal to 100% of the principal amount thereof, plus accrued interest, to, but excluding, the
Designated Event Redemption Date (the “Designated Event Redemption Price”). Such redemption
pursuant to this Section 3.01 shall be made at the option of the Noteholder, upon:




     (i) delivery to the Trustee (or other paying agent appointed by the Company) by a
Noteholder of a duly completed form entitled “Option



22









 






to Elect Repayment Upon A Designated
Event” (the “Redemption Notice”) in the form set forth on the reverse of the Note during
the period beginning at any time from the opening of business on the date the Designated
Event Notice is mailed until the close of business on the Designated Event Redemption
Date; and




     (ii) delivery or book-entry transfer of the Note or Notes to the Trustee (or other
paying agent appointed by the Company) at any time after delivery of the Designated Event
Notice (together with all necessary endorsements) at the Corporate Trust Office of the
Trustee (or other paying agent appointed by the Company), such delivery being a condition
to receipt by the holder of the redemption price therefor; provided that such redemption
price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the
Trustee (or other paying agent appointed by the Company) shall conform in all respects to
the description thereof in the related Redemption Notice.



     The Company shall redeem, pursuant to this Section 3.01, a portion of a Note, if the principal
amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that
apply to the redemption of all of a Note also apply to the redemption of such portion of such Note.
Upon presentation of any Note redeemed in part only, the Company shall execute and, upon the
Company’s written direction to the Trustee, the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or Notes, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of the Notes
presented.



     Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or
other paying agent appointed by the Company) the Redemption Notice contemplated by this Section
3.01 shall have the right to withdraw such Redemption Notice at any time prior to the close of
business on the Designated Event Redemption Date by delivery of a written notice of withdrawal to the Trustee (or other
paying agent appointed by the Company) in accordance with Section 3.03.



     The Trustee (or other paying agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Redemption Notice or written notice of withdrawal thereof.



     (b) On or before the tenth day after the occurrence of any Designated Event of which it is
aware, the Company at its written request (which must be received by the Trustee at least five (5)
Business Days prior to the date the Trustee is requested to give notice as described below, unless
the Trustee shall agree in writing to a shorter period), or the Trustee, in the name of and at the
expense of the Company, shall mail or cause to be mailed to all holders of record on the date of
the Designated Event a notice (the “Designated Event Notice”) of the occurrence of such Designated
Event and of the redemption right at the option



23









 




of the holders arising as a result thereof. Such
notice shall be mailed by first class mail. The notice, if mailed in the manner herein provided,
shall be conclusively presumed to have been duly given, whether or not the holder receives such
notice. If the Company shall give such notice, the Company shall also deliver a copy of the
Designated Event Notice to the Trustee at such time as it is mailed to Noteholders. Concurrently
with the mailing of any Designated Event Notice, the Company shall issue a press release announcing
such Designated Event referred to in the Designated Event Notice, the form and content of which
press release shall be determined by the Company in its sole discretion. The failure to issue any
such press release or any defect therein shall not affect the validity of the Designated Event
Notice or any proceedings for the redemption of any Note which any Noteholder may elect to have the
Company redeem as provided in this Section 3.01.




     Each Designated Event Notice, subject to the conditions set forth in Section 3.02(a), shall
specify the circumstances constituting the Designated Event, the Designated Event Redemption Date,
the price at which the Company shall be obligated to redeem Notes, that the holder must exercise
the redemption right on or prior to the close of business on the Designated Event Redemption Date
(the “Designated Event Expiration Time”), that the holder shall have the right to withdraw any
Notes surrendered prior to the Designated Event Expiration Time, a description of the procedure
which a Noteholder must follow to exercise such redemption right and to withdraw any surrendered
Notes, the place or places where the holder is to surrender such holder’s Notes, the amount of
interest accrued on each Note to the Designated Event Redemption Date and the CUSIP number or
numbers of the Notes (if then generally in use).



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ redemption rights or affect the validity of the proceedings for the redemption of the
Notes pursuant to this Section 3.01.



     (c) In the case of a reclassification, change, consolidation, merger, combination, sale or
conveyance to which Section 14.06 applies, in which the Common Stock of the Company is changed or
exchanged as a result into the right to receive stock, securities or other property or assets
(including cash), which includes shares of Common Stock of the Company or shares of common stock of
another Person that are, or upon issuance will be, traded on a United States national securities
exchange or approved for trading on an established automated over-the-counter trading market in the
United States and such shares constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate fair market value of such stock, securities or other property or
assets (including cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture (accompanied by an Opinion of Counsel that such supplemental indenture complies with this



24









 




Indenture and the Trust Indenture Act as in force at the date of execution of such supplemental
indenture) modifying the provisions of this Indenture relating to the right of holders of the Notes
to cause the Company to redeem the Notes following a Designated Event, including without limitation
the applicable provisions of this Section 3.01 and the definitions of Common Stock and Designated
Event, as appropriate, as determined in good faith by the Company (which determination shall be
conclusive and binding), to make such provisions apply to such other Person if different from the
Company and the common stock issued by such Person (in lieu of the Company and the Common Stock of
the Company).




     (d) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules
under the Exchange Act to the extent then applicable in connection with the redemption rights of
the holders of Notes in the event of a Designated Event.



     Section 3.02.  The Company’s Right to Elect Manner of Redemption upon a Designated Event.



     (a) The Securities to be redeemed with respect to any Designated Event Redemption Date
pursuant to Section 3.01(a) may be redeemed at the election of the Company in cash or shares of
Common Stock, or if applicable, a parent corporation’s common stock, or in any combination of cash
and shares of Common Stock or such parent corporation’s common stock, subject to the conditions set
forth in Section 3.02(b). The Company shall designate, in the Designated Event Notice delivered
pursuant to Section 3.01(b), whether the Company will redeem the Notes for cash or shares of Common
Stock, or if applicable, a parent corporation’s common stock, or if a combination thereof, the
percentages of the Designated Event Redemption Price in respect of which it will pay in cash or
shares of Common Stock, or if applicable, a parent corporation’s common stock, provided, however,
that the Company will pay cash for fractional interests in shares of Common Stock, or if applicable, a parent corporation’s common stock.



     For purposes of determining the existence of potential fractional interests, all Securities
subject to redemption by the Company held by a Holder shall be considered together (no matter how
many separate certificates are to be presented). Each Holder whose Notes are redeemed pursuant to
Section 3.01 shall receive the same percentage of cash or shares of Common Stock, or if applicable,
a parent corporation’s common stock, in payment of the Designated Event Redemption Price for such
Notes, except (i) as provided in this (a) with regard to the payment of cash in lieu of fractional
shares of Common Stock and (ii) in the event that the Company is unable to redeem the Notes of a
Holder or Holders for shares of Common Stock because any necessary qualifications or registrations
of the shares of Common Stock under applicable securities laws cannot be obtained, the Company may
redeem the Notes of such Holder or Holders for cash. The Company may not change its election with
respect to the consideration (or components or percentages of components thereof) to be paid once
the Company



25









 




has given its Designated Event Notice to Holders except in the event of a failure to
satisfy, prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the
Designated Event Redemption Date, any condition to the payment of the Designated Event Redemption
Price, in whole or in part, in shares of Common Stock or, if applicable, a parent corporation’s
common stock.




     (b) If the Company elects to pay all or a portion of the Designated Event Redemption Price in
respect of which a Designated Event Notice has been given in Common Stock, or if applicable, a
parent corporation’s common stock, the number of shares of Common Stock, or if applicable, a parent
corporation’s common stock, to be issued shall be equal to (i) the portion of the Designated Event
Redemption Price to be paid in Common Stock, or if applicable, a parent corporation’s common stock,
divided by (ii) the Market Price of one share of Common Stock, or if applicable, a parent
corporation’s common stock, subject to satisfaction of the conditions set forth in the second
succeeding paragraph.



     The Company will not issue any fraction of a share of Common Stock in payment of the
Designated Event Repurchase Price. Instead, the Company will make a cash payment (calculated to the
nearest cent) equal to such fraction multiplied by the Market Price of one share of Common Stock,
or if applicable, a parent corporation’s common stock. If a Holder elects to have more than one
Note purchased, the number of shares of Common Stock shall be based on the aggregate amount of Note
to be purchased.



     The Company’s right to exercise its election to redeem the Notes through the issuance of
shares of Common Stock, or if applicable, a parent corporation’s common stock, shall be conditioned
upon:




     (i) the registration of such shares of Common Stock, or if applicable, a parent
corporation’s common stock, under the Securities Act and the Exchange Act, in each case,
if required;




     (ii) any qualification or registration of such shares of Common Stock, or if
applicable, a parent corporation’s common stock, under applicable state securities laws,
if necessary, or the availability of an exemption from such qualification and
registration;




     (iii) listing of the common stock on a United States national securities exchange or
quotation thereof in an inter-dealer quotation system of any registered United States
national securities association.




     (iv) the receipt by the Trustee of an Officers’ Certificate stating (A): that the
terms of the issuance of the shares of Common Stock, or if applicable, a parent
corporation’s common stock, are in conformity with this Indenture; (B) that the shares of
Common Stock, or if applicable, a parent corporation’s common stock, to be issued in
payment of the Designated Event Redemption Price in respect of Notes have been duly



26









 






authorized and, when issued and delivered pursuant to the terms of this Indenture in
payment of the Designated Event Redemption Price in respect of Notes, will be validly
issued, fully paid, non-assessable and free from preemptive rights; (C) that the
conditions in this clause
 (iv)(A) and (iv)(B) above, the conditions in clauses (i) to
(iii) above and the condition set forth in the second succeeding paragraph regarding
issuance of a press release have been satisfied in all material respects; and (D) the
number of shares of Common Stock, or if applicable, a parent corporation’s common stock,
to be issued for each $1,000 Principal Amount of Notes and the Closing Sale Price of a
share of Common Stock on each Trading Day during the period commencing on the first
Trading Day of the period during which the Market Price is calculated and ending on the
Trading Day immediately preceding the Designated Event Redemption Date; and




     (v) the receipt by the Trustee of an Opinion of Counsel stating that: (A) the shares
of Common Stock, or if applicable, a parent corporation’s common stock, to be issued by
the Company in payment of the Designated Event Redemption Price in respect of the Notes
have been duly authorized, and when issued and delivered pursuant to the terms of this
Indenture in payment of the Designated Event Redemption Price in respect of the Notes,
will be validly issued, fully paid and non-assessable and, to such counsel’s knowledge,
free from preemptive rights; and (B) the condition in clause (i) above has been satisfied
in all material respects.



     If the foregoing conditions are not satisfied with respect to a Holder or Holders prior to
5:00 p.m., New York City time, on the Business Day immediately preceding the Designated Event
Redemption Date, and the Company has elected to redeem the Securities pursuant to this Section 3.02
through the issuance of shares of Common Stock, or if applicable, a parent corporation’s common stock, the
Company shall pay the entire Designated Event Redemption Price of the Notes of such Holder or
Holders in cash. Upon determination of the actual number of shares of Common Stock, or if
applicable, a parent corporation’s common stock, to be issued upon redemption of the Notes, the
Company shall be required to disseminate a press release through a public medium as is customary
for such a press release.



     (c) All shares of Common Stock, or if applicable, a parent corporation’s common stock,
delivered upon redemption of the Notes shall be newly issued shares, shall be duly authorized,
validly issued, fully paid and nonassessable, and shall be free from preemptive rights and free of
any lien or adverse claim.



     (d) If a Holder of a redeemed Note is paid in shares of Common Stock, or if applicable, a
parent corporation’s common stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of Common Stock. However, the Holder shall pay any such tax which is
due because the Holder requests the Common Stock, or if applicable, a parent corporation’s common
stock, to be issued in a name other than the Holder’s name. The Paying



27









 




Agent may refuse to deliver
the certificates representing the shares of Common Stock, or if applicable, a parent corporation’s
common stock, being issued in a name other than the Holder’s name until the Paying Agent receives a
sum sufficient to pay any tax which will be due because the shares of Common Stock, or if
applicable, a parent corporation’s common stock, are to be issued in a name other than the Holder’s
name. Nothing contained herein shall preclude any income tax withholding required by law or
regulations.




     Section 3.03. Effect of Redemption Notice.



     (a) Upon receipt by the Trustee (or other paying agent appointed by the Company) of the
Redemption Notice specified in Section 3.01(a), the holder of the Note in respect of which such
Redemption Notice was given shall (unless such Redemption Notice is validly withdrawn) thereafter
be entitled to receive solely the redemption price with respect to such Note. Such redemption
price shall be paid to such Noteholder, subject to receipt of funds and/or Notes by the Trustee (or
other paying agent appointed by the Company), promptly following the later of (x) the Designated
Event Redemption Date with respect to such Note (provided the holder has satisfied the conditions
in Section 3.01) and (y) the time of delivery of such Note to the Trustee (or other paying agent
appointed by the Company) by the holder thereof in the manner required by Section 3.01. Notes in
respect of which a Redemption Notice has been given by the holder thereof may not be converted
pursuant to Article 14 hereof on or after the date of the delivery of such Redemption Notice unless
such Redemption Notice has first been validly withdrawn.



     (b) A Redemption Notice may be withdrawn by means of a written notice of withdrawal delivered
to the office of the Trustee (or other paying agent appointed by the Company) in accordance with
the Redemption Notice at any time prior to the close of business on the Designated Event Redemption
Date, specifying:




     (i) the certificate number, if any, of the Note in respect of which such notice of
withdrawal is being submitted, or the appropriate Depositary information if the Note in
respect of which such notice of withdrawal is being submitted is represented by a Global
Note,




     (ii) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted, and




     (iii) the principal amount, if any, of such Note which remains subject to the
original Redemption Notice and which has been or will be delivered for redemption by the
Company.



     Section 3.04. Deposit of Redemption Price.



28









 





     (a) Prior to 10:00 a.m. (New York City Time) on the Business Day following the Designated
Event Redemption Date, the Company shall deposit with the Trustee (or other paying agent appointed
by the Company; or, if the Company or a Subsidiary or an Affiliate of either of them is acting as
the paying agent, shall segregate and hold in trust as provided in Section 4.04) an amount of cash
(in immediately available funds if deposited on such Business Day), sufficient to pay the aggregate
redemption price of all the Notes or portions thereof that are to be redeemed as of the Designated
Event Redemption Date.



     (b) If the Trustee or other paying agent appointed by the Company, or the Company or a
Subsidiary or Affiliate of either of them, if such entity is acting as the paying agent, holds cash
sufficient to pay the aggregate redemption price of all the Notes, or portions thereof, that are to
be redeemed as of the Designated Event Redemption Date, on or after the Designated Event Redemption
Date (i) the Notes will cease to be outstanding, (ii) interest on the Notes will cease to accrue,
and (iii) all other rights of the holders of such Notes will terminate, whether or not book-entry
transfer of the Notes has been made or the Notes have been delivered to the Trustee or paying
agent, other than the right to receive the redemption price upon delivery of the Notes.



     Section 3.05.  Repayment to the Company. The Trustee (or other paying agent appointed by the
Company) shall return to the Company any cash that remains unclaimed as provided in Section 12.04.



     Section 3.06.  Redemption Upon Changes In Withholding Taxes. The Notes may be redeemed (the
“Withholding Tax Redemption”), as a whole but not in part, at the election of the Company, upon not
less than 30 nor more than 60 days notice (which notice shall be irrevocable), at a redemption
price equal to the Principal Amount plus accrued and unpaid interest to, but excluding, the
redemption date and Additional Amounts, if any, if the Company, including as a result of a merger
or sale of assets where a parent Person is organized outside of the United States, has become or
will become obligated to pay Additional Amounts, on the next date on which any amount would be
payable with respect to such Notes, and such obligation cannot be avoided by the use of reasonable
measures available to the Company; provided, however, that (a) no such notice of redemption may be
given earlier than 60 days prior to the earliest date on which the Company would be obligated to
pay such Additional Amounts, and (b) at the time such notice of redemption is given, such
obligation to pay such Additional Amounts remains in effect. Prior to the giving of any notice of
redemption described in this paragraph, the Company shall deliver to the Trustee (i) a certificate
of the Company, signed by two directors of the Company, stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking reasonable measures available to it and
(ii) an Opinion of Counsel of recognized standing to the effect that the Company has or will become
obligated to pay Additional Amounts.



29









 





     Notwithstanding the foregoing, if the Company has given notice of a Withholding Tax Redemption
as described in this Section 3.06 each Holder shall have the right to elect that such Holder’s
Notes will not be subject to such Withholding Tax Redemption. If a Holder elects not to be subject
to a Withholding Tax Redemption, the Company will not be required to pay any Additional Amounts as
provided in Section 4.11 below with respect to payments made on such Holder’s Notes following the
date of such Withholding Tax Redemption, and all subsequent payments on such Holder’s Notes will be
subject to any tax required to be withheld or deducted. Holders must elect their option to avoid a
Withholding Tax Redemption by written notice to the Trustee no later than the 15th day prior to the
date of such Withholding Tax Redemption fixed by the Company stating:




	 	(1)	 	the name and address of the registered Holder of the Notes subject to such
election:
	 
	 	(2)	 	the certificate numbers and Principal Amount of such Notes;
	 
	 	(3)	 	that the Holder elects to avoid the Withholding Tax Redemption and that the
Holder will not be entitled to any Additional Amounts with respect to payments made
on such Holder’s Notes following the date of such Withholding Tax Redemption.





ARTICLE 4

Particular Covenants Of The Company




     Section 4.01.  Payment of Principal, Premium and Interest. The Company covenants and agrees
that it will duly and punctually pay or cause to be paid the principal of and premium, if any
(including the redemption price upon redemption pursuant to Article 3), and interest, on each of
the Notes at the places, at the respective times and in the manner provided herein and in the
Notes.



     Section 4.02.  Maintenance of Office or Agency. The Company will maintain an office or
agency in the Borough of Manhattan, The City of New York, where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for conversion or
redemption and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not designated or appointed by
the Trustee. If at any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, or at an office of the
Trustee’s Affiliate located in New York at 101 Barclay Street, Floor 8W, New York, NY 10286,
Attention: Corporate Trust Administration.



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     The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or
agency.



     The Company hereby initially designates the Trustee as paying agent, Note Registrar, Custodian
and conversion agent and the Corporate Trust Office shall be considered as one such office or
agency of the Company for each of the aforesaid purposes.



     So long as the Trustee is the Note Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 7.10(a) and the third paragraph of Section 7.11. If
co-registrars have been appointed in accordance with this Section, the Trustee shall mail such
notices only to the Company and the holders of Notes it can identify from its records.



     Section 4.03.  Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee hereunder.



     Section 4.04.  Provisions as to Paying Agent.



     (a) If the Company shall appoint a paying agent other than the Trustee, or if the Trustee
shall appoint such a paying agent, the Company will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:




     (1) that it will hold all sums held by it as such agent for the payment of the
principal of and premium, if any, or interest on the Notes (whether such sums have been
paid to it by the Company or by any other obligor on the Notes) in trust for the benefit
of the holders of the Notes;




     (2) that it will give the Trustee notice of any failure by the Company (or by any
other obligor on the Notes) to make any payment of the principal of and premium, if any,
or interest on the Notes when the same shall be due and payable; and




     (3) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



     The Company shall, on or before each due date of the principal of, premium, if any, or
interest on the Notes, deposit with the paying agent a sum (in funds which are immediately
available on the due date for such payment)



31









 




sufficient to pay such principal, premium, if any, or
interest, and (unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action; provided that if such deposit is made on the due date,
such deposit shall be received by the paying agent by 10:00 a.m. New York City time, on such date.




     (b) If the Company shall act as its own paying agent, it will, on or before each due date of
the principal of, premium, if any, or interest on the Notes, set aside, segregate and hold in trust
for the benefit of the holders of the Notes a sum sufficient to pay such principal, premium, if
any, or interest so becoming due and will promptly notify the Trustee of any failure to take such
action and of any failure by the Company (or any other obligor under the Notes) to make any payment
of the principal of, premium, if any, or interest on the Notes when the same shall become due and
payable.



     (c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by the Company or any paying agent hereunder as required by this Section
4.04, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by
the Company or any paying agent to the Trustee, the Company or such paying agent shall be released
from all further liability with respect to such sums.



     (d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.



     The Trustee shall not be responsible for the actions of any other paying agents (including the
Company if acting as its own paying agent) and shall have no control of any funds held by such
other paying agents.



     Section 4.05.  Existence. Subject to Article 11, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and rights (charter
and statutory); provided that the Company shall not be required to preserve any such right if the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any material respect to
the Noteholders.



     Section 4.06.  Maintenance of Properties. The Company will cause all properties used or
useful in the conduct of its business or the business of any Significant Subsidiary to be
maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and



32









 




advantageously conducted at all times;
provided that nothing in this Section 4.06 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business or the business of any subsidiary and not
disadvantageous in any material respect to the Noteholders.




     Section 4.07.  Payment of Taxes and Other Claims. The Company will pay or discharge, or
cause to be paid or discharged, before the same may become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon
the income, profits or property of the Company or any Significant Subsidiary, (ii) all claims for
labor, materials and supplies which, if unpaid, might by law become a lien or charge upon the property of the Company or any
Significant Subsidiary and (iii) all stamp taxes and other duties, if any, which may be imposed by
the United States or any political subdivision thereof or therein in connection with the issuance,
transfer, exchange, conversion or redemption of any Notes or with respect to this Indenture;
provided that, in the case of clauses (i) and (ii), the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or claim (A) if the
failure to do so will not, in the aggregate, have a material adverse impact on the Company, or (B)
if the amount, applicability or validity is being contested in good faith by appropriate
proceedings.



     Section 4.08.  Rule 144A Information Requirement. Within the period prior to the expiration
of the holding period applicable to sales thereof under Rule 144 under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall, during any period in which it
is not subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof which continue to be
Restricted Securities in connection with any sale thereof and any prospective purchaser of Notes or
such Common Stock designated by such holder or beneficial holder, the information required pursuant
to Rule 144A(d)(4) under the Securities Act upon the request of any holder or beneficial holder of
the Notes or such Common Stock and it will take such further action as any holder or beneficial
holder of such Notes or such Common Stock may reasonably request, all to the extent required from
time to time to enable such holder or beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption provided by Rule 144A,
as such Rule may be amended from time to time. Upon the request of any holder or any beneficial
holder of the Notes or such Common Stock, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.



     Section 4.09.  Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any



33









 




stay, extension or usury law or other similar law
which would prohibit or forgive the Company from paying all or any portion of the principal of,
premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of this Indenture and
the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.




     Section 4.10.  Compliance Certificate. The Company shall deliver to the Trustee, within one
hundred twenty (120) days after the end of each fiscal year of the Company, an Officers’
Certificate signed by either the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and the status thereof of which the signers may have knowledge.



     The Company will deliver to the Trustee, forthwith upon becoming aware of (i) any default in
the performance or observance of any covenant, agreement or condition contained in this Indenture,
or (ii) any Event of Default, an Officers’ Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is taking or proposes to
take with respect thereto.



     Any notice required to be given under this Section 4.10 shall be delivered to a Responsible
Officer of the Trustee at its Corporate Trust Office.



     The Company shall provide/complete any information/documentation requested by the Trustee in
order to comply with the requirements of the Trust Indenture Act.



     Section 4.11.  Payment Of Additional Amounts. All payments made by the Company under the
Notes will be made free and clear of and without withholding or deduction for or on account of any
present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of any taxing authority (“Taxes”), unless the Company is
required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In
the event that the Company is required to so withhold or deduct any amount for or on account of any
Taxes from any payment made under the Notes, the Company will pay such additional amounts
(“Additional Amounts”) as may be necessary so that the net amount received by each Holder of
Securities (including Additional Amounts) after such withholding or deduction will equal the amount
that such Holder would have received if such Taxes had not



34









 




been required to be withheld or
deducted; provided that no Additional Amounts will be payable with respect to a payment made to a
Holder of Securities to the extent:





     (i) that any such Taxes would not have been so imposed but for the existence of any
present or former connection between such Holder and the Taxing Authority imposing such Taxes (other than the mere receipt of such
payment, acquisition, ownership or disposition of such Notes or the exercise or
enforcement of rights under such Notes or this Indenture);




     (ii) of any estate, inheritance, gift, sales, transfer, or personal property Taxes
imposed with respect to such Notes, except as otherwise provided herein;




     (iii) that any such Taxes would not have been so imposed but for the presentation of
such Notes (where presentation is required) for payment on a date more than 30 days after
the date on which such payment became due and payable or the date on which payment thereof
is duly provided for, whichever is later, except to the extent that the beneficiary or
Holder thereof would have been entitled to Additional Amounts had the Notes been presented
for payment on any date during such 30-day period;




     (iv) that such Holder would not be liable or subject to such withholding or deduction
of Taxes but for the failure to make a valid declaration of non-residence or other similar
claim for exemption, if (x) the making of such declaration or claim is required or imposed
by statute, treaty, regulation, ruling or administrative practice of the relevant Taxing
Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and
(y) at least 60 days prior to the first payment date with respect to which the Company
shall apply this subclause (iv), the Company or the Guarantor shall have notified all
Holders of Securities in writing that they shall be required to provide such declaration
or claim; or




     (v) that such Holder has elected to avoid a Withholding Tax Redemption pursuant to
the last paragraph of Section 3.06 with respect to payments made subsequent to the date of
such Withholding Tax Redemption.



     The Company will also (i) make such withholding or deduction of Taxes and (ii) remit the full
amount of Taxes so deducted or withheld to the relevant Taxing Authority in accordance with all
applicable laws. The Company will use its reasonable best efforts to obtain certified copies of
tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority
imposing such Taxes. The Company, as the case may be, will, upon request, make



35









 




available to the
Holders of the Notes, within 60 days after the date the payment of any Taxes so deducted or
withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Company, notwithstanding the Company’s efforts to obtain such receipts, the same are
not obtainable, other evidence of such payments by the Company.




     In the event that the Company is obligated to pay Additional Amounts with respect to any
payment of principal, interest, redemption price or any other amount payable under or with respect
to the Notes, 30 days prior to the date such payment is due and payable, the Company, will deliver
to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will also be
payable, the amounts so payable and such other information as is necessary to enable the Trustee to
pay such Additional Amounts to the Holders on such payment date.



     The foregoing provisions shall survive any termination or discharge of this Indenture and
shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, as
the case may be, is organized or is engaged in business for tax purposes or any political
subdivisions or taxing authority or agency thereof or therein.



     In addition, the Company will pay any stamp, issue, registration, documentary or other similar
taxes and duties, including interest, penalties and Additional Amounts with respect thereto,
payable in connection with the conversion of redemption of the notes for stock or a combination of
stock and cash that would not have been payable but for the fact that the stock is being issued by
a non-U.S. entity.



     Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of
principal, interest, redemption price or any other amount payable under or with respect to any
Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.



ARTICLE 5

Noteholders’ Lists And Reports By The Company And The Trustee




     Section 5.01.  Noteholders’ Lists. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semiannually, not more than fifteen (15) days after each
March 1 and September 1 in each year beginning with September 1, 2008, and at such other times as
the Trustee may request in writing, within thirty (30) days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and addresses of the holders of Notes as of a date not more than
fifteen (15) days (or such other date as the Trustee may reasonably request in order to so provide
any such notices) prior to



36









 




the time such information is furnished, except that no such list need be
furnished by the Company to the Trustee so long as the Trustee is acting as the sole Note
Registrar.




     Section 5.02. Preservation And Disclosure Of Lists.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in the most recent list
furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note
Registrar or co-registrar in respect of the Notes, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.




     (b) The rights of Noteholders to communicate with other holders of Notes with respect to their
rights under this Indenture or under the Notes, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.




     (c) Every Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of holders of
Notes made pursuant to the Trust Indenture Act.



     Section 5.03. Reports By Trustee.




     (a) Within sixty (60) days after May 15 of each year commencing with the year 2009, the
Trustee shall transmit to holders of Notes such reports dated as of May 15 of the year in which
such reports are made concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant
thereto. In the event that no events have occurred under the applicable sections of the Trust
Indenture Act the Trustee shall be under no duty or obligation to provide such reports.




     (b) A copy of such report shall, at the time of such transmission to holders of Notes, be
filed by the Trustee with each stock exchange and automated quotation system upon which the Notes
are listed or quoted and with the Company. The Company will promptly notify the Trustee in writing
when the Notes are listed on any stock exchange or automated quotation system or delisted
therefrom.



     Section 5.04. Reports by Company. The Company shall file with the Trustee (and the
Commission if at any time after the Indenture becomes qualified



37









 




under the Trust Indenture Act), and
transmit to holders of Notes, such information, documents and other reports and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act, whether or not the Notes are
governed by such Act; provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be made available to
the Trustee within fifteen (15) days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers’ Certificates).




ARTICLE 6

Remedies Of The Trustee And Noteholders On An Event Of Default




     Section 6.01.  Events Of Default. 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 on 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; 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
pursuant to Article 3, by acceleration or otherwise; or



     (c) default in the Company’s obligation to convert any Notes following the exercise by the
Noteholder of the right to convert such Notes into Common Stock pursuant to and in accordance with
Article 14; or



     (d) default in the Company’s obligation to provide a Designated Event Notice on a timely basis
upon a Designated Event of which the Company is aware as provided in Section 3.01; or



     (e) 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



38









 







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



     (f) the Company shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any substantial part of
the property of the Company, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding commenced against the
Company, or shall make a general assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become
due; or



     (g) an involuntary case or other proceeding shall be commenced against the Company seeking
liquidation, reorganization or other relief with respect to the Company or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or



     (h) default in the payment of principal when due at stated maturity or resulting in
acceleration of other Indebtedness of the Company for borrowed money where the aggregate principal
amount with respect to which the default or acceleration has occurred exceeds $25 million and such
acceleration has not been rescinded or annulled within a period of 60 days after written notice of
such failure, requiring the Company to remedy the same, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding determined in accordance with Section 8.04;



then, and in each and every such case (other than an Event of Default specified in Section 6.01(f)
or 6.01(g)), 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), 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 any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 6.01(f) or 6.01(g) occurs, the
principal of all the Notes and the interest accrued 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



39









 







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, to the date of such payment or deposit) and
amounts due to the Trustee pursuant to Section 7.06, 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. The Company shall notify in
writing a Responsible Officer of the Trustee, promptly upon becoming aware thereof, of any 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.



     Section 6.02.  Payments of Notes on Default; Suit Therefor. The Company covenants that (i)
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 thirty (30) days, or (ii) 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, by or under this Indenture,
declaration 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 and 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 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,



40









 




attorneys and counsel, and all other amounts due the Trustee under Section
7.06. Until such demand by the Trustee, the Company may pay the principal of and premium, if any,
and interest on the Notes to the registered holders, whether or not the Notes are overdue.




     In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor on the Notes
wherever situated the monies adjudged or decreed to be payable.



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Notes under Title 11 of the United States Code, or any other
applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
case of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest owing and unpaid in respect of the Notes, and,
in case of any judicial proceedings, to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and of the Noteholders
allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its
or their creditors, or its or their property, and to collect and receive any monies or other
property payable or deliverable on any such claims, and to distribute the same after the deduction
of any amounts due the Trustee under Section 7.06, and to take any other action with respect to
such claims, including participating as a member of any official committee of creditors, as it
reasonably deems necessary or advisable, and, unless prohibited by law or applicable regulations,
and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or
similar official is hereby authorized by each of the Noteholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to the Noteholders, to pay to the Trustee any amount due it for reasonable compensation, expenses,
advances and disbursements, including counsel fees and expenses incurred by it up to the date
of such distribution. To the extent that such payment of reasonable compensation,



41









 




expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the holders of the Notes may
be entitled to receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.




     All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the holders of the Notes.



     In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.



     Section 6.03.  Application of Monies Collected By Trustee. Any monies collected by the
Trustee pursuant to this Article 6 shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes,
and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully
paid:



     FIRST: To the payment of all amounts due the Trustee under Section 7.06;



     SECOND: In case the principal of the outstanding Notes shall not have become due and be
unpaid, to the payment of interest on the Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest have been collected
by the Trustee) upon the overdue installments of interest at the rate borne by the Notes, such
payments to be made ratably to the Persons entitled thereto;



     THIRD: In case the principal of the outstanding Notes shall have become due, by declaration or
otherwise, and be unpaid to the payment of the whole amount then owing and unpaid upon the Notes
for principal and premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Notes, and in case such monies shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Notes, then to the payment of such principal and premium, if any, and interest without
preference or priority of principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest over



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any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest; and




     FOURTH: To the payment of the remainder, if any, to the Company or any other Person lawfully
entitled thereto.



     Section 6.04.  Proceedings by Noteholder. No Noteholder shall have any right by virtue of or
by reference to any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless also the holders of
not less than twenty-five percent (25%) in aggregate principal amount of the Notes 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 to the Trustee such reasonable security or
indemnity as it may require 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; 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
Noteholders shall have any right in any manner whatever by virtue of or by reference to any
provision of this Indenture 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, or to
enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Noteholders (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 of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal of and premium, if any (including the
redemption price upon redemption pursuant to Article 6), and accrued interest on such Note, on or
after the respective due dates expressed in such Note or in the event of redemption, 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 Noteholder.



     Anything in this Indenture or the Notes to the contrary notwithstanding, any Noteholder,
without the consent of either the Trustee or any other Noteholder, in its own behalf and for its
own benefit, may enforce, and may institute and



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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, 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 Section 2.06, all
powers and remedies given by this Article 6 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 Noteholders, 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 Noteholder 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, every power and remedy given
by this Article 6 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, (c) the Trustee may decline to take any action that would benefit
some Noteholder to the detriment of other Noteholders and (d) the Trustee may decline to take any
action that would involve the Trustee in personal liability. 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, current or future breach of any
provision hereof, or default or Event of Default hereunder and its consequences except (i) a
default in the payment of Interest or premium, if any, on, or the principal of, the Notes, (ii) a
failure by the Company to convert any Notes into Common Stock, (iii) a default in the payment of
the redemption price pursuant to Article 3 or (iv) a default in respect of a covenant or provisions
hereof which under Article 10 cannot be modified or



44









 




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 other breach of any provision hereof
or other default or Event of Default or impair any right consequent thereon. Whenever any other
breach of any provision hereof or default or Event of Default hereunder shall have been waived as
permitted by this Section 6.07, said other breach of any provision hereof or 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; but no such waiver shall extend to any subsequent other breach of any provision
hereof or other default or Event of Default or impair any right consequent thereon.




     Section 6.08.  Notice of Defaults. The Trustee shall, within ninety (90) days after a
Responsible Officer of the Trustee has knowledge of the occurrence of a default, mail to all
Noteholders, as the names and addresses of such holders appear upon the Note Register, notice of
all defaults known to a Responsible Officer, unless such defaults shall have been cured or waived
before the giving of such notice; provided 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 Responsible
Officers of the Trustee in good faith determines that the withholding of such notice is in the
interests of the Noteholders.



     Section 6.09.  Undertaking To Pay Costs. All parties to this Indenture agree, and each
Noteholder by his 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 6.09
(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 ten
percent 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 14.




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ARTICLE 7

The Trustee




     Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.



     No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:



     (a) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred:




     (i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trust Indenture Act, and the Trustee shall
not be liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture and the Trust Indenture Act against the Trustee; and




     (ii) in the absence of bad faith and willful misconduct on the part of the Trustee,
the Trustee may conclusively rely as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated
therein);



     (b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining
the pertinent facts;



     (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the written direction of the holders of not less than a
majority in principal amount of the Notes at the time outstanding determined as provided in Section
8.04 relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;



46









 





     (d) whether or not therein 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;



     (e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any paying agent or any records maintained by any co-registrar with respect to the
Notes;



     (f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred; and



     (g) the Trustee shall not be deemed to have knowledge of any Default or Event of Default
hereunder unless it shall have received a written notice of such Default or Event of Default by the
Company or the holders of at least 10% in aggregate principal amount of the Notes.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.



     Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in 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, Note,
note, coupon or other paper or document (whether in its original or facsimile form) 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, direction, order or demand 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) the Trustee may consult with counsel of its own selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;



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     (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Noteholders pursuant to the
provisions of this Indenture, unless such Noteholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;



     (e) 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, Note or other paper or document, but the Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by reason of such inquiry
or investigation;



     (f) 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;



     (g) the Trustee shall not be liable for any action taken, suffered or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;



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



     (i) the Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;



     (j) any permissive right or authority granted to the Trustee shall not be construed as a
mandatory duty;



     (k) in no event shall the Trustee be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;



48









 





     (l) 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; 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; and



     (m) the Trustee agrees to accept and act upon facsimile and electronic transmission of written
instructions and/or directions pursuant to this Indenture given by the Company, provided, however
that: (i) the Company, subsequent to such facsimile or electronic transmission of written
instructions and/or directions, shall provide the originally executed instructions and/or
directions to the Trustee in a timely manner and (ii) such originally executed instructions and/or
directions shall be signed by an authorized officer of the Company.



     Section 7.03. No Responsibility For Recitals, Etc. The recitals 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 the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes
or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.



     Section 7.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. The
Trustee, any paying agent, any conversion agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not Trustee, paying agent, conversion agent or Note Registrar.



     Section 7.05. Monies to Be Held in Trust. Subject to the provisions of Section 12.04, all monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which they were received.
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 may be agreed in writing from time to time by the Company and the
Trustee.



     Section 7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all
services rendered by it hereunder in any capacity (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) as mutually agreed to from time
to time in writing between the Company and the Trustee, and the Company will pay



49









 







or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to indemnify the Trustee and any
predecessor Trustee (and any officer, director or employee of the Trustee), in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them 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 bad faith on the part of the Trustee or
such officers, directors, employees and agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves against any claim
(whether asserted by the Company, any holder or any other Person) or liability in connection with
enforcing the provisions of the Section 7.06, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith. The obligations of the Company
under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall be secured by a lien prior to that of the Notes upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Notes. The obligation of the Company under this Section 7.06
shall survive the satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.



     When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 6.01(f) or (g) with respect to the Company occurs,
the expenses and the compensation for
the services are intended to constitute expenses of administration under any bankruptcy,
insolvency or similar laws.



     Section 7.07. Officers’ Certificate As Evidence. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith or willful misconduct on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers’ Certificate delivered to the
Trustee.



     Section 7.08. Conflicting Interests of Trustee. 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, the Trust Indenture Act and this Indenture.



50









 





     Section 7.09. Eligibility of Trustee. 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 (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital and surplus of at
least $50,000,000). If such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of any 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.



     Section 7.10. Resignation or Removal of Trustee.



     (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and to the holders of Notes. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment sixty (60) days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may, upon ten (10) Business
Days’ notice to the Company and the Noteholders, appoint a successor identified in such notice
or may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor trustee, or, if any Noteholder who has been a bona fide holder of a Note
or Notes for at least six (6) months may, subject to the provisions of Section 6.09, on behalf of
himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.



     (b) In case at any time any of the following shall occur:




     (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 or Notes for
at least six (6) months; or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
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 any
public officer shall take charge or



51









 







control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;


then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.09, any Noteholder who has been a bona fide holder of a Note
or Notes for at least six (6) months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee; provided that if no successor Trustee shall have been appointed and have
accepted appointment sixty (60) days after either the Company or the Noteholders has removed the
Trustee, or the Trustee resigns, the Trustee so removed may petition, at the expense of the
Company, any court of competent jurisdiction for an appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.




     (c) The holders of a majority in aggregate principal amount of the Notes at the time
outstanding may at any time remove the Trustee and nominate a successor trustee which shall be
deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of
such nomination, the Company objects thereto, in which case the Trustee so removed or any
Noteholder, or if such Trustee so removed or any Noteholder fails to act, the Company, upon the
terms and conditions and otherwise as in Section 7.10(a)
provided, may petition any court of competent jurisdiction for an appointment of a successor
trustee.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.11.



     (e) Notwithstanding the replacement of the Trustee pursuant to this Section 7.10, the
Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.



     Section 7.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally named as trustee
herein; but, nevertheless, on the written request of the Company or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of
Section 7.06, execute and deliver



52









 







an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as
such, except for funds held in trust for the benefit of holders of particular Notes, to secure any
amounts then due it pursuant to the provisions of Section 7.06.



     No successor trustee shall accept appointment as provided in this Section 7.11 unless, at the
time of such acceptance, such successor trustee shall be qualified under the provisions of Section
7.08 and be eligible under the provisions of Section 7.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the
Company (or the former trustee, at the written direction of the Company) shall mail or cause to be
mailed notice of the succession of such trustee hereunder to the holders of Notes at their
addresses as they shall appear on the Note Register. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.



     Section 7.12. Succession By Merger. Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including any trust created by this Indenture), shall be
the successor to the Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that in the case of any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Notes in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Notes or in this Indenture; provided
that the right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.



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     Section 7.13. Preferential Collection of Claims. If and when the Trustee shall be or become
a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of the claims against the
Company (or any such other obligor).



ARTICLE 8

The Noteholders




     Section 8.01. Action By Noteholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 9,
or (c) by a combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking of any action by
the holders of the Notes, the Company or the Trustee may fix in advance of such solicitation, a
date as the record date for determining holders entitled to take such action. The record date
shall be not more than fifteen (15) days prior to the date of commencement of solicitation of such
action.



     Section 8.02. Proof of Execution by Noteholders. Subject to the provisions of Sections
7.01, 7.02 and 9.05, proof of the execution of any instrument by a Noteholder or its agent or proxy
shall be sufficient if made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding
of Notes shall be proved by the registry of such Notes or by a certificate of the Note Registrar.



     The record of any Noteholders’ meeting shall be proved in the manner provided in Section 9.06.



     Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any paying agent,
any conversion agent and any Note Registrar may deem the Person in whose name such Note shall be
registered upon the Note Register to be, and may treat it as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and interest on such Note,
for conversion of such Note and



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for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any conversion agent nor any Note Registrar shall be affected by any notice to
the contrary. All such payments so made to any holder for the time being, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.



     Section 8.04. Company-owned Notes Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Notes which a Responsible Officer actually knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.04 if the
pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such
Notes and that the pledgee is not the Company, any other obligor on the Notes or any Affiliate of
the Company or any such other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing
and identifying all Notes, if any, known by the Company to be owned or held by or for the account
of any of the above described Persons, and, subject to Section 7.01, the Trustee shall be entitled
to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of
the fact that all Notes not listed therein are outstanding for the purpose of any such
determination.



     Section 8.05. Revocation Of Consents, Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note which is shown by the evidence to be
included in the Notes the holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon such holder and upon
all future holders and owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon such Note or any Note
issued in exchange or substitution therefor.



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ARTICLE 9

Meetings Of Noteholders




     Section 9.01. Purpose Of Meetings. A meeting of Noteholders may be called at any time and
from time to time pursuant to the provisions of this Article 9 for any of the following purposes:




     (1) to give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any default or
Event of Default hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article 6;




     (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions
of Article 7;




     (3) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 10.02; or




     (4) to take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law.



     Section 9.02. Call Of Meetings By Trustee. The Trustee may at any time call a meeting of
Noteholders to take any action specified in Section 9.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting
and the establishment of any record date pursuant to Section 8.01, shall be mailed to holders of
Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety
(90) days prior to the date fixed for the meeting.



     Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.



     Section 9.03. Call Of Meetings By Company Or Noteholders. In case at any time the Company,
pursuant to a resolution of its Board of Directors, or the holders of at least ten percent (10%) in
aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call
a meeting of Noteholders, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then



56









 







the Company or such Noteholders may determine
the time and the place for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.



     Section 9.04. Qualifications For Voting. To be entitled to vote at any meeting of
Noteholders a person shall (a) be a holder of one or more Notes on the record date pertaining to
such meeting or (b) be a person appointed by an instrument in writing as proxy by a holder of one
or more Notes on the record date pertaining to such meeting. The only persons who shall be
entitled to be present or to speak at any meeting of Noteholders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.



     Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Noteholders, in regard to proof
of the holding of Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it
shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Noteholders as provided in Section
9.03, in which case the Company or the Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 8.04, at any meeting each Noteholder or proxyholder shall
be entitled to one vote for each $1,000 principal amount of Notes held or represented by him;
provided that no vote shall be cast or counted at any meeting in respect of any Note challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Notes held by him or instruments in
writing as aforesaid duly designating him as the proxy to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be
adjourned from time to time by the holders of a majority of the aggregate principal amount of Notes
represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.



     Section 9.06. Voting. The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballot on which shall be subscribed the signatures of the holders of Notes or
of their representatives by proxy and the outstanding principal amount of the Notes held or
represented by them. The



57









 







permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall
be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The record shall show the
principal amount of the Notes voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 9.07. No Delay Of Rights By Meeting. Nothing contained in this Article 9 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or
any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders
under any of the provisions of this Indenture or of the Notes.



ARTICLE 10

Supplemental Indentures




     Section 10.01. Supplemental Indentures Without Consent of Noteholders. The Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may, from time to time,
and at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:



     (a) make provision with respect to the conversion rights of the holders of Notes pursuant to
the requirements of Section 14.06 and the redemption obligations of the Company pursuant to the
requirements of Section 3.01(c);



     (b) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes,
any property or assets;



     (c) to evidence the succession of another Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company pursuant to Article 11;



     (d) to add to the covenants of the Company such further covenants, restrictions or conditions
as the Board of Directors and the Trustee shall consider



58









 







to be for the benefit of the holders of
Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace after default (which period may
be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default;



     (e) to provide for the issuance under this Indenture of Notes in coupon form (including Notes
registrable as to principal only) and to provide for exchangeability of such Notes with the Notes
issued hereunder in fully registered form and to make all appropriate changes for such purpose;



     (f) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture that may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to change, eliminate or add any new provisions in
regard to matters or questions arising under this Indenture that shall not materially and adversely
affect the interests of the holders of the Notes;



     (g) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Notes; or



     (h) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be
necessary to effect the qualifications of this Indenture under the Trust Indenture Act, or under
any similar federal statute hereafter enacted.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture, the Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.02.



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     Section 10.02. Supplemental Indenture With Consent Of Noteholders. With the consent
(evidenced as provided in Article 8) of the holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding, the Company, when authorized by the resolutions of the
Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or of modifying in any manner the rights of the
holders of the Notes; provided that no such supplemental indenture shall, without the consent of
the holder of each Note so affected, (i) extend the fixed maturity of any Note, (ii) reduce the
rate or extend the time of payment of interest thereon, (iii) reduce the principal amount thereof
or premium, if any, thereon, or reduce any amount payable on redemption thereof, (iv) impair the
right of any Noteholder to institute suit for the payment thereof, (v) make the principal thereof
or interest or premium, if any, thereon payable in any coin or currency other than that provided in
the Notes, (vi) change the obligation of the Company to redeem any Note upon the happening of a
Designated Event in a manner adverse to the Noteholders, (vii) impair the right to convert the
Notes or reduce the number of shares of Common Stock or the amount of any other property receivable
upon conversion, subject to the terms set forth herein, including Section 14.06, in each case,
(viii) modify any of the provisions of this Section 10.02 or Section 6.07, except to increase any
such percentage or to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder of each Note so affected, (ix) change any obligation of
the Company to maintain an office or agency in the places and for the purposes set forth in Section
4.02, (x) reduce the quorum or voting requirements set forth in Article 9 or (xi) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to any such
supplemental indenture.



     Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.



     It shall not be necessary for the consent of the Noteholders under this Section 10.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.



     Section 10.03. Effect Of Supplemental Indenture. Any supplemental indenture executed
pursuant to the provisions of this Article 10 shall comply with



60









 







the Trust Indenture Act, as then in
effect, provided that this Section 10.03 shall not require such supplemental 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 or the Indenture has been qualified under
the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to
such supplemental 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 or the Indenture has been qualified under the
Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the provisions
of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of Notes shall thereafter be determined,
exercised and enforced hereunder, subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.



     Section 10.04. Notation On Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company’s expense, be prepared and executed by the Company,
authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 15.10) and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.



     Section 10.05. Evidence Of Compliance Of Supplemental Indenture To Be Furnished To Trustee.
Prior to entering into any supplemental indenture, the Trustee shall be provided with 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 10 and is otherwise
authorized or permitted by this Indenture.



ARTICLE 11

Consolidation, Merger, Sale, Conveyance And Lease




     Section 11.01. Company May Consolidate On Certain Terms. Subject to the provisions of
Section 11.02, the Company shall not consolidate or merge with or into any other Person or Persons
(whether or not affiliated with the Company), nor shall the Company or its successor or successors
be a party or parties to successive consolidations or mergers, nor shall the Company sell, convey,
transfer or lease the property and assets of the Company substantially as an entirety, to



61









 







any other
Person (whether or not
affiliated with the Company), unless: (i) the Company is the surviving Person, or the
resulting, surviving or transferee Person is organized and existing under the laws of the United
States of America, any state thereof, the District of Columbia or any other country; (ii) upon any
such consolidation, merger, sale, conveyance, transfer or lease, the due and punctual payment of
the principal of and premium, if any, and interest on all of the Notes, according to their tenor
and the due and punctual performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other
than the Company) formed by such consolidation, or into which the Company shall have been merged,
or by the Person that shall have acquired or leased such property and by any Person whose shares of
stock or other securities or assets shall be delivered to the holders of Notes upon conversion, and
such supplemental indenture shall provide for the applicable conversion rights set forth in Section
14.06; and (iii) immediately after giving effect to the transaction described above, 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. In case of any such consolidation, merger,
sale, conveyance, transfer or lease and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and premium, if any, and interest on
all of the Notes and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such successor Person shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein as the party of
this first part. Such successor Person thereupon may cause to be signed, and may issue either in
its own name or in the name of InterMune, Inc. any or all of the Notes, issuable hereunder that
theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or
cause to be authenticated and delivered, any Notes that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Notes that such
successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose.
All the Notes so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Notes had been issued at the date of the execution hereof. In the
event of any such consolidation, merger, sale, conveyance, transfer or lease, upon compliance with
the provisions of this Article 11, the Person named as the “Company” in the first paragraph of this
Indenture or any successor that shall thereafter have become such in the manner prescribed in this
Article 11 may be
dissolved, wound up and liquidated at any time thereafter and such Person shall be released
from its



62









 







liabilities as obligor and maker of the Notes and from its obligations under this
Indenture.



     In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes
in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as
may be appropriate.



     Section 11.03. Opinion Of Counsel To Be Given To Trustee. The Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease and any such assumption complies with the provisions of
this Article 11.



ARTICLE 12

Satisfaction And Discharge Of Indenture




     Section 12.01. Discharge Of Indenture. When the Company shall deliver 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 all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and payable, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay 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 and premium, if any, and
interest due, and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (1)
rights hereunder of Noteholders to receive payments of principal of and premium, if any, and
interest on, the Notes and the other rights, duties and obligations of Noteholders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (2) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee, on written demand of
the Company accompanied by an Officers’ Certificate and an Opinion of Counsel as required by
Section 15.05 and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company, however, hereby agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee 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



63









 







agent (including the Company if acting as its own 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 and
interest and premium, if any.



     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,
any monies deposited with or paid to the Trustee for payment of the principal of, 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, 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 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 13

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 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 of any successor corporation,



64









 







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; 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 14

Conversion Of Notes




     Section 14.01. Right To Convert.



     (a) Subject to and upon compliance with the provisions of this Indenture, at any time prior to
the close of business on March 1, 2015, the holder of any Note shall have the right, at such
holder’s option, to convert the principal amount of the Note, or any portion of such principal
amount which is a multiple of $1,000, into fully paid and non-assessable shares of Common Stock (as
such shares shall then be constituted) at the Conversion Rate in effect at such time, by surrender
of the Note so to be converted in whole or in part, together with any required funds, in the manner
provided in Section 14.02.



     (b) A Note in respect of which a holder is electing to exercise its option to require
redemption upon a Designated Event pursuant to Section 3.01 may be converted only if such holder
withdraws its Redemption Notice in accordance with Section 3.03. A holder of Notes is not entitled
to any rights of a holder of Common Stock until such holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted to Common Stock under
this Article 14.



     Section 14.02. Exercise Of Conversion Privilege; Issuance Of Common Stock On Conversion; No
Adjustment For Interest Or Dividends.



     (a) In order to exercise the conversion privilege with respect to any Note in certificated
form, the Company must receive at the office or agency of the Company maintained for that purpose
or, at the option of such holder, the Corporate Trust Office, such Note with the original or
facsimile of the form entitled “Conversion Notice” on the reverse thereof, duly completed and
manually signed, together with such Notes duly endorsed for transfer, accompanied by the funds, if
any, required by Section 14.02(c). Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes,
if required pursuant to Section 14.07.



     In order to exercise the conversion privilege with respect to any interest in a Global Note,
the beneficial holder must complete, or cause to be completed, the appropriate instruction form for
conversion pursuant to the Depositary’s book-



65









 







entry conversion program, deliver, or cause to be
delivered, by book-entry delivery an interest in such Global Note, furnish appropriate endorsements
and transfer documents if required by the Company or the Trustee or conversion agent, and pay the
funds, if any, required by Section 14.02(c) and any transfer taxes if required pursuant to Section
14.07.



     (b) As promptly as practicable after satisfaction of the requirements for conversion set forth
above but in no event later than five (5) Trading Days thereof (the “Share Delivery Date”), subject
to compliance with any restrictions on transfer if shares issuable on conversion are to be issued
in a name other than that of the Noteholder (as if such transfer were a transfer of the Note or
Notes (or portion thereof) so converted), the Company shall issue and shall deliver to such
Noteholder at the office or agency maintained by the Company for such purpose pursuant to Section
4.02, a certificate or certificates for the number of full shares of Common Stock issuable upon the
conversion of such Note or portion thereof as determined by the Company in accordance with the
provisions of this Article 14 and a check or cash in respect of any fractional interest in respect
of a share of Common Stock arising upon such conversion, calculated by the Company as provided in
Section 14.03. In case any Note of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Section 2.03, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Note so surrendered, without charge to him, a new
Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Note.



     For the avoidance of doubt, any conversion hereunder effected after such time as Reference
Property, pursuant to Section 14.06, is required to be delivered to the holders of Notes in lieu of
shares of Common Stock, shall be made in accordance with the terms and conditions of this Section
14.02, including, without limitation, the timely delivery of such Reference Property by the
applicable Share Delivery Date.



     Each conversion shall be deemed to have been effected as to any such Note (or portion thereof)
on the date on which the requirements set forth above in this Section 14.02 have been satisfied as
to such Note (or portion thereof) (such date of satisfaction, the “Conversion Date”), and the
Person in whose name any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become on said date the holder of record of the shares
represented thereby; provided that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date
upon which such Note shall be surrendered.



     (c) Any Note or portion thereof surrendered for conversion during the period from the close of
business on the record date for any interest payment date



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to the close of business on the Business
Day preceding the following interest payment date shall be accompanied by payment, in immediately
available funds or other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being converted; provided
that no such payment need be made (1) in connection with a Conversion Notice if the Company has
specified a redemption date following a Designated Event that is during such period, (2) in
connection with a Conversion Notice delivered during the Make-Whole Conversion Period, (3) in
connection with a Conversion Notice delivered after the record date immediately preceding March 1,
2015, or (4) to the extent of any overdue interest at the time of conversion with respect to such
Note; and provided further that, in the case of any Conversion Notice delivered after an interest
payment date and prior to the next record date occurring during the Make-Whole Conversion Period,
the Company shall pay to the holder on or prior to the Share Delivery Date in cash, any accrued and
unpaid interest on the Note or any portion thereof surrendered for such conversion. Except as
provided above in this Section 14.02, no payment or other adjustment shall be made for interest
accrued on any Note converted or for dividends on any shares issued upon the conversion of such
Note as provided in this Article 14.



     Upon the conversion of a Note, that portion of the accrued but unpaid interest, with respect
to the converted Note shall not be cancelled, extinguished or forfeited, but rather shall be deemed
to be paid in full to the holder thereof through delivery of the 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; and the fair market value of such shares of Common Stock
(together with any such cash payment in lieu of fractional shares) shall be treated as issued, to
the extent thereof, first in exchange for and in satisfaction of our obligation to pay the
principal amount of the converted Note, the accrued but unpaid interest, and the balance, if any,
of such fair market value of such Common Stock (and any such cash payment) shall be treated as
issued in
exchange for and in satisfaction of the right to convert the Note being converted pursuant to
the provisions hereof.



     (d) Upon the conversion of an interest in a Global Note, the Trustee (or other conversion
agent appointed by the Company), or the Custodian at the direction of the Trustee (or other
conversion agent appointed by the Company), shall make a notation on such Global Note as to the
reduction in the principal amount represented thereby. The Company shall notify the Trustee in
writing of any conversions of Notes effected through any conversion agent other than the Trustee.



     Section 14.03. Cash Payments in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip certificates representing fractional shares shall be issued upon conversion of
Notes. If more than one Note shall be surrendered for conversion at one time by the same holder,
the number of full



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shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted
hereby) so surrendered. If any fractional share of stock would be issuable upon the conversion of
any Note or Notes, the Company shall make an adjustment and payment therefor in cash at the current
price thereof to the holder of Notes. The current price of a share of Common Stock shall be the
Closing Sale Price on the last Trading Day immediately preceding the day on which the Notes (or
specified portions thereof) are deemed to have been converted.



     Section 14.04. Conversion Rate. Each $1,000 principal amount of the Notes shall be
convertible into 52.9661 shares of Common Stock (herein called the “Conversion Rate”), subject to
adjustment as provided in this Article 14.



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




     (i) the numerator of which shall be the sum of the number of shares of Common Stock
outstanding at the close of business on the date fixed for the determination of
stockholders entitled to receive such
dividend or other distribution plus the total number of shares of Common Stock
constituting such dividend or other distribution; and




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


such increase to become effective immediately after the opening of business on the day following
the date fixed for such determination. For the purpose of this clause (a), the number of shares of
Common Stock at any time outstanding shall not include shares held in the treasury of the Company.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company. If any dividend or distribution of the type described in this Section
14.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the
Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.




     (b) In case the Company shall issue rights or warrants to all holders of its outstanding
shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the
date fixed for determination of stockholders



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entitled to receive such rights or warrants) to
subscribe for or purchase shares of Common Stock at a price per share less than the Current Market
Price on the date fixed for determination of stockholders entitled to receive such rights or
warrants, the Conversion Rate shall be increased so that the same shall equal the rate determined
by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination
of stockholders entitled to receive such rights or warrants by a fraction,




     (i) the numerator of which shall be the number of shares of Common Stock outstanding
on the date fixed for determination of stockholders entitled to receive such rights or
warrants plus the total number of additional shares of Common Stock offered for
subscription or purchase, and




     (ii) the denominator of which shall be the sum of the number of shares of Common
Stock outstanding at the close of business on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number of shares that
the aggregate offering price of the total number of shares so offered would purchase at
such Current Market Price.



     Such adjustment shall be successively made whenever any such rights or warrants are issued,
and shall become effective immediately after the opening of business on the day following the date
fixed for determination of stockholders entitled to receive such rights or warrants. To the extent
that shares of Common Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually delivered. If such rights
or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such date fixed for the determination of stockholders entitled
to receive such rights or warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such shares of Common
Stock, there shall be taken into account any consideration received by the Company for such rights
or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.



     (c) In case outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes



69









 







effective shall be proportionately reduced,
such increase or reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or combination becomes
effective.



     (d) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock shares of any class of capital stock of the Company or evidences of its indebtedness
or assets (including securities, but excluding any rights or warrants referred to in 

Section
14.05(b), and excluding any dividend or distribution (x) paid exclusively in cash or (y) referred
to in Section 14.05(a) (any of the foregoing hereinafter in this Section 14.05(d)) called the
“Securities”)), then, in each such case, the Conversion Rate shall be increased so that the same
shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Record
Date with respect to such distribution by a fraction,




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




     (ii) the denominator of which shall be the Current Market Price on such Record Date
less the Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of Directors) on the
Record Date of the portion of the Securities so distributed applicable to one share of
Common Stock,


such adjustment to become effective immediately prior to the opening of business on the day
following such Record Date; provided that if the then fair market value
(as so determined) of the portion of the Securities so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the
right to receive upon conversion the amount of Securities such holder would have received had such
holder converted each Note on the 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 Section 14.05(d) by
reference to the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the Current Market Price
on the applicable Record Date.




     If the dividend or distribution requiring an adjustment pursuant to this clause (d) consists
of capital stock of any class or series, or similar equity interests, of or relating to a
Subsidiary or other business unit of the Company, for purposes of making such adjustment, (i) the
Current Market Price shall be determined as of the date (the “Ex-Dividend Date”) on which
“ex-dividend trading” commences for such distribution on the Nasdaq Stock Market or such



70









 







other
national or regional exchange or market on which such securities are then listed or quoted, based
on the average of the Closing Sale Prices of the Common Stock for the ten (10) Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date and (ii) the Fair
Market Value of such dividend or distribution shall equal the number of securities distributed in
respect of each share of Common Stock multiplied by the average of the Closing Sale Prices of those
securities distributed for the ten (10) Trading Days commencing on and including the fifth Trading
Day after the Ex-Dividend Date.



     Rights or warrants distributed by the Company to all holders of Common Stock entitling the
holders thereof to subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.05 (and
no adjustment to the Conversion Rate under this Section 14.05 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 Section 14.05(d). 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
14.05 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 Section 14.05(d) and Section 14.05(a) and (b), any dividend or
distribution to which this Section 14.05(d) is applicable that also



71









 







includes shares of Common
Stock, or such rights or warrants to subscribe for or purchase shares of Common Stock of the type
described in Section 14.05(b) (or both), shall be deemed instead to be (1) a dividend or
distribution of the evidences of indebtedness, assets or shares of capital stock other than such
shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this
Section 14.05(d) with respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment required by Sections 14.05(a) and 14.05(b)
with respect to such dividend or distribution shall then be made), except (A) the Record Date of
such dividend or distribution shall be substituted as “the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution”, “the date fixed for the
determination of stockholders entitled to receive such rights or warrants” and “the date fixed for
such determination” within the meaning of Section 14.05(a) and 14.05(b) and (B) any shares of
Common Stock included in such dividend or distribution shall not be deemed “outstanding at the
close of business on the date fixed for such determination” within the meaning of Section 14.05(a).



     (e) In case the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash, then, in such case, the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to
the close of business on such Record Date by a fraction,




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




     (ii) the denominator of which shall be the Current Market Price on such Record Date
less the amount of cash so distributed (and not excluded as provided above) applicable to
one share of Common Stock,


such adjustment to be effective immediately prior to the opening of business on the day following
the record date; provided that if the portion of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of
the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the
right to receive upon conversion the amount of cash such holder would have received had such holder
converted each Note on the 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 any adjustment is required to be made
as set forth in this Section 14.05(e) as a result of a distribution that is a quarterly dividend,
such adjustment shall be based upon the amount by which such distribution exceeds the amount of the
quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to
be made as set forth in


72









 






this Section 14.05(e) above as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of the distribution.




     (f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders of consideration per share of Common
Stock having a Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the Board of Directors) that as of the last
time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock on the
Trading Day next succeeding the Expiration Time, the Conversion Rate shall be increased so that the
same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior
to the Expiration Time by a fraction,




     (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined
as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Expiration Time, and




     (ii) the denominator of which shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied
by the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding
the Expiration Time,


such adjustment to become effective immediately prior to the opening of business on the day
following the Expiration Time. 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
any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or exchange offer had not
been made.




     (g) For purposes of this Section 14.05, the following terms shall have the meaning indicated:




     (i) “Current Market Price” shall mean the average of the daily Closing Sale Prices
per share of Common Stock for the ten consecutive Trading Days ending on the earlier of
such date of determination and the day before the “ex” date with respect to the



73









 







issuance,
distribution, subdivision or combination requiring such computation immediately prior to
the date in question. For purpose of this clause (i), the term “ex” date, (1) when used
with respect to any issuance or distribution, means the first date on which the Common
Stock trades, regular way, on the relevant exchange or in the relevant market from which
the Closing Sale Price was obtained without the right to receive such issuance or
distribution, and (2) when used with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades, regular way, on
such exchange or in such market after the time at which such subdivision or combination
becomes effective.




     If another issuance, distribution, subdivision or combination to which Section 14.05
applies occurs during the period applicable for calculating “Current Market Price”
pursuant to the definition in the preceding paragraph, “Current Market Price” shall be
calculated for such period in a manner determined by the Board of Directors to reflect the
impact of such issuance, distribution, subdivision or combination on the Closing Sale
Price of the Common Stock during such period.




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




     (iii) “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).




     (iv) “Trading Day” shall mean (x) if the applicable security is quoted on the Nasdaq
Stock Market, a day on which trades may be made thereon or (y) if the applicable security
is listed or admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or another national
securities exchange is open for business or (z) if the applicable security is not so
listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or obligated by law
or executive order to close.



     (h) The Company may make such increases in the Conversion Rate, in addition to those required
by Section 14.05(a), (b), (c), (d), (e) or (f) as the Board of Directors considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock
resulting from



74









 







any dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for income tax purposes.



     To the extent permitted by applicable law, the Company from time to time may increase the
Conversion Rate by any amount for any period of time if the period is at least twenty (20) days,
the increase is irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence,
the Company shall mail to holders of record of the Notes a notice of the increase at least fifteen
(15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.



     (i) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in such rate; provided that any
adjustments that by reason of this Section 14.05(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations under this Article
14 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 need be made for rights to
purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for
any issuance of Common Stock or convertible or exchangeable securities or rights to purchase Common
Stock or convertible or exchangeable securities. To the extent the Notes become convertible into
cash, assets, property or securities (other than capital stock of the Company), no adjustment need
be made thereafter as to the cash, assets, property
or such securities. Interest will not accrue on any cash into which the Notes are
convertible.



     (j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any conversion agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Rate to the holder of each Note at his last address appearing on the
Note Register provided for in Section 2.05 of this Indenture, within twenty (20) days after
execution thereof. Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.





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     (k) In any case in which this Section 14.05 provides that an adjustment shall become effective
immediately after (1) a Record Date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section 14.05(a), (3) a
date fixed for the determination of stockholders entitled to receive rights or warrants pursuant to
Section 14.05(b) or (4) the Expiration Time for any tender or exchange offer pursuant to Section
14.05(f) (each a “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 Determination Date and before the occurrence of such Adjustment Event, the
additional shares of Common Stock or other securities issuable upon such conversion by reason of
the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (y) paying to such holder any amount in cash
in lieu of any fraction pursuant to Section 14.03. For purposes of this Section 14.05(k), 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) or clause (5) hereof, the date a sale or
exchange of Common Stock pursuant to such tender or exchange offer is consummated and
becomes irrevocable.



     (l) For purposes of this Section 14.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.



     Section 14.06. Effect Of Reclassification, Consolidation, Merger or Sale. If any of the following events
occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other
than a subdivision or combination to which Section 14.05(c) applies), (ii) any consolidation,
merger or combination of the Company with another Person as a result of which holders of Common
Stock shall be entitled to receive stock, other securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, or (iii) any sale or conveyance of all
or substantially all of the properties and assets of the Company to any other Person as a result of
which holders of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including



76









 







cash) with respect to or in exchange for such Common Stock, then the
Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) providing that each Note shall be convertible into the
kind and amount of shares of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon conversion of such Notes
(assuming, for such purposes, a sufficient number of authorized shares of Common Stock are
available to convert all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election shall not have been
exercised (“non-electing share”), then for the purposes of this Section 14.06 the kind and amount
of stock, other securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares) (the “Reference Property”). 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 14. If, in the case of any such consolidation, merger, combination,
sale or conveyance, the stock or other securities or other property or assets (including cash)
receivable thereupon by a holder of Common Stock include shares of stock or other securities or
other property or assets (including cash) of a Person other than the successor or purchasing
Person, as the case may be, in such consolidation, merger, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other person 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.



     In the event the Company shall execute a supplemental indenture pursuant to this Section
14.06, the Company shall promptly file with the Trustee (x) an Officers’ Certificate briefly
stating the reasons therefor, the kind or amount of stock, other securities or other property or
assets (including cash) receivable by Holders of the Notes upon the conversion of their Notes after
any such reclassification, change, combination, consolidation, merger, sale or conveyance, any
adjustment to be made with respect thereto and that all conditions precedent have been complied
with and (y) an Opinion of Counsel that all conditions precedent have been complied with, and shall
promptly mail notice thereof to all holders of Notes. The Company shall cause notice of the
execution of such supplemental indenture to be mailed to each holder of Notes, at its address
appearing on the Note Register provided for in Section 2.05 of this Indenture,



77









 







within twenty (20)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.



     Throughout this Article 14, if Common Stock has been replaced by Reference Property as a
result of any reclassification, change, combination, consolidation, merger, sale or conveyance,
references to Common Stock shall be changed to Reference Property.



     The above provisions of this Section 14.06 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and conveyances.



     If this Section 14.06 applies to any event or occurrence, Section 14.05 shall not apply.



     Section 14.07. Taxes On Shares Issued. The issue of stock certificates on conversions of Notes shall be
made without charge to the converting Noteholder for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof. 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
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 stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax has been paid.



     Section 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. From time to time as additional shares of Common Stock become available, the Company
shall reserve additional shares of Common Stock out of its authorized but unissued shares or shares
held in treasury until the Company has reserved a sufficient number of shares of Common Stock to
deliver 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, 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



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by the Company and free from all taxes,
liens and charges with respect to the issue 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
Nasdaq Stock 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; 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 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 14. 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



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to be made with
respect thereto, but, subject to the provisions of Section 7.01, may accept as conclusive evidence
of the correctness of any such provisions, and shall be protected in relying upon, the 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 or substantially 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 2.05 of this Indenture, as
promptly as reasonably 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, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.




     Section 14.11. Stockholder Rights Plans. If the rights provided for in the Company’s Rights Agreement
dated July 17, 2001, as amended, or in any future rights plan adopted by the Company have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder
rights



80









 







agreement so that the holders of the Notes would not be entitled to receive any rights in
respect of Common Stock issuable upon conversion of the Notes, the Conversion Rate will be adjusted
as provided in Section 14.05(d).



     Section 14.12. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection With A
Fundamental Change and A Withholding Tax Redemption.



     (a) Notwithstanding anything herein to the contrary, the Conversion Rate applicable to each
Note that is surrendered for conversion, in accordance with this Article 14, at any time during the
period (the “Make-Whole Conversion Period”) that begins on, and includes, (1) the date that is
thirty (30) calendar days prior to the date originally announced by the Company as the anticipated
effective date of a Fundamental Change (which anticipated effective
date the Company shall disclose, in good faith, in the written notice, public announcement and
publication referred to in Section 14.12(e)) or (2) the date the Company’s notice of a Withholding
Tax Redemption delivered pursuant to Section 3.06, and ends on, and includes, the date that is
thirty (30) Business Days after the actual effective date of such Fundamental Change or the date
that immediately precedes the date of the Withholding Tax Redemption specified in such notice shall
be increased to an amount equal to the Conversion Rate that would, but for this Section 14.12,
otherwise apply to such Note pursuant to this Article 14, plus an amount equal to the Make-Whole
Applicable Increase; provided, however, that such increase to the Conversion Rate shall not apply
if such Fundamental Change or Withholding Tax Redemption is announced by the Company but shall not
be consummated.



     The additional consideration payable hereunder on account of any Make-Whole Applicable
Increase with respect to a Note surrendered for conversion is herein referred to as the “Make-Whole
Consideration.”



     (b) As used herein, “Make-Whole Applicable Increase” shall mean, with respect to a Fundamental
Change or Withholding Tax Redemption, the amount, set forth in the following table, which
corresponds to the effective date of such Fundamental Change or Withholding Tax Redemption (the
“Effective Date”) and the Applicable Price of such Fundamental Change or Withholding Tax
Redemption:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Price
	Effective Date
	 	$	15.26	 	 	$	16.00	 	 	$	17.00	 	 	$	18.00	 	 	$	20.00	 	 	$	22.50	 	 	$	25.00	 	 	$	27.50	 	 	$	30.00	 	 	$	32.50	 	 	$	35.00	 	 	$	37.50	 	 	$	40.00	 	 	$	45.00	 	 	$	50.00	 
	 
	June 9, 2008
	 	 	12.70	 	 	 	12.70	 	 	 	11.73	 	 	 	10.36	 	 	 	8.13	 	 	 	6.06	 	 	 	4.53	 	 	 	3.38	 	 	 	2.51	 	 	 	1.84	 	 	 	1.32	 	 	 	0.93	 	 	 	0.62	 	 	 	0.22	 	 	 	0.00	 
	March 1, 2009
	 	 	12.70	 	 	 	12.70	 	 	 	12.01	 	 	 	10.60	 	 	 	8.30	 	 	 	6.17	 	 	 	4.60	 	 	 	3.43	 	 	 	2.54	 	 	 	1.85	 	 	 	1.33	 	 	 	0.92	 	 	 	0.61	 	 	 	0.20	 	 	 	0.00	 
	March 1, 2010
	 	 	12.70	 	 	 	12.70	 	 	 	12.38	 	 	 	10.89	 	 	 	8.49	 	 	 	6.28	 	 	 	4.66	 	 	 	3.45	 	 	 	2.54	 	 	 	1.85	 	 	 	1.32	 	 	 	0.91	 	 	 	0.60	 	 	 	0.19	 	 	 	0.00	 
	March 1, 2011
	 	 	12.70	 	 	 	12.70	 	 	 	12.64	 	 	 	11.07	 	 	 	8.56	 	 	 	6.26	 	 	 	4.60	 	 	 	3.37	 	 	 	2.46	 	 	 	1.77	 	 	 	1.24	 	 	 	0.84	 	 	 	0.54	 	 	 	0.16	 	 	 	0.00	 
	March 1, 2012
	 	 	12.70	 	 	 	12.70	 	 	 	12.67	 	 	 	11.01	 	 	 	8.38	 	 	 	6.02	 	 	 	4.33	 	 	 	3.11	 	 	 	2.22	 	 	 	1.55	 	 	 	1.06	 	 	 	0.69	 	 	 	0.41	 	 	 	0.09	 	 	 	0.00	 
	March 1, 2013
	 	 	12.70	 	 	 	12.70	 	 	 	12.21	 	 	 	10.46	 	 	 	7.72	 	 	 	5.31	 	 	 	3.66	 	 	 	2.51	 	 	 	1.69	 	 	 	1.11	 	 	 	0.69	 	 	 	0.40	 	 	 	0.19	 	 	 	0.00	 	 	 	0.00	 
	March 1, 2014
	 	 	12.70	 	 	 	12.70	 	 	 	10.57	 	 	 	8.69	 	 	 	5.87	 	 	 	3.57	 	 	 	2.14	 	 	 	1.24	 	 	 	0.68	 	 	 	0.33	 	 	 	0.12	 	 	 	0.02	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 
	March 1, 2015
	 	 	12.70	 	 	 	9.67	 	 	 	6.00	 	 	 	2.73	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 






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provided, however, that:





     (i) if the actual Applicable Price of such Fundamental Change or Withholding Tax
Redemption is between two (2) prices listed in the table above under the column titled
“Applicable Price,” or if the actual Effective Date of such Fundamental Change or
Withholding Tax Redemption is between two dates listed in the table above in the row
immediately below the title “Effective Date,” then the Make-Whole Applicable Increase for
such Fundamental Change or Withholding Tax Redemption shall be determined by linear
interpolation between the Make-Whole Applicable Increases set forth for such two prices,
or for such two dates based on a three hundred and sixty five (365) day year, as
applicable;




     (ii) if the actual Applicable Price of such Fundamental Change or Withholding Tax
Redemption is greater than $50.00 per share (subject to adjustment as provided in Section
14.12(b)(iii)), or if the actual Applicable Price of such Fundamental Change or
Withholding Tax Redemption is less than $15.26 per share (subject to adjustment as
provided in Section 14.12(b)(iii)),), then the Make-Whole Applicable Increase shall be
equal to zero (0);




     (iii) if an event occurs that requires, pursuant to this Article 14 (other than
solely pursuant to this Section 14.12), an adjustment to the Conversion Rate, then, on the
date and at the time such adjustment is so required to be made, (A) each price set forth
in the table above under the column titled “Applicable Price” shall be deemed to be
adjusted so that such price, at and after such time, shall be equal to the product of
(1) such price as in effect immediately before such adjustment to such price and (2) a
fraction whose numerator is the Conversion Rate in effect immediately before such
adjustment to the Conversion Rate and whose denominator is the Conversion Rate to be in
effect, in accordance with this Article 14, immediately after such adjustment to the
Conversion Rate; and (B) each Make-Whole Applicable Increase amount set forth in the table
above shall be deemed to be adjusted so that such Make-Whole Applicable Increase, at and
after such time, shall be equal to the product of (1) such Make-Whole Applicable Increase
as in effect immediately before such adjustment to such Make-Whole Applicable Increase and
(2) a fraction whose numerator is the Conversion Rate to be in effect, in accordance with
this Article 14, immediately after such adjustment to the Conversion Rate and whose
denominator is the Conversion Rate in effect immediately before such adjustment to the
Conversion Rate; and




     (iv) in no event shall the Conversion Rate applicable to any Note be increased
pursuant to this Section 14.12 be increased to the extent that the Conversion Rate
applicable to such Note will result in the Company issuing more shares of Common Stock
than it has available for



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issuance under its Certificate of Incorporation, as may be
adjusted pursuant to Section 14.05(a).



     (c) As used herein, “Applicable Price” shall have the following meaning with respect to a
Fundamental Change: (A) the consideration (excluding cash payments for fractional shares or
pursuant to statutory appraisal rights) for the Common Stock in such Fundamental Change consists
solely of cash, then the “Applicable Price” with respect to such Fundamental Change shall be equal
to the cash amount paid per share of Common Stock in such Fundamental Change; (B) the consideration
paid for the property and assets of the Company or the Subsidiaries consists solely of cash, then
the “Applicable Price” with respect to such Fundamental Change shall be equal to the cash amount
paid for the property and assets of the Company, expressed as an amount per share of Common Stock
outstanding on the Effective Date of such Fundamental Change; and (C) in all other
circumstances, the “Applicable Price” with respect to such Fundamental Change shall be equal to the
average of the Closing Sale Prices per share of Common Stock for the five (5) consecutive Trading
Days immediately preceding the Effective Date of such Fundamental Change, which average shall be
appropriately adjusted by the Board of Directors, in its good faith determination (which
determination shall be described in a Board Resolution), to account for any adjustment, pursuant
hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event occurs, at any time
during such five (5) consecutive Trading Days. As used herein, “Applicable Price” shall have the
following meaning with respect to a Withholding Tax Redemption: the arithmetic average of the
Closing Sale Prices of the Company’s Common Stock for each of the five (5) consecutive Trading Days
ending on the Trading Day immediately preceding the applicable Conversion Date.



     (d) The Make-Whole Consideration due upon a conversion of a Note by a Holder shall be paid as
soon as practicable after the Conversion Date of such conversion, but in no event later than the
third (3rd) Business Day after the later of (1) the date such Holder surrenders such Note for such
conversion; and (2) in the case of a Fundamental Change, the applicable Effective Date. The
consideration in which the Make-Whole Consideration is payable shall be determined in accordance
herewith, including, without limitation, in accordance with Section 14.02 and, to the extent
applicable, Section 14.06.



     (e) At least thirty (30) calendar days before the anticipated effective date of each proposed
Fundamental Change or upon the date of the Withholding Tax Redemption notice to be delivered
pursuant to Error! Reference source not found., the Company shall mail to each Holder, in
accordance with Section 14.02, written notice of, and shall publicly announce, through a reputable
national newswire service, and publish on the Company’s website, the anticipated effective date of
such proposed Fundamental Change or Withholding Tax Redemption, as the case may be. Each such
notice, announcement and



83









 







publication shall also state that, in connection with such Fundamental
Change or Withholding Tax Redemption, the Company shall increase, in accordance herewith, the
Conversion Rate applicable to Notes entitled as provided herein to such increase (along with a
description of how such increase shall be calculated and the time periods during which Notes must
be surrendered in order to be entitled to such increase). No later than the third Business Day
after the Effective Date of each Fundamental Change, the Company shall mail to Holders, in
accordance with Section 14.02, written notice of, and shall publicly announce, through a reputable
national newswire service, and publish on the Company’s website, such Effective Date and the
Make-Whole Applicable Increase applicable to such Fundamental Change.



     (f) For avoidance of doubt, the provisions of this Section 14.12 shall not affect or diminish
the Company’s obligations, if any, with respect to a Fundamental Change or Withholding Tax
Redemption.



     (g) Nothing in this Section 14.12 shall prevent an adjustment to the Conversion Rate pursuant
to Section 14.05 in respect of a Fundamental Change.



     (h) For the avoidance of doubt, neither the Trustee nor the Conversion Agent shall be
responsible for monitoring the Make-Whole Conversion Period, nor for determining the Make-Whole
Applicable Increase or the Applicable Price.



ARTICLE 15

Miscellaneous Provisions




     Section 15.01. 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 15.02. 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 15.03. 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 or sent by telecopier transmission addressed as follows: to InterMune, Inc., 3280 Bayshore
Boulevard, Brisbane, California 94005, Telecopier No. 415-508-0006, Attention: Chief Financial
Officer. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been



84









 







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 or sent by telecopier
transmission addressed as follows: The Bank of New York Trust Company, N.A., 700 South Flower
Street, Suite 500, Los Angeles, CA 90017, Telecopier No. 213-630-6298, Attention: Corporate Trust
Trustee Administration.



     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 15.04. Governing Law. 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 regard to conflicts of laws principles thereof.



     Section 15.05. 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, except in connection with the initial issuance of the Notes, 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 15.06. Legal Holidays. In any case in which the date of maturity of interest on or principal of
the Notes or the redemption date of any Note will not



85









 







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, and no interest shall accrue for the period from and after such
date.



     Section 15.07. 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 15.07 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 the 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 15.08. 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 15.09. 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, 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 15.10. 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 15.11. 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 and 3.01, as fully to all intents and purposes as though the
authenticating agent had been expressly authorized by this



86









 







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 of 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 15.11, 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 15.11, 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 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 7.02, 7.03, 7.04 and 8.03 and this Section 15.11 shall be
applicable to any authenticating agent.



     Section 15.12. Execution In Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.



     Section 15.13. Severability. In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, then (to the extent permitted



87









 







by law) the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.



     The Trustee hereby accepts the trusts in this Indenture declared and provided, upon the terms
and conditions herein above set forth.



88









 





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



	 	 	 	 	 
	 	INTERMUNE, INC.

 	 
	 	By:  	/s/ John C. Hodgman
 	 
	 	 	Name:  	John C. Hodgman 	 
	 	 	Title:  	Senior Vice President and

Chief Financial Officer 	 
	 
	 	The Bank of New York Trust Company,
N.A., 
  as Trustee

 	 
	 	By:  	/s/ Teresa Petta
 	 
	 	 	Name:  	Teresa Petta 	 
	 	 	Title:  	Vice President 	 




89









 





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.




A-1









 








INTERMUNE, INC.




5.00% CONVERTIBLE SENIOR NOTE DUE 2015




CUSIP: 45884XAD5




			
	 	 	 
	No. ___
	 	$                    






     Intermune, Inc., 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 March 1, 2015 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
March 1 and September 1 of each year, commencing September 1, 2008, on said principal sum, in like
coin or currency, at the rate per annum of 5.00%, from the March 1 or September 1, 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 June 24, 2008, until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after any February 15 or August
15, as the case may be, and before the following March 1 or September 1, this Note shall bear
interest from such March 1 or September 1; provided that if the Company shall default in the
payment of interest due on such March 1 or September 1, then this Note shall bear interest from the
next preceding March 1 or September 1 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 June 24, 2008. Except as
otherwise provided in the Indenture, the interest payable on this Note pursuant to the Indenture on
any March 1 or September 1 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 February 15 or August 15
(whether or not a Business Day) next preceding such March 1 or September 1, as provided in the
Indenture; provided that any such interest not punctually paid or duly provided for shall be
payable as provided in Section 6.01 of the Indenture. Interest on the Notes shall be computed on
the basis of a 360-day year of twelve 30-day months.



     The Company shall pay interest (i) on any Notes in certificated form by check mailed to the
address of the Person entitled thereto as it appears in the Note Register (or, upon written notice
by such Person, by wire transfer in immediately available funds, if such Person is entitled to
interest on aggregate principal in excess of $2.0 million) or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee.



A-2









 





     The Company promises to pay interest on overdue principal, premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) interest at the rate of 1%, 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 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 regard to conflicts of laws principles thereof.



     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.



A-3









 






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



	 	 	 	 	 
	 	INTERMUNE, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	Daniel G. Welch 	 
	 	 	Title:  	Chief Executive Officer and President 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	John Hodgman 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 



A-4









 





	 	 	 	 	 



TRUSTEE’S CERTIFICATE OF AUTHENTICATION



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




Dated:



The Bank of New York Trust Company, N.A., as Trustee




By:                                                             

      Authorized Signatory




A-5









 





FORM OF REVERSE OF NOTE




INTERMUNE, INC.




5.00% CONVERTIBLE SENIOR NOTE DUE 2015





     This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.00%
Convertible Senior Notes Due 2015 (herein called the “Notes”), limited in aggregate principal
amount to $___,000,000, issued under and pursuant to an Indenture dated as of 

June 24, 2008 (herein
called the “Indenture”), between the Company and The Bank of New York Trust Company, 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.



     The Notes are issuable in fully registered form, without coupons, in denominations of $1,000
principal amount and any multiple of $1,000. 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 Notes are not subject to redemption through the operation of any sinking fund and may not
be redeemed at the option of the Company prior to maturity.



     If a Designated Event occurs at any time prior to maturity of the Notes, this Note will be
redeemable at the option of the holder of this Note at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to (but excluding) the redemption date, as
provided in Article 3 of the Indenture.



     At the Company’s option (subject to the conditions set forth in the Indenture), pursuant to
the provisions of Section 3.02 of the Indenture, the Company may, upon the occurrence of a
Designated Event, pay the redemption price in the Company’s Common Stock (or that of the Company’s
parent, if applicable) or a combination of cash and the applicable common stock.



     Subject to compliance with the provisions of the Indenture, prior to the close of business on
the final maturity date of the Notes, the holder hereof has the right, at its option, to convert
each $1,000 principal amount of this Note into 52.9661 shares (the “Conversion Rate”) of the
Company’s Common Stock, as such shares shall be constituted at the date of conversion and subject
to adjustment from time to time as provided in the Indenture.



A-6









 





     No adjustment in respect of interest on any Note converted or dividends on any shares issued
upon conversion of such Note will be made upon any conversion except as set forth in the next
sentence. If this Note (or portion hereof) is surrendered for conversion during the period from
the close of business on any record date for the payment of interest to the close of business on
the Business Day preceding the following interest payment date, this Note (or portion hereof being
converted) must be accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the interest otherwise payable on such interest payment date
on the principal amount being converted; provided that no such payment need be made (1) in
connection with a Conversion Notice if the Company has specified a redemption date following a
Designated Event that is during such period, (2) in connection with a Conversion Notice delivered
during the Make-Whole Conversion Period, (3) in connection with a Conversion Notice
delivered after the record date immediately
preceding 
March 1, 2015, or (4) to the extent of any
overdue interest at the time of conversion with respect to this Note; and provided further that, in
the case of any Conversion Notice delivered after an interest payment date and prior to the next
record date occurring during the Make-Whole Conversion Period, the Company shall pay to the holder
on or prior to the Share Delivery Date in cash, any accrued and unpaid interest on the Note or any
portion thereof surrendered for such conversion.



     No fractional shares will be issued upon any conversion, but an adjustment and payment in cash
will be made, as provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for conversion.



     A Note in respect of which a holder is exercising its right to require redemption upon a
Designated Event may be converted only if such holder withdraws its Redemption Notice in accordance
with the terms of the Indenture.



     In case an Event of Default shall have occurred and be continuing, the principal of, 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, subject to the exceptions set forth in
Section 10.02 of the Indenture. 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,



A-7









 







current or future breach of any provision of the Indenture, default or Event of Default, in
each case subject to the exceptions set forth in the Indenture. 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 or of the Indenture 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.



     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.



A-8









 





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.



A-9









 





CONVERSION NOTICE





			
	TO:	 	INTERMUNE, INC.

THE BANK OF NEW YORK TRUST COMPANY, 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 shares of Common Stock of Intermune, Inc. in accordance with the terms of the Indenture
referred to in this Note, and directs that the shares issuable and deliverable upon such
conversion, together with any check 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:                                                             
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	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 REDEMPTION

UPON A DESIGNATED EVENT





			
	TO:	 	INTERMUNE, INC.

THE BANK OF NEW YORK TRUST COMPANY, N.A.





     The undersigned registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from InterMune, Inc. (the “Company”) as to the occurrence of a Designated Event with respect
to the Company and requests and instructs the Company to redeem 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 of the Indenture 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 Redemption 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 redeemed (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.



     In connection with any transfer of the Note prior to the expiration of the holding period
applicable to sales thereof under Rule 144 under the Securities Act (or any successor provision)
(other than any transfer pursuant to a registration statement that has been declared effective
under the Securities Act), the undersigned confirms that such Note is being transferred:




	 	o	 	To InterMune, Inc. or a subsidiary thereof; or
	 
	 	o	 	To a “qualified institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
	 
	 	o	 	Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as
amended; or
	 
	 	o	 	Pursuant to a Registration Statement which has been declared effective under the
Securities Act of 1933, as amended, and which continues to be effective at the
time of transfer;




and unless the Note has been transferred to Intermune, Inc. or a subsidiary thereof, the
undersigned confirms that such Note is not being transferred to an “affiliate” of the Company as
defined in Rule 144 under the Securities Act of 1933, as amended.




     Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder thereof.



	 	 	 	 	 
	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 Redemption Upon a Designated
Event, 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




INTERMUNE, INC.

5.00% Convertible Senior Note Due 2015




No. 1




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