exv4w1







Exhibit 4.1




 








VISHAY INTERTECHNOLOGY, INC.




AND



WILMINGTON TRUST COMPANY,



as Trustee



INDENTURE



Dated as of November 9, 2010



2.25% Convertible Senior Debentures due 2040



 









 









 








TABLE OF CONTENTS




 






	 	 	 	 	 
	 	 	Page
	ARTICLE 1

	Definitions

	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. References to Interest
	 	 	13	 
	 
	 	 	 	 
	ARTICLE 2

	Issue, Description, Execution, Registration and Exchange of Debentures

	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	13	 
	Section 2.02. Form of Debentures
	 	 	13	 
	Section 2.03. Date and Denomination of Debentures; Payments of Interest
	 	 	14	 
	Section 2.04. Execution, Authentication and Delivery of Debentures
	 	 	15	 
	Section 2.05. Exchange and Registration of Transfer of Debentures; Restrictions
on Transfer; Depositary
	 	 	15	 
	Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures
	 	 	21	 
	Section 2.07. Temporary Debentures
	 	 	22	 
	Section 2.08. Cancellation of Debentures Paid, Converted, Etc
	 	 	22	 
	Section 2.09. CUSIP Numbers
	 	 	22	 
	Section 2.10. Additional Debentures; Repurchases
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3

	Satisfaction and Discharge

	 
	 	 	 	 
	Section 3.01. Satisfaction and Discharge 
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 4

	Particular Covenants of the Company

	 
	 	 	 	 
	Section 4.01. Payment of Principal and Interest
	 	 	24	 
	Section 4.02. Maintenance of Office or Agency
	 	 	24	 
	Section 4.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	24	 
	Section 4.04. Provisions as to Paying Agent
	 	 	24	 
	Section 4.05. Existence
	 	 	26	 
	Section 4.06. Rule 144A Information Requirement and Annual Reports
	 	 	26	 
	Section 4.07. Stay, Extension and Usury Laws
	 	 	27	 
	Section 4.08. Compliance Certificate; Statements as to Defaults
	 	 	28	 
	Section 4.09. Further Instruments and Acts
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 5

	Lists of Holders and Reports by the Company and the Trustee

	 
	 	 	 	 
	Section 5.01. Lists of Holders
	 	 	28	 






i









 






	 	 	 	 	 
	 	 	Page
	Section 5.02. Preservation and Disclosure of Lists
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6

	Defaults and Remedies

	 
	 	 	 	 
	Section 6.01. Events of Default
	 	 	29	 
	Section 6.02. Acceleration; Rescission and Annulment
	 	 	30	 
	Section 6.03. Additional Interest
	 	 	31	 
	Section 6.04. Payments of Debentures on Default; Suit Therefor
	 	 	31	 
	Section 6.05. Application of Monies Collected by Trustee
	 	 	33	 
	Section 6.06. Proceedings by Holders
	 	 	33	 
	Section 6.07. Proceedings by Trustee
	 	 	34	 
	Section 6.08. Remedies Cumulative and Continuing
	 	 	35	 
	Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders
	 	 	35	 
	Section 6.10. Notice of Defaults
	 	 	35	 
	Section 6.11. Undertaking to Pay Costs
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 7

	Concerning the Trustee

	 
	 	 	 	 
	Section 7.01. Duties and Responsibilities of Trustee
	 	 	36	 
	Section 7.02. Reliance on Documents, Opinions, Etc
	 	 	38	 
	Section 7.03. No Responsibility for Recitals, Etc
	 	 	39	 
	Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation
Agent or Debenture Registrar May Own Debentures
	 	 	39	 
	Section 7.05. Monies and Shares of Common Stock to Be Held in Trust
	 	 	39	 
	Section 7.06. Compensation and Expenses of Trustee
	 	 	39	 
	Section 7.07. Officers’ Certificate as Evidence
	 	 	40	 
	Section 7.08. Eligibility of Trustee
	 	 	40	 
	Section 7.09. Resignation or Removal of Trustee
	 	 	41	 
	Section 7.10. Acceptance by Successor Trustee
	 	 	42	 
	Section 7.11. Succession by Merger, Etc
	 	 	42	 
	Section 7.12. Trustee’s Application for Instructions from the Company
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 8

	Concerning the Holders

	 
	 	 	 	 
	Section 8.01. Action by Holders
	 	 	43	 
	Section 8.02. Proof of Execution by Holders
	 	 	43	 
	Section 8.03. Who Are Deemed Absolute Owners
	 	 	44	 
	Section 8.04. Company-Owned Debentures Disregarded
	 	 	44	 
	Section 8.05. Revocation of Consents; Future Holders Bound
	 	 	44	 
	 
	 	 	 	 
	ARTICLE 9

	Holders’ Meetings

	 
	 	 	 	 
	Section 9.01. Purpose of Meetings
	 	 	45	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 9.02. Call of Meetings by Trustee
	 	 	45	 
	Section 9.03. Call of Meetings by Company or Holders
	 	 	46	 
	Section 9.04. Qualifications for Voting
	 	 	46	 
	Section 9.05. Regulations
	 	 	46	 
	Section 9.06. Voting
	 	 	46	 
	Section 9.07. No Delay of Rights by Meeting
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 10

	Supplemental Indentures

	 
	 	 	 	 
	Section 10.01. Supplemental Indentures Without Consent of Holders
	 	 	47	 
	Section 10.02. Supplemental Indentures with Consent of Holders
	 	 	48	 
	Section 10.03. Effect of Supplemental Indentures
	 	 	49	 
	Section 10.04. Notation on Debentures
	 	 	49	 
	Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 11

	Consolidation, Merger, Sale, Conveyance and Lease

	 
	 	 	 	 
	Section 11.01. Company May Consolidate, Etc. on Certain Terms
	 	 	50	 
	Section 11.02. Successor Corporation to Be Substituted
	 	 	50	 
	Section 11.03. Opinion of Counsel to Be Given to Trustee
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 12

	Immunity of Incorporators, Stockholders, Officers and Directors

	 
	 	 	 	 
	Section 12.01. Indenture and Debentures Solely Corporate Obligations
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 13

	Contingent Interest
	 
	 	 	 	 
	Section 13.01. Contingent Interest.
	 	 	51	 
	Section 13.02. Trustee’s Responsibilities in Respect of Contingent Interest
	 	 	53	 
	Section 13.03. Payment of Contingent Interest
	 	 	53	 
	Section 13.04. Tax Treatment of the Securities
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 14

	Conversion of Debentures

	 
	 	 	 	 
	Section 14.01. Conversion Privilege
	 	 	53	 
	Section 14.02. Conversion Procedure; Settlement Upon Conversion.
	 	 	56	 
	Section 14.03. Increased Conversion Rate Applicable to Certain Debentures Surrendered in Connection with

	 	 	 	 
	Make-Whole Fundamental Changes.
	 	 	60	 
	Section 14.04. Adjustment of Conversion Rate
	 	 	62	 
	Section 14.05. Adjustments of Prices
	 	 	70	 
	Section 14.06. Shares to Be Fully Paid
	 	 	70	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the
Common Stock
	 	 	70	 
	Section 14.08. Certain Covenants
	 	 	72	 
	Section 14.09. Responsibility of Trustee
	 	 	72	 
	Section 14.10. Notice to Holders Prior to Certain Actions
	 	 	73	 
	Section 14.11. Stockholder Rights Plans
	 	 	74	 
	Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion
	 	 	74	 
	Section 14.13. Exchange in lieu of conversion
	 	 	74	 
	 
	 	 	 	 
	ARTICLE 15

	Repurchase of Debentures at Option of Holders upon a Fundamental Change

	 
	 	 	 	 
	Section 15.01. Repurchase at Option of Holders Upon a Fundamental Change
	 	 	75	 
	Section 15.02. Withdrawal of Fundamental Change Repurchase Notice
	 	 	78	 
	Section 15.03. Deposit of Fundamental Change Repurchase Price
	 	 	78	 
	Section 15.04. Covenant to Comply with Applicable Laws Upon Repurchase of Debentures
	 	 	79	 
	Section 15.05. Payment of Fundamental Change Repurchase Price in shares of Common Stock or
Acquiror Securities
	 	 	79	 
	Section 15.06. Purchase by Third Party
	 	 	80	 
	 
	 	 	 	 
	ARTICLE 16

	Optional Redemption and Tax Triggering Event Redemption

	 
	 	 	 	 
	Section 16.01. Optional Redemption and Tax Triggering Event Redemption
	 	 	80	 
	Section 16.02. Notice of Redemption; Selection of Debentures
	 	 	81	 
	Section 16.03. Payment of Debentures Called for Redemption
	 	 	82	 
	Section 16.04. Restrictions on Redemption
	 	 	83	 
	Section 16.05. No Registration Obligation on Redemption
	 	 	83	 
	 
	 	 	 	 
	ARTICLE 17

	Miscellaneous Provisions

	 
	 	 	 	 
	Section 17.01. Provisions Binding on Company’s Successors
	 	 	83	 
	Section 17.02. Official Acts by Successor Corporation
	 	 	83	 
	Section 17.03. Addresses for Notices, Etc
	 	 	83	 
	Section 17.04. Governing Law
	 	 	84	 
	Section 17.05. Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee
	 	 	84	 
	Section 17.06. Legal Holidays
	 	 	84	 
	Section 17.07. No Security Interest Created
	 	 	85	 
	Section 17.08. Benefits of Indenture
	 	 	85	 
	Section 17.09. Table of Contents, Headings, Etc
	 	 	85	 
	Section 17.10. Authenticating Agent
	 	 	85	 
	Section 17.11. Execution in Counterparts
	 	 	86	 
	Section 17.12. Severability
	 	 	86	 
	Section 17.13. Waiver of Jury Trial
	 	 	86	 
	Section 17.14. Force Majeure
	 	 	86	 






iv









 






	 	 	 	 	 
	 	 	Page
	Section 17.15. Calculations
	 	 	87	 






EXHIBIT




	 	 	 	 	 

	Exhibit A Form of Debenture
	 	 	A-1	 






v









 





     INDENTURE dated as of November 9, 2010 between VISHAY INTERTECHNOLOGY, INC., a Delaware
corporation, as issuer (the “Company”, as more fully set forth in Section 1.01) and WILMINGTON
TRUST COMPANY, as trustee (the “Trustee”, as more fully set forth in Section 1.01).



W I T N E S S E T H:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its 2.25% Convertible Senior Debentures due 2040 (the “Debentures”), initially in an aggregate
principal amount not to exceed $275,000,000, and in order to provide the terms and conditions upon
which the Debentures are to be authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Indenture; and



     WHEREAS, the Form of Debenture, the certificate of authentication to be borne by each
Debenture, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and
the Form of Assignment and Transfer to be borne by the Debentures are to be substantially in the
forms hereinafter provided; and



     WHEREAS, all acts and things necessary to make the Debentures, 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 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 Debentures have in all respects been duly
authorized.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     That in order to declare the terms and conditions upon which the Debentures are, and are to
be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Debentures 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
Debentures (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. 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.



     “Acquiror Securities” shall have the meaning specified in Section 15.05(a).



1









 





     “Additional Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section
4.06(e) and Section 6.03, as applicable.



     “Additional Shares” shall have the meaning specified in Section 14.03(a).



     “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.



     “Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for the
Trading Price of the Debentures in accordance with Section 14.01(b)(i). The Trustee shall
initially act as the Bid Solicitation Agent.



     “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, with respect to any Debenture, any day other than a Saturday, a Sunday
or a day on which the Federal Reserve Bank of New York is closed.



     “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.



     “Cash Settlement” shall have the meaning specified in Section 14.02(a).



     “Class B Common Stock” means the Class B common stock of the Company, par value $0.10 per
share.



     “Clause A Distribution” shall have the meaning specified in Section 14.04(c).



     “Clause B Distribution” shall have the meaning specified in Section 14.04(c).



     “Clause C Distribution” shall have the meaning specified in Section 14.04(c).



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



     “Combination Settlement” shall have the meaning specified in Section 14.02(a).



     “Commission” means the U.S. Securities and Exchange Commission.



2









 





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



     “Common Stock” means the common stock of the Company, par value $0.10 per share, at the date
of this Indenture, subject to Section 14.07.



     “Company” shall have the meaning specified in the first paragraph of this Indenture, and
subject to the provisions of Article 11, shall include its successors and assigns.



     “Company Order” means a written order of the Company, signed by (a) the Company’s Chief
Executive Officer, President, Executive or Senior Vice 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 (b) any such other Officer designated in clause (a) of this definition or the
Company’s Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary, and delivered
to the Trustee.



     “Contingent Payment Regulations” shall have the meaning specified in Section 13.04.



     “Contingent Interest” shall have the meaning specified in Section 13.01(a).



     “Conversion Agent” shall have the meaning specified in Section 4.02.



     “Conversion Date” shall have the meaning specified in Section 14.02(c).



     “Conversion Obligation” shall have the meaning specified in Section 14.01(a).



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



     “Conversion Rate” shall have the meaning specified in Section 14.01(a).



     “Conversion Value” means the product of (i) the Conversion Rate in effect on the applicable
Redemption Date and (ii) the average of the Daily VWAP of the Common Stock for the five consecutive
Trading Days ending on the Trading Day immediately preceding such Redemption Date.



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at
Wilmington Trust Company, Rodney Square North, 1100 N. Market Street, Wilmington, DE 19890-0001,
Attention: Corporate Capital Market Services, or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company, or the principal corporate trust office
of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).



     “Custodian” means the Trustee, as custodian for The Depository Trust Company, with respect to
the Global Debentures, or any successor entity thereto.



3









 





     “Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, 5% of the product of (a) the Conversion Rate on such Trading Day and (b) the
Daily VWAP on such Trading Day.



     “Daily Measurement Value” means the Specified Dollar Amount (if any), divided by 20.



     “Daily Settlement Amount,” for each of the 20 consecutive Trading Days during the Observation
Period, shall consist of:




     (a) cash equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily
Conversion Value; and




     (b) if the Daily Conversion Value exceeds the Daily Measurement Value, a number of
shares of Common Stock equal to (i) the difference between the Daily Conversion Value and
the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.



     “Daily VWAP” means, for each of the 20 consecutive Trading days during the applicable
Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “VSH <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on such Trading Day (or if such
volume-weighted average price is unavailable, the market value of one share of the Common Stock on
such Trading Day determined, using a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for this purpose by the Company). The “Daily VWAP”
shall be determined without regard to after hours trading or any other trading outside of the
regular trading session trading hours.



     “Debenture” or “Debentures” shall have the meaning specified in the recitals of this
Indenture.



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



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



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



     “Depositary” means, with respect to each Global Debenture, the Person specified in Section
2.05(c) as the Depositary with respect to such Debentures, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter,
“Depositary” shall mean or include such successor.



     “Designated Institution” shall have the meaning specified in Section 14.13(a).



     “Distributed Property” shall have the meaning specified in Section 14.04(c).



4









 





     “Downside Trigger” means $500 during the period prior to November 15, 2020. Beginning on May
15, 2021 and ending on November 15, 2036, the “Downside Trigger” will increase in increments of
$12.50 per Interest Payment Period on November 15 and May 15 of each year within such period. After
November 15, 2036, the “Downside Trigger” will remain at $900. As an example and for the avoidance
of doubt, the Downside Trigger will be $700 during the period commencing on November 15, 2028 and
ending on May 15, 2029.



     “Effective Date” shall have the meaning specified in Section 14.03(c).



     “Event of Default” shall have the meaning specified in Section 6.01.



     “Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question, from the Company or, if applicable, from the seller
of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by
such exchange or market.



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



     “Extraordinary Dividend” shall have the meaning specified in Section 13.01(a)(ii).



     “Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as
Attachment 3 to the Form of Debenture attached hereto as Exhibit A.



     “Form of Fundamental Change Repurchase Notice” shall mean the “Form of Fundamental Change
Repurchase Notice” attached as Attachment 2 to the Form of Debenture attached hereto as Exhibit A.



     “Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as
Attachment 1 to the Form of Debenture attached hereto as Exhibit A.



     “Fundamental Change” shall be deemed to have occurred at the time after the Debentures are
originally issued if any of the following occurs:




     (a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, its Subsidiaries, the employee benefit plans of the Company and its
Subsidiaries, or any Permitted Holder has become the direct or indirect “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing
more than 50% of the voting power of the Company’s Common Equity; or any Permitted Holder
has become the direct or indirect “beneficial owner” of the Company’s Common Equity
representing more than 80% of the voting power of the Company’s Common Equity;




     (b) the consummation of (A) any recapitalization, reclassification or change of the
Common Stock (other than changes resulting from a subdivision or combination) as a result of
which the Common Stock would be converted into, or exchanged for, stock, other securities,
other property or assets; (B) any share exchange, consolidation or merger



5









 







of the Company pursuant to which the Common Stock will be converted into cash,
securities or other property; or (C) any sale, lease or other transfer in one transaction or
a series of transactions of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to any Person other than one of the
Company’s Subsidiaries; provided, however, that a transaction described in clause (B) in
which the holders of all classes of the Company’s Common Equity immediately prior to such
transaction beneficially own, directly or indirectly, more than 50% (measured by voting
power) of all classes of Common Equity of the continuing or surviving corporation or
transferee or the parent thereof immediately after such transaction in substantially the
same proportions (with proportionate ownership of Class B Common Stock and other shares of
common stock being measured either based on number of shares or voting power) as such
ownership immediately prior to such transaction shall not be a Fundamental Change pursuant
to this clause (b);




     (c) the stockholders of the Company approve any plan or proposal for the liquidation or
dissolution of the Company; or




     (d) the Common Stock (or other common stock underlying the Debentures) ceases to be
listed or quoted on any of The New York Stock Exchange, The NASDAQ Global Select Market or
The NASDAQ Global Market (or any of their respective successors);


provided, however, that a transaction or transactions described in clause (b) above shall not
constitute a Fundamental Change (i) in which the Common Stock is not changed or exchanged except to
the extent necessary to reflect a change in the Company’s jurisdiction of incorporation or (ii) if
90% of the consideration received or to be received by the holders of Common Stock, excluding cash
payments for fractional shares, in connection with such transaction or transactions consists of
shares of Publicly Traded Securities, and as a result of this transaction or transactions the
Debentures become convertible into such Publicly Traded Securities, excluding cash payments for
fractional shares (subject to the provisions of Section 14.02(a)).




     “Fundamental Change Company Notice” shall have the meaning specified in Section 15.01(c).



     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.01(a).



     “Fundamental Change Repurchase Notice” shall have the meaning specified in Section
15.01(b)(i).



     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.01(a).



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



6









 





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



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



     “Initial Conversion Value” means the product of (i) the initial conversion rate specified in
Section 14.01(a) and (ii) $12.34, the last reported sale price of the Common Stock on November 3,
2010.



     “Initial Purchaser” means J.P. Morgan Securities LLC.



     “Interest Payment Date” means each November 15 and May 15 of each year, beginning on May 15,
2011, subject to the adjustment specified in Section 17.06.



     “Interest Payment Period” means the period between consecutive Interest Payment Dates.



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



     “Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental
Change (as defined above and determined after giving effect to any exceptions to or exclusions from
such definition, but without regard to the proviso in clause (b) of the definition thereof).



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



     “Maturity Date” means November 15, 2040.



7









 





     “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).



     “Merger Event” shall have the meaning specified in Section 14.07(a).



     “Notice of Conversion” shall have the meaning specified in Section 14.02(b).



     “Observation Period” with respect to any Debenture surrendered for conversion means: (i)
subject to clause (ii), if the relevant Conversion Date occurs prior to August 15, 2040, the 20
consecutive Trading Day period beginning on, and including, the third Trading Day after such
Conversion Date; (ii) if the relevant Conversion Date occurs on or after the date of the Company’s
issuance of a Redemption Notice with respect to the Debentures pursuant to Section 16.02 and prior
to the relevant Redemption Date, the 20 consecutive Trading Days beginning on, and including, the
22nd Scheduled Trading Day immediately preceding such Redemption Date; and (iii) if the
relevant Conversion Date occurs on or after August 15, 2040, the 20 consecutive Trading Days
beginning on, and including, the 22nd Scheduled Trading Day immediately preceding the
Maturity Date.



     “Offering Memorandum” means the preliminary offering memorandum dated November 3, 2010, as
supplemented by the pricing term sheet dated November 3, 2010, relating to the offering and sale of
the Debentures.



     “Officer” means, with respect to the Company, the President, the Chief Executive Officer, the
Treasurer, the Secretary, any Executive or Senior Vice 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”).



     “Officers’ Certificate,” when used with respect to the Company, means a certificate that is
delivered to the Trustee and that is signed by (a) two Officers of the Company or (b) one Officer
of the Company and one of the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company. Each such certificate shall include the statements
provided for in Section 17.05 if and to the extent required by the provisions of such Section. One
of the Officers giving an Officers’ Certificate pursuant to Section 4.08 shall be the principal
executive, financial or accounting officer of the Company.



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



     “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 acceptable to the Trustee, that is
delivered to the Trustee. Each such opinion shall include the statements provided for in Section
17.05 if and to the extent required by the provisions of such Section 17.05.



     “Optional Redemption” shall have the meaning specified in Section 16.01(a).



     “outstanding,” when used with reference to Debentures, shall, subject to the provisions of
Section 8.04, mean, as of any particular time, all Debentures authenticated and delivered by the
Trustee under this Indenture, except:



8









 






     (a) Debentures (including, for the avoidance of doubt, Debentures repurchased by the
Company pursuant to Section 2.10) theretofore canceled by the Trustee or accepted by the
Trustee for cancellation;




     (b) Debentures, or portions thereof, that have become due and payable and in respect of
which monies in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent);




     (c) Debentures that have been paid pursuant to Section 2.06 or Debentures in lieu of
which, or in substitution for which, other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is
presented that any such Debentures are held by protected purchasers in due course; and




     (d) Debentures converted pursuant to Article 14 and required to be cancelled pursuant
to Section 2.08.



     “Paying Agent” shall have the meaning specified in Section 4.02.



     “Permitted Holder” means each of Dr. Felix Zandman, his children and lineal descendants, his
wife, and her children and lineal descendants, any trust established for the benefit of such
persons, or any “person” (as such term is used in Section 13(d) or 14(d) of the Exchange Act),
directly or indirectly, controlling, controlled by or under common control with any such person
previously mentioned in this paragraph, or any trust established for the benefit of such persons or
any charitable trust or non-profit entry established by such persons, or any group in which such
persons hold more than a majority of the voting power of the Common Stock and Class B Common Stock
deemed to be beneficially owned by such group.



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



     “Physical Debentures” means permanent certificated Debentures in registered form issued in
minimum denominations of $2,000 principal amount and integral multiples of $1,000 thereafter.



     “Physical Settlement” shall have the meaning specified in Section 14.02(a).



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



9









 





     “Publicly Traded Securities” means shares of common stock that are listed or quoted on any of
The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of
their respective successors) or will be so listed or quoted when issued or exchanged in connection
with a Fundamental Change described in clause (b) of the definition thereof.



     “Purchase Agreement” means that certain Purchase Agreement, dated as of November 3, 2010,
between the Company and the Initial Purchaser.



     “Record Date” means, with respect to any dividend, distribution or other transaction or event
in which the holders of Common Stock (or other security) 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, by statute, by contract or otherwise).



     “Redemption Date” shall have the meaning specified in Section 16.02(a).



     “Redemption Notice” shall have the meaning specified in Section 16.02(a).



     “Redemption Price” means:



          (a) with respect to an Optional Redemption, 100% of the principal amount of Debentures to be
redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (unless
the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding
Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to
Holders of record of such Debentures on such Regular Record Date, and the “Redemption Price” will
be equal to 100% of the principal amount of the Debentures to be redeemed); or




          (b) with respect to a Tax Triggering Event Redemption, 101.5% of the principal amount of
Debentures to be redeemed, plus (i) accrued and unpaid interest, if any, to, but excluding, the
Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to
the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest
Payment Date will be paid to Holders of record of such Debentures on such Regular Record Date, and
the “Redemption Price” will be equal to 101.5% of the principal amount of the Debentures to be
redeemed) and (ii) if the Conversion Value of the Debentures to be redeemed exceeds the Initial
Conversion Value, 91% of the amount determined by subtracting the Initial Conversion Value of such
Debentures from their Conversion Value.




     “Reference Property” shall have the meaning specified in Section 14.07(a).



     “Regular Record Date,” with respect to any Interest Payment Date, shall mean the later of the
November 1 or May 1 (whether or not such day is a Business Day) immediately preceding the
applicable November 15 or May 15 Interest Payment Date.



10









 





     “Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).



     “Responsible Officer” means, 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 secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



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



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



     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal
U.S. national or regional securities exchange or market on which the Common Stock is listed or
admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled
Trading Day” means a Business Day.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.



     “Settlement Amount” has the meaning specified in Section 14.02(a)(iv).



     “Settlement Method” means, with respect to any conversion of Debentures, Physical Settlement,
Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the
Company.



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



     “Significant Subsidiary” means a Subsidiary of the Company that meets the definition of
“significant subsidiary” in Article 1, Rule 1-02(w) of Regulation S-X under the Exchange Act.



     “Specified Dollar Amount” means the maximum cash amount per $1,000 principal amount of
Debentures to be received upon conversion as specified in the Settlement Notice related to any
converted Debentures.



     “Spin-Off” shall have the meaning specified in Section 14.04(c).



     “Stock Price” shall have the meaning specified in Section 14.03(c).



     “Subsidiary” means, with respect to any Person, any corporation, association, partnership or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
or other interests (including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, general partners or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii)



11









 




such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of
such Person.




     “Successor Company” shall have the meaning specified in Section 11.01(a).



     “Tax Triggering Event” means the enactment of United States federal legislation, promulgation
of regulations by the United States Department of the Treasury (“Treasury”), issuance of a
published ruling, notice, announcement or equivalent form of guidance by the Treasury or the
Internal Revenue Service, or the issuance of a judicial decision if the Company determines, or
receives an opinion of its outside counsel to the effect that, any such authority will have the
effect of lowering the comparable yield or delaying or otherwise limiting the current deductibility
of interest or original issue discount with respect to the Debentures, provided that the Company
determines that such reduction, delay, or limitation is material.



     “Tax Triggering Event Redemption” shall have the meaning specified in Section 16.01(b).



     “Trading Day” means a day on which (i) trading in the Common Stock generally occurs on The New
York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange, on
the principal other U.S. national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Common Stock is then traded and (ii) a Last
Reported Sale Price for the Common Stock is available on such securities exchange or market;
provided that if the Common Stock (or other security for which a closing sale price must be
determined) is not so listed or traded, “Trading Day” means a Business Day; and provided, further,
that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on
which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs
on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock
Exchange, on the principal other U.S. national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the Common Stock is then listed or
admitted for trading, except that if the Common Stock is not so listed or admitted for trading,
“Trading Day” means a Business Day.



     “Trading Price” of the Debentures on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of Debentures obtained by the Bid
Solicitation Agent for $5,000,000 principal amount of Debentures at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally recognized securities
dealers the Company selects; provided that if at least three such bids cannot reasonably be
obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation
Agent, that one bid shall be used.



     “transfer” shall have the meaning specified in Section 2.05(c).



     “Trigger Event” shall have the meaning specified in Section 14.04(c).



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



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



     “Upside Trigger” means $1,500.



     “unit of Reference Property” shall have the meaning specified in Section 14.07(a).



     “Valuation Period” shall have the meaning specified in Section 14.04(c).



     Section 1.02. References to Interest. Unless the context otherwise requires, any reference
to interest on, or in respect of, any Debenture in this Indenture shall be deemed to include (a)
Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant
to any of Section 4.06(d), Section 4.06(e) and Section 6.03 and (b) Contingent Interest if, in such
context, Contingent Interest is, was or would be payable pursuant to Section 13.01(a). Unless the
context otherwise requires, any express mention of Additional Interest or Contingent Interest in
any provision hereof shall not be construed as excluding Additional Interest or Contingent
Interest, respectively, in those provisions hereof where such express mention is not made.



ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Debentures




     Section 2.01. Designation and Amount. The Debentures shall be designated as the “2.25%
Convertible Senior Debentures due 2040.” The aggregate principal amount of Debentures that may be
authenticated and delivered under this Indenture is initially limited to $275,000,000, subject to
Section 2.10 and except for Debentures authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of other Debentures pursuant to Section 2.05, Section 2.06,
Section 10.04, Section 14.02 and Section 15.03.



     Section 2.02. Form of Debentures. The Debentures and the Trustee’s certificate of
authentication to be borne by such Debentures shall be substantially in the respective forms set
forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly
incorporated in and made a part of this Indenture. 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 Global Debenture may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this Indenture as may be
required by the Custodian or the Depositary, or as may be required to comply with any



13









 




applicable law or any regulation thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which the Debentures may be listed or traded
or designated for issuance or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Debentures are subject.




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



     Each Global Debenture shall represent such principal amount of the outstanding Debentures as
shall be specified therein and shall provide that it shall represent the aggregate principal amount
of outstanding Debentures from time to time endorsed thereon and that the aggregate principal
amount of outstanding Debentures represented thereby may from time to time be increased or reduced
to reflect repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of
the Global Debenture to reflect the amount of any increase or decrease in the amount of outstanding
Debentures 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 Debentures in
accordance with this Indenture. Payment of principal (including the Fundamental Change Repurchase
Price, if applicable) of, and accrued and unpaid interest on, the Global Debenture shall be made to
the Holder of such Debenture on the date of payment, unless a record date or other means of
determining Holders eligible to receive payment is provided for herein.



     Section 2.03. Date and Denomination of Debentures; Payments of Interest. (a) The Debentures
shall be issuable in registered form without coupons in minimum denominations of $2,000 principal
amount and integral multiples of $1,000 thereafter. Each Debenture shall be dated the date of its
authentication and shall bear interest from the date specified on the face of the form of Debenture
attached as Exhibit A hereto. Accrued interest on the Debentures shall be computed on the basis of
a 360-day year composed of twelve 30-day months.



     (b) The Person in whose name any Debenture (or its Predecessor Debenture) is registered on the
Debenture Register at the close of business on any Regular Record Date with respect to any Interest
Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.
Interest shall be payable at the office or agency of the Company maintained by the Company for such
purposes, which shall initially be the Corporate Trust Office. The Company shall pay interest (i)
on any Physical Debentures (A) to Holders having an aggregate principal amount of $5,000,000 or
less, by check mailed to the Holders of these Debentures at their address as it appears in the
Debenture Register and (B) to Holders having an aggregate principal amount of more than $5,000,000,
either by check mailed to the Holders of these Debentures or upon application by a Holder to the
Debenture Registrar not later than the relevant Regular Record Date, by wire transfer in
immediately available funds to that Holder’s account within the United States, which application
shall remain in effect until the Holder



14









 




notifies, in writing, the Debenture Registrar to the contrary or (ii) on any Global Debenture
by wire transfer of immediately available funds to the account of the Depositary or its nominee.




     Section 2.04. Execution, Authentication and Delivery of Debentures. The Debentures shall be
signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief
Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive
or Senior Vice Presidents.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Debentures executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Debentures, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Debentures, without any
further action by the Company hereunder.



     Only such Debentures as shall bear thereon a certificate of authentication substantially in
the form set forth on the form of Debenture attached as Exhibit A hereto, executed manually by an
authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided
by Section 17.10), 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 any
Debenture executed by the Company shall be conclusive evidence that the Debenture 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 Debentures shall cease to
be such Officer before the Debentures so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debentures nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debentures had not ceased to be such
Officer of the Company; and any Debenture may be signed on behalf of the Company by such persons
as, at the actual date of the execution of such Debenture, shall be the 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 Debentures; Restrictions on Transfer;
Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the
register maintained in such office or in any other office or agency of the Company designated
pursuant to Section 4.02, the “Debenture Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Debentures and
of transfers of Debentures. Such register shall be in written form or in any form capable of being
converted into written form within a reasonable period of time. The Trustee is hereby appointed
the “Debenture Registrar” for the purpose of registering Debentures and transfers of Debentures as
herein provided. The Company may appoint one or more co-Debenture Registrars in accordance with
Section 4.02.



     Upon surrender for registration of transfer of any Debenture to the Debenture 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 Debentures of any authorized



15









 




denominations and of a like aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture.




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



     All Debentures presented or surrendered for registration of transfer or for exchange,
repurchase or conversion shall (if so required by the Company, the Trustee, the Debenture Registrar
or any co-Debenture Registrar) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and duly executed, by the Holder
thereof or its attorney-in-fact duly authorized in writing.



     No service charge shall be charged to the Holder for any exchange or registration of transfer
of Debentures, but the Company or the Trustee may require a Holder to pay a sum sufficient to cover
any tax or other similar governmental charge required by law or permitted pursuant to Section
14.02(e).



     None of the Company, the Trustee, the Debenture Registrar or any co-registrar shall be
required to exchange or register a transfer of (i) any Debentures surrendered for conversion or, if
a portion of any Debenture is surrendered for conversion, such portion thereof surrendered for
conversion, (ii) any Debentures, or a portion of any Debenture, surrendered for repurchase (and not
withdrawn) in accordance with Article 15 or (iii) any Debentures selected for redemption in
accordance with Article 16.



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



     (b) So long as the Debentures are eligible for book-entry settlement with the Depositary,
unless otherwise required by law, all Debentures shall be represented by one or more Debentures in
global form (each, a “Global Debenture”) registered in the name of the Depositary or the nominee of
the Depositary. The transfer and exchange of beneficial interests in a Global Debenture that does
not involve the issuance of a Physical Debenture, shall be effected through the Depositary (but not
the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.



     (c) Every Debenture 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
Debentures and required to bear the legend set forth in Section 2.05(d), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section
2.05(c) (including the legend set forth below), unless such restrictions on transfer



16









 




shall be eliminated or otherwise waived by written consent of the Company, and the Holder of
each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such
restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.




     Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date
that is one year after the last date of original issuance of the Debentures, or such shorter period
of time as permitted by Rule 144 under the Securities Act or any successor provision thereto, and
(2) such later date, if any, as may be required by applicable law, any certificate evidencing such
Debenture (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
Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless
such Debentures have been transferred pursuant to a registration statement that has become or been
declared effective under the Securities Act and that continues to be effective at the time of such
transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar
provision then in force under the Securities Act, or unless otherwise agreed by the Company in
writing, with notice thereof to the Trustee):



     THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




     (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




     (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




     (A) TO VISHAY INTERTECHNOLOGY, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF,
OR




     (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR



17









 






     (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR




     (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



     PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.



     No transfer of any Debenture prior to the Resale Restriction Termination Date will be
registered by the Debenture Registrar unless the applicable box on the Form of Assignment and
Transfer has been checked.



     Any Debenture (or security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms may, upon surrender of
such Debenture for exchange to the Debenture Registrar in accordance with the provisions of this
Section 2.05, be exchanged for a new Debenture or Debentures, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required by this Section 2.05(c). The Company
shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date
and promptly after a registration statement, if any, with respect to the Debentures or any Common
Stock issued upon conversion of the Debentures has been declared effective under the Securities
Act.



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



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



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     If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or
unable to continue as depositary for the Global Debentures and a successor depositary is not
appointed within 90 calendar days; (ii) the Depositary ceases to be registered as a clearing agency
under the Exchange Act and a successor depositary is not appointed within 90 calendar days; (iii)
the Company, at its option, notifies the Trustee that it elects to cause the issuance of Physical
Debentures, subject to the Depositary’s procedures; or (iv) an Event of Default in respect of the
Debentures has occurred and is continuing and the Trustee has received a request from the
Depositary, the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate and
a Company Order for the authentication and delivery of Debentures, will authenticate and deliver
Physical Debentures to each beneficial owner of the related Debentures (or a portion thereof) in an
aggregate principal amount equal to the principal amount of such Global Debenture, in exchange for
such Global Debenture, and upon delivery of the Global Debenture to the Trustee such Global
Debenture shall be canceled.



     Notwithstanding the foregoing provisions, beneficial interests in a Global Debenture may be
exchanged for Physical Debentures in accordance with the procedures of the Depositary.



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



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



     Neither the Company, the Trustee nor any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Debenture or maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.



     (d) Until the Resale Restriction Termination Date, any stock certificate representing Common
Stock issued upon conversion of such Debenture shall bear a legend in substantially the following
form (unless the Debenture or such Common Stock has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to
be effective at the time of such transfer, or pursuant to the exemption from registration provided
by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock
has been issued upon conversion of Debentures that have been



19









 




transferred pursuant to a registration statement that has become or been declared effective
under the Securities Act and that continues to be effective at the time of such transfer, or
pursuant to the exemption from registration provided by Rule 144 or any similar provision then in
force under the Securities Act, or unless otherwise agreed by the Company with written notice
thereof to the Trustee and any transfer agent for the Common Stock):




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE ACQUIRER:




     (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




     (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS
THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:




     (A) TO VISHAY INTERTECHNOLOGY, INC. (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF,
OR




     (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR




     (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, OR




     (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



     PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO



20









 




REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.




     Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms 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 aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).



     (e) Any Debenture or Common Stock issued upon the conversion or exchange of a Debenture that
is repurchased 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 that results in such
Debentures or Common Stock, as the case may be, no longer being “restricted securities” (as defined
under Rule 144 under the Securities Act).



     Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures. In case any Debenture 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 deliver, a new Debenture, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Debenture, or in lieu of and in substitution for the
Debenture so destroyed, lost or stolen. In every case the applicant for a substituted Debenture
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 from 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 Debenture and of the ownership thereof.



     The Trustee or such authenticating agent may authenticate any such substituted Debenture and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substitute Debenture,
the Company or the Trustee 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 Debenture that has matured or is about to mature or has
been surrendered for required repurchase or is about to be converted in accordance with Article 14
shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion,
instead of issuing a substitute Debenture, 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 Debenture),
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 connected with such substitution, and, in every case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent
evidence of their satisfaction of the destruction, loss or theft of such Debenture and of the
ownership thereof.



21









 





     Every substitute Debenture issued pursuant to the provisions of this Section 2.06 by virtue of
the fact that any Debenture is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debenture 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 Debentures duly
issued hereunder. To the extent permitted by law, all Debentures 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 repurchase of mutilated, destroyed, lost or stolen Debentures 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 of
negotiable instruments or other securities without their surrender.



     Section 2.07. Temporary Debentures. Pending the preparation of Physical Debentures, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
written request of the Company, authenticate and deliver temporary Debentures (printed or
lithographed). Temporary Debentures shall be issuable in any authorized denomination, and
substantially in the form of the Physical Debentures but with such omissions, insertions and
variations as may be appropriate for temporary Debentures, all as may be determined by the Company.
Every such temporary Debenture 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 Physical Debentures. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Physical Debentures (other than any
Global Debenture) and thereupon any or all temporary Debentures (other than any Global Debenture)
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
deliver in exchange for such temporary Debentures an equal aggregate principal amount of Physical
Debentures. Such exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Debentures shall in all respects be entitled to the
same benefits and subject to the same limitations under this Indenture as Physical Debentures
authenticated and delivered hereunder.



     Section 2.08. Cancellation of Debentures Paid, Converted, Etc. The Company shall cause all
Debentures surrendered for the purpose of payment, repurchase, redemption, registration of transfer
or exchange or conversion, if surrendered to any Person other than the Trustee (including any of
the Company’s Agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for
cancellation. All Debentures delivered to the Trustee shall be canceled promptly by it, and no
Debentures shall be authenticated in exchange thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of canceled Debentures in accordance with
its customary procedures and, after such disposition, shall deliver a certificate of such
disposition to the Company, at the Company’s written request in a Company Order. If the Company
shall acquire any of the Debentures, such acquisition shall not operate as a redemption, repurchase
or satisfaction of the indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.



     Section 2.09. CUSIP Numbers. The Company in issuing the Debentures may use “CUSIP” numbers
(if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers



22









 




in all notices issued to Holders as a convenience to such Holders; provided that any such
notice may state that no representation is made as to the correctness of such numbers either as
printed on the Debentures or on such notice and that reliance may be placed only on the other
identification numbers printed on the Debentures. The Company will promptly notify the Trustee in
writing of any change in the “CUSIP” numbers.




     Section 2.10. Additional Debentures; Repurchases. The Company may, without the consent of
the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Debentures
hereunder with the same terms and with the same CUSIP number as the Debentures initially issued
hereunder in an unlimited aggregate principal amount; provided that such additional Debentures must
be fungible with the Debentures initially issued hereunder for U.S. federal income tax purposes.
Prior to the issuance of any such additional Debentures, the Company shall deliver to the Trustee a
Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and
Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the
Trustee shall reasonably request. In addition, the Company may, to the extent permitted by law,
directly or indirectly (regardless of whether such Debentures are surrendered to the Company),
repurchase Debentures in the open market or otherwise, whether by the Company or its Subsidiaries
or through a private or public tender or exchange offer or through counterparties to private
agreements, including by cash-settled swaps or other derivatives. The Company shall cause any
Debentures so purchased to be surrendered to the Trustee for cancellation in accordance with
Section 2.08. For the avoidance of doubt, for the purpose of the foregoing, Debentures purchased
pursuant to cash-settled swaps or other derivatives shall not be considered “purchased.”



ARTICLE 3

Satisfaction and Discharge




     Section 3.01. Satisfaction and Discharge. This Indenture shall upon request of the Company
contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the
expense of the Company, shall execute instruments as reasonably requested by the Company
acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Debentures theretofore
authenticated and delivered (other than (x) Debentures which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.06 and (y) Debentures for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided in Section
4.04(d)) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited
with the Trustee or delivered to Holders, as applicable, after the Debentures have become due and
payable, whether at the Maturity Date, on any Redemption Date or Fundamental Change Repurchase
Date, or upon conversion or otherwise, cash, shares of Common Stock, or a combination thereof,
solely to satisfy the Company’s Conversion Obligation, Acquiror Securities as applicable, or
government obligations, sufficient to pay all of the outstanding Debentures and all other sums due
and payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied
with. Notwithstanding the



23









 




satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 7.06 shall survive.




ARTICLE 4

Particular Covenants of the Company




     Section 4.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, each of the Debentures at the places, at the
respective times and in the manner provided herein and in the Debentures.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain an office or
agency where the Debentures may be surrendered for registration of transfer or exchange or for
presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and
where notices and demands to or upon the Company in respect of the Debentures 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. 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.



     The Company may also from time to time designate as co-Debenture Registrars one or more other
offices or agencies where the Debentures 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 terms “Paying Agent” and “Conversion Agent” include any such
additional or other offices or agencies, as applicable.



     The Company hereby initially designates the Trustee as the Paying Agent, Debenture 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.



     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 7.09, 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, 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:




     (i) that it will hold all sums held by it as such agent for the payment of the
principal (including the Fundamental Change Repurchase Price, if applicable) of, and accrued
and unpaid interest on, the Debentures in trust for the benefit of the Holders of the
Debentures;



24









 






     (ii) that it will give the Trustee prompt notice of any failure by the Company to make
any payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, and accrued and unpaid interest on, the Debentures when the same shall be
due and payable; and




     (iii) 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 (including the Fundamental
Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Debentures,
deposit with the Paying Agent a sum sufficient to pay such principal (including the Fundamental
Change Repurchase Price, if applicable) or accrued and unpaid 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 must be received by the
Paying Agent by 11:00 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 (including the Fundamental Change Repurchase Price, if applicable) of, and accrued
and unpaid interest on, the Debentures, set aside, segregate and hold in trust for the benefit of
the Holders of the Debentures a sum sufficient to pay such principal (including the Fundamental
Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will
promptly notify the Trustee in writing of any failure to take such action and of any failure by the
Company to make any payment of the principal (including the Fundamental Change Repurchase Price, if
applicable) of, or accrued and unpaid interest on, the Debentures 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, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the
Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be
held by the Trustee upon the trusts herein contained and upon such payment or delivery by the
Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from
all further liability but only with respect to such sums or amounts.



     (d) Any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal (including the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, any Debenture and
remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase
Price, if applicable) or interest has become due and payable shall be paid to the Company on
request of the Company contained in an Officers’ Certificate, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Debenture shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money and shares of Common Stock, and all
liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in a newspaper published in the English language,
customarily published on each Business



25









 




Day and of general circulation in The City of New York, notice that such money and shares of
Common Stock remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money and shares of
Common Stock then remaining will be repaid or delivered to the Company.




     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 corporate existence.



     Section 4.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the
Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall, so long as
any of the Debentures or any shares of Common Stock issuable upon conversion thereof shall, at such
time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities
Act, promptly provide to the Trustee and shall, upon written request, provide to any Holder,
beneficial owner or prospective purchaser of such Debentures or any shares of Common Stock issued
upon conversion of such Debentures, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of such Debentures or shares of Common
Stock pursuant to Rule 144A under the Securities Act. The Company shall take such further action
as any Holder or beneficial owner of such Debentures or such Common Stock may reasonably request to
the extent required from time to time to enable such Holder or beneficial owner to sell such
Debentures or shares of Common Stock in accordance with Rule 144A under the Securities Act, as such
rule may be amended from time to time.



     (b) The Company shall file with the Trustee within 45 calendar days after the same are
required to be filed with the Commission, copies of any documents or reports that the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act). Any such document or
report that the Company files with the Commission via the Commission’s EDGAR system shall be deemed
to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents are
filed via the EDGAR system.



     (c) Delivery of the reports and documents described in subsection (b) above 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 conclusively rely on an Officers’ Certificate). The Trustee is under no
duty to examine such reports, information or documents to ensure compliance with the provisions of
this Indenture or to ascertain the correctness or otherwise of the information or the statements
contained therein. The Trustee is entitled to assume such compliance and correctness unless a
Responsible Officer of the Trustee is informed otherwise. The Trustee shall not be obligated to
monitor or confirm, on a continuing basis or otherwise, the Company’s or any other Person’s
compliance with the covenants described above or with respect to any reports or other documents
filed under this Agreement.



     (d) If, at any time during the six-month period beginning on, and including, the date that is
six months after the last date of original issuance of the Debentures, the Company fails to timely
file any document or report that it is required to file with the Commission pursuant to



26









 




Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable
grace periods thereunder and other than reports on Form 8-K) and the Company has not cured such
failure to timely file within 14 days after such failure, or the Debentures are not otherwise
freely tradable by Holders other than the Company’s Affiliates (as a result of restrictions
pursuant to U.S. securities law or the terms of this Indenture or the Debentures), the Company
shall pay Additional Interest on the Debentures. Such Additional Interest shall accrue on the
Debentures at the rate of 0.25% per annum of the principal amount of the Debentures outstanding for
each day during the first 90-day period beginning on, and including, the date on which the
Company’s failure to file has occurred and is continuing, and 0.50% per annum of the principal
amount of Debentures outstanding for each day after the 90th day, in each case ending on the date
that is one year after the last original issuance date of such Debentures. As used in this Section
4.06(d), documents or reports that the Company is required to “file” with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company
furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.




     (e) If, and for so long as, the restrictive legend on the Debentures specified in Section
2.05(c) has not been removed or the Debentures are not otherwise freely tradable by Holders other
than the Company’s Affiliates (without restrictions pursuant to U.S. securities law or the terms of
this Indenture or the Debentures) as of the 365th day after the last date of original issuance of
the Debentures, the Company shall pay Additional Interest on the Debentures at a rate equal to
0.25% per annum of the principal amount of Debentures outstanding during the first 90 days of such
period, and 0.50% per annum of the principal amount of the Debentures outstanding for each day
after the 90th day, until the restrictive legend on the Debentures has been removed in accordance
with Section 2.05(c) and the Debentures are freely tradable by Holders other than the Company’s
Affiliates (without restrictions pursuant to U.S. securities law or the terms of this Indenture or
the Debentures).



     (f) Additional Interest will be payable in arrears on each Interest Payment Date following
accrual in the same manner as ordinary interest on the Debentures.



     (g) The Additional Interest that is payable in accordance with Section 4.06(d) or Section
4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as
a result of the Company’s election pursuant to Section 6.03.



     (h) If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section
4.06(e), the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at
the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such
Additional Interest is payable. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting
forth the particulars of such payment.



     Section 4.07. 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 stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the principal of



27









 




or interest on the Debentures as contemplated herein, wherever enacted, now or at any time
hereafter in force, or that 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 4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the
fiscal year ending on December 31, 2010) an Officers’ Certificate stating whether or not the
signers thereof have knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.



     In addition, the Company shall deliver to the Trustee, as soon as possible, and in any event
within 60 days after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action that the Company proposes to take with respect thereto.



     Section 4.09. Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.



ARTICLE 5

Lists of Holders and Reports by the Company and the Trustee




     Section 5.01. Lists of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than 15 days after each May 1 and
November 1 in each year beginning with May 1, 2011, and at such other times as the Trustee may
request in writing, within 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 as of a date not more than 15 days (or such other date as the Trustee
may reasonably request in order to so provide any such notices) prior to the time such information
is furnished, except that no such list need be furnished so long as the Trustee is acting as
Debenture Registrar.



     Section 5.02. Preservation and Disclosure of Lists. The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Debenture Registrar, 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.



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ARTICLE 6

Defaults and Remedies




     Section 6.01. Events of Default. The following events shall be “Events of Default” with
respect to the Debentures:



     (a) default in any payment of interest on any Debenture when due and payable, and the default
continues for a period of 30 calendar days;



     (b) default in the payment of principal of any Debenture when due and payable on the Maturity
Date, upon Optional Redemption or Tax Triggering Event Redemption, upon required repurchase, upon
declaration of acceleration or otherwise;



     (c) failure by the Company to comply with its obligation to convert the Debentures in
accordance with this Indenture upon exercise of a Holder’s conversion right and such failure
continues for five business days;



     (d) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 15.01(c) or notice of a specified corporate event in accordance with Section 14.01(b)(ii)
or Section 14.01(b)(iii), in each case when due;



     (e) failure by the Company to comply with its obligations under Article 11;



     (f) failure by the Company to comply with any of its other agreements contained in the
Debentures or this Indenture for 60 days after it receives written notice from the Trustee or the
Holders of at least 25% in principal amount of the Debentures then outstanding;



     (g) default by the Company or any Significant Subsidiary with respect to any mortgage,
agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $25 million in the aggregate
of the Company and/or any Significant Subsidiary, whether such indebtedness now exists or shall
hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable
or (ii) constituting a failure to pay the principal or interest of any such debt when due and
payable at its stated maturity, upon required repurchase, upon declaration of acceleration or
otherwise;



     (h) a final judgment for the payment of $25 million or more (excluding any amounts covered by
insurance) rendered against the Company or any Significant Subsidiary, which judgment is not
discharged or stayed within 60 days after (i) the date on which the right to appeal thereof has
expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been
extinguished;



     (i) the Company or any Significant Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to the Company or any
such Significant Subsidiary 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 such Significant Subsidiary or any



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substantial part of its property, 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 it, or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or




     (j) an involuntary case or other proceeding shall be commenced against the Company or any
Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the
Company or such Significant Subsidiary 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 such Significant Subsidiary or
any substantial part of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 30 consecutive days.



     Section 6.02. Acceleration; Rescission and Annulment. In case one or more Events of Default
shall have occurred and be continuing (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) of which a Responsible Officer of the Trustee has actual knowledge, then, and in each and
every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j)
with respect to the Company or any of its Significant Subsidiaries), unless the principal of all of
the Debentures shall have already become due and payable, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Debentures then outstanding determined in accordance
with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders),
may declare 100% of the principal of, and accrued and unpaid interest on, all the Debentures to be
due and payable immediately, and upon any such declaration the same shall become and shall
automatically be immediately due and payable, anything in this Indenture or in the Debentures
contained to the contrary notwithstanding. If an Event of Default specified in Section 6.01(i) or
Section 6.01(j) with respect to the Company or any of its Significant Subsidiaries occurs and is
continuing, the principal of, and accrued and unpaid interest on, all Debentures shall be
automatically and immediately due and payable.



     This provision, however, is subject to the conditions that if, at any time after the principal
of the Debentures shall have been so declared due and payable, and before any judgment or decree
for the payment of the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued
and unpaid interest upon all Debentures and the principal of any and all Debentures that shall have
become due otherwise than by acceleration (with interest on overdue installments of accrued and
unpaid interest to the extent that payment of such interest is enforceable under applicable law,
and on such principal at the rate borne by the Debentures plus one percent at such time) and
amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with
any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of
Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid
interest, if any, on Debentures that shall have become due solely by such acceleration, shall have
been cured or waived pursuant to Section 6.09, then and in every such case the Holders of a
majority in aggregate principal amount of the Debentures then outstanding, by written notice to the
Company and to the Trustee, may waive all Defaults or Events of Default with respect to the
Debentures and rescind and annul such declaration and its




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consequences and such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; 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. Notwithstanding anything to the contrary
herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or
Event of Default resulting from (i) the nonpayment of the principal of, or accrued and unpaid
interest on, any Debentures, (ii) a failure to repurchase any Debentures when required or (iii) a
failure to pay or deliver, as the case may be, the consideration due upon conversion of the
Debentures.




     Section 6.03. Additional Interest. Notwithstanding anything in this Indenture or in the
Debentures to the contrary, to the extent the Company elects, the sole remedy for an Event of
Default relating to the Company’s failure to comply with its obligations as set forth in Section
4.06(b) shall after the occurrence of such an Event of Default consist exclusively of the right to
receive Additional Interest on the Debentures at a rate equal to 0.25% per annum of the principal
amount of the Debentures outstanding for each day during the first 120-day period on which such
Event of Default is continuing beginning on, and including, the date on which such an Event of
Default first occurs, and 0.50% per annum of the principal amount of the Debentures outstanding for
each day from the 121st day until and including the 180th day following the
occurrence of such an Event of Default. Additional Interest payable pursuant to this Section 6.03
shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section
4.06(d) or Section 4.06(e). If the Company so elects, such Additional Interest shall be payable in
the same manner and on the same dates as ordinary interest on the Debentures. On the 181st day
after such Event of Default (if the Event of Default relating to the Company’s failure to file is
not cured or waived prior to such 181st day), such Additional Interest shall cease to further
accrue and the Debentures will be subject to acceleration as provided in Section 6.02. In the
event the Company does not elect to pay Additional Interest following an Event of Default in
accordance with this Section 6.03, the Debentures shall be subject to acceleration as provided in
Section 6.02.



     In order to elect to pay Additional Interest as the sole remedy during the first 180 days
after the occurrence of any Event of Default described in the immediately preceding paragraph, the
Company must notify all Holders of the Debentures, the Trustee and the Paying Agent of such
election prior to the beginning of such 180-day period. Upon the failure to timely give such
notice, the Debentures shall be immediately subject to acceleration as provided in Section 6.02.



     Section 6.04. Payments of Debentures on Default; Suit Therefor. If an Event of Default
described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the Debentures, the whole amount then
due and payable on the Debentures for principal and interest, if any, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts due to the Trustee under Section
7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon the Debentures and collect
the moneys adjudged or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon the Debentures, wherever situated.



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     In the event there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debentures 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 event of any other judicial proceedings relative to the Company or such other obligor
upon the Debentures, or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Debentures 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 6.04, 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 and accrued and unpaid interest, if any, in respect of the Debentures, and, in
case of any judicial proceedings, to file such proofs of claim and other papers or documents and to
take such other actions as it may deem necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings
relative to the Company or any other obligor on the Debentures, 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 any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of the Holders to make such
payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements, including agents and
counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred by it
up to the date of such distribution. To the extent that such payment of reasonable compensation,
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 that the Holders of the
Debentures may be entitled to receive in such proceedings, whether in liquidation or under any plan
of reorganization or arrangement or otherwise.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Holder or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.



     All rights of action and of asserting claims under this Indenture, or under any of the
Debentures, may be enforced by the Trustee without the possession of any of the Debentures, 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 Debentures.



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     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 Debentures, and it shall not be necessary to make any Holders
of the Debentures parties to any such proceedings.



     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, and the Trustee shall, subject to any determination in
such proceeding, be restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Holders, and the Trustee shall continue as though
no such proceeding had been instituted.



     Section 6.05. Application of Monies Collected by Trustee. Any monies collected by the
Trustee pursuant to this Article 6 with respect to the Debentures 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 Debentures, 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 Debentures shall not have become due and be
unpaid, to the payment of interest on, and any cash due upon conversion of, the Debentures in
default in the order of the date due of the payments of such interest and cash due upon conversion,
as the case may be, with interest (to the extent that such interest has been collected by the
Trustee) upon such overdue payments at the rate borne by the Debentures at such time, such payments
to be made ratably to the Persons entitled thereto;



     Third, in case the principal of the outstanding Debentures shall have become due, by
declaration of acceleration or otherwise, and be unpaid to the payment of the whole amount
(including, if applicable, the payment of the Fundamental Change Repurchase Price and any cash due
upon conversion) then owing and unpaid upon the Debentures for principal and interest, if any, with
interest on the overdue principal and, to the extent that such interest has been collected by the
Trustee, upon overdue installments of interest at the rate borne by the Debentures at such time,
and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Debentures, then to the payment of such principal (including, if applicable, the
Fundamental Change Repurchase Price and the cash due upon conversion) and interest without
preference or priority of principal over interest, or of interest over principal or of any
installment of interest over any other installment of interest, or of any Debenture over any other
Debenture, ratably to the aggregate of such principal (including, if applicable, the Fundamental
Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and



     Fourth, to the payment of the remainder, if any, to the Company.



     Section 6.06. Proceedings by Holders. Except to enforce the right to receive payment of
principal (including, if applicable, the Fundamental Change Repurchase Price) or interest when due,
or the right to receive payment or delivery of the consideration due upon conversion, no



33









 




Holder of any Debenture shall have any right by virtue of or by availing of 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:




     (a) such Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as hereinbefore provided;



     (b) Holders of at least 25% in aggregate principal amount of the Debentures then outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder;



     (c) such Holders shall have offered to the Trustee such security or indemnity satisfactory to
it against any loss, liability or expense that may be incurred therein or thereby;



     (d) the Trustee for 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



     (e) no direction that, in the opinion of the Trustee, is inconsistent with such written
request shall have been given to the Trustee by the Holders of a majority in principal amount of
the Debentures outstanding within such 60-day period pursuant to Section 6.09,


it being understood and intended, and being expressly covenanted by the taker and Holder of every
Debenture with every other taker and Holder and the Trustee that no one or more Holders shall have
any right in any manner whatever by virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder, 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 Holders
(except as otherwise provided herein). For the protection and enforcement of this Section 6.06,
each and every Holder 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 Debenture, the
right of any Holder to receive payment or delivery, as the case may be, of (x) the principal
(including the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid
interest on, and (z) the consideration due upon conversion of, such Debenture, on or after the
respective due dates expressed or provided for in such Debenture or in this Indenture, or to
institute suit for the enforcement of any such payment or deliver, as the case may be, on or after
such respective dates against the Company shall not be impaired or affected without the consent of
such Holder.



     Section 6.07. 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



34









 




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 6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph
of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders of the Debentures, by
judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of
any of the Debentures to exercise any right or power accruing upon any Default or Event of Default
shall impair any such right or power, or shall be construed to be a waiver of any such Default or
Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every
power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.



     Section 6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The
Holders of a majority in aggregate principal amount of the Debentures 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 with respect to Debentures; provided, however, that (a) such
direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent with such
direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal liability. The
Holders of a majority in aggregate principal amount of the Debentures at the time outstanding
determined in accordance with Section 8.04 may on behalf of the Holders of all of the Debentures
waive any past Default or Event of Default hereunder and its consequences, except (i) a default in
the payment of accrued and unpaid interest, if any, on, or the principal (including any Fundamental
Change Repurchase Price) of, the Debentures when due that has not been cured pursuant to the
provisions of Section 6.01, (ii) a failure by the Company to deliver the consideration due upon
conversion of the Debentures or (iii) a default in respect of a covenant or provision hereof which
under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding
Debenture affected. Upon any such waiver the Company, the Trustee and the Holders of the
Debentures shall be restored to their former positions and rights hereunder; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by
this Section 6.09, said Default or Event of Default shall for all purposes of the Debentures and
this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.



     Section 6.10. Notice of Defaults. The Trustee shall, within 90 days after the occurrence
and continuance of a Default of which a Responsible Officer has actual knowledge, mail to all
Holders as the names and addresses of such Holders appear upon the Debenture 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 a Default in the



35









 




payment of the principal of (including the Fundamental Change Repurchase Price, if
applicable), or accrued and unpaid interest on, any of the Debentures or a Default in the payment
or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding
such notice if and so long as a committee of Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders.




     Section 6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Debenture by its 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
6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Debentures at the time outstanding determined in accordance with Section
8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or accrued and unpaid interest, if any, on any Debenture (including, but not limited to, the
Fundamental Change Repurchase Price with respect to the Debentures being repurchased as provided in
this Indenture) on or after the due date expressed or provided for in such Debenture or to any suit
for the enforcement of the right to convert any Debenture in accordance with the provisions of
Article 14.



ARTICLE 7

Concerning the Trustee




     Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence
of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge and after
the curing or waiver of all Events of Default that 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, of which a Responsible Officer of the Trustee has actual knowledge, that 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 such person’s own affairs; provided
that if an Event of Default occurs and is continuing of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or direction.



     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:



36









 





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




     (i) the duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture, 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 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 that 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 any 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 it shall be proved that 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 direction of the Holders of not less than a majority in
principal amount of the Debentures 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;



     (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;



     (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-Debenture Registrar with respect to
the Debentures;



     (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, unless such
Responsible Officer of the Trustee had actual knowledge of such event;



     (g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee
be liable for the selection of investments or for investment losses incurred thereon or for



37









 




losses incurred as a result of the liquidation of any such investment prior to its maturity
date or the failure of the party directing such investments prior to its maturity date or the
failure of the party directing such investment to provide timely written investment direction, and
the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the
absence of such written investment direction from the Company; and




     (h) in the event that the Trustee is also acting as Custodian, Debenture Registrar, Paying
Agent, Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and
protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such
Custodian, Debenture Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent and transfer
agent.



     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.



     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 fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
bond, Debenture, coupon or other paper or document believed by it in good faith to be genuine and
to have been signed or presented by the proper party or parties;



     (b) any request, 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 Board Resolution 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 and require an opinion of counsel and any advice of
such counsel 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;



     (d) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, 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
expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;



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



38









 





     (f) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
and



     (g) the right of the Trustee to perform any discretionary act in this Indenture shall not be
construed as a duty, and the trustee shall not be answerable for other than its negligence or
willful misconduct in its performance of such act.



     In no event shall the Trustee be liable for any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action other than any such loss or
damage caused by the Trustee’s willful misconduct or negligence. The Trustee shall not be charged
with knowledge of any Default or Event of Default with respect to the Debentures, unless either (1)
a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the Trustee by the
Company or by any Holder of the Debentures. Absent such actual knowledge or receipt of such
notice, the Trustee may conclusively assume that there is no Default or Event of Default.



     Section 7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Debentures (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
Debentures. The Trustee shall not be accountable for the use or application by the Company of any
Debentures or the proceeds of any Debentures authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture.



     Section 7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Debenture
Registrar May Own Debentures. The Trustee, any Paying Agent, any Conversion Agent, Bid
Solicitation Agent or Debenture Registrar, in its individual or any other capacity, may become the
owner or pledgee of Debentures with the same rights it would have if it were not the Trustee,
Paying Agent, Conversion Agent, Bid Solicitation Agent or Debenture Registrar.



     Section 7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares
of Common Stock 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 and shares of Common Stock 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 or shares of Common Stock
received by it hereunder except as may be agreed 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, 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 in
writing between the Trustee and the Company, and the Company will pay 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



39









 




Indenture in any capacity thereunder (including the reasonable compensation and the expenses
and disbursements of its agents and counsel and of all Persons not regularly in its employ) except
any such expense, disbursement or advance as shall have been caused by its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify the Trustee in any capacity under
this Indenture and any other document or transaction entered into in connection herewith and its
directors, officers, employees, agents and any authenticating agent for, and to hold them harmless
against, any loss, claim, damage, liability or expense incurred without negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors, agents or employees,
or such 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 of liability in the premises,
including costs of investigation, counsel fees and expenses, damages judgments and amounts paid in
settlement. 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 to which the Debentures are hereby made subordinate on all money or property held
or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust
herewith for the benefit of the Holders of particular Debentures. The Trustee’s right to receive
payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability
or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal or
the Trustee. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend
to the officers, directors, agents and employees of the Trustee.




     Without prejudice to any other rights available to the Trustee under applicable law, 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(i) or Section 6.01(j) 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 negligence, willful misconduct, recklessness and bad faith on
the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of negligence,
willful misconduct, recklessness and bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the
faith thereof.



     Section 7.08. 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. 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, the combined capital and surplus of



40









 




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, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.




     Section 7.09. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof to the
Holders at their addresses as they shall appear on the Debenture Register. 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 within 60 days after the mailing
of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’
notice to the Company and the Holders, petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Holder who has been a bona fide holder of a Debenture or
Debentures for at least six months may, subject to the provisions of Section 6.11, 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 cease to be eligible in accordance with the provisions of Section
7.08 and shall fail to resign after written request therefor by the Company or by any such
Holder, or




     (ii) 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 control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in either case, the Company may by a Board Resolution 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 6.11, any Holder who has been a bona
fide holder of a Debenture or Debentures for at least six 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. 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 Debentures at the time
outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee and
nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten
days after notice to the Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a)
provided, may petition any court of competent jurisdiction for an appointment of a successor
trustee.



41









 





     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.10.



     Section 7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided
in Section 7.09 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 amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver 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 to which the Debentures are hereby made subordinate on all money
or property held or collected by such trustee as such, except, subject to Section 6.05, for funds
held in trust for the benefit of Holders of particular Debentures, 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 7.10 unless at the
time of such acceptance such successor trustee shall be eligible under the provisions of Section
7.08.



     Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Holders at their addresses as they shall appear on the Debenture Register. If the Company fails to
mail such notice within ten 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 7.11. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of 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 or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be eligible under the provisions of Section 7.08.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Debentures 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 Debentures so
authenticated; and in case at that time any of the Debentures shall not have been authenticated,



42









 




any successor to the Trustee or an authenticating agent appointed by such successor trustee
may authenticate such Debentures either in the name of any predecessor trustee hereunder or in the
name of the successor trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Debentures or in this Indenture provided that the certificate of the
Trustee shall have; provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Debentures in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or consolidation.




     Section 7.12. Trustee’s Application for Instructions from the Company. Any application by
the Trustee for written instructions from the Company (other than with regard to any action
proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Debentures under this Indenture) may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer that the Company has indicated to
the Trustee should receive such application actually receives such application, unless any such
officer shall have consented in writing to any earlier date), unless, prior to taking any such
action (or the effective date in the case of any omission), the Trustee shall have received written
instructions in accordance with this Indenture in response to such application specifying the
action to be taken or omitted.



ARTICLE 8

Concerning the Holders




     Section 8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of the Debentures 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 Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders 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 Holders. Whenever the Company
or the Trustee solicits the taking of any action by the Holders of the Debentures, the Company or
the Trustee may fix, but shall not be required to, in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record date if one is
selected shall be not more than fifteen days prior to the date of commencement of solicitation of
such action.



     Section 8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder 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



43









 




holding of Debentures shall be proved by the Debenture Register or by a certificate of the
Debenture Registrar. The record of any Holders’ 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 authenticating
agent, any Paying Agent, any Conversion Agent and any Debenture Registrar may deem the Person in
whose name a Debenture shall be registered upon the Debenture Register to be, and may treat it as,
the absolute owner of such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any Person other than
the Company or any Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and (subject to Section 2.03) accrued and unpaid interest on such Debenture, for
conversion of such Debenture and for all other purposes; and neither the Company nor the Trustee
nor any Paying Agent nor any Conversion Agent nor any Debenture Registrar shall be affected by any
notice to the contrary. All such payments so made to any Holder for the time being, or upon its
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 Debenture. Notwithstanding anything to
the contrary in this Indenture or the Debentures following an Event of Default, any Holder of a
beneficial interest in a Global Debenture may directly enforce against the Company, without the
consent, solicitation, proxy, authorization or any other action of the Depositary or any other
Person, such Holder’s right to exchange such beneficial interest for a Debenture in certificated
form in accordance with the provisions of this Indenture.



     Section 8.04. Company-Owned Debentures Disregarded. In determining whether the Holders of
the requisite aggregate principal amount of Debentures have concurred in any direction, consent,
waiver or other action under this Indenture, Debentures that are owned by the Company or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company 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 Debentures that a
Responsible Officer knows are so owned shall be so disregarded. Debentures so owned that 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 so act with
respect to such Debentures and that the pledgee is not the Company or a Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company. 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
Debentures, 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 Debentures 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 Debentures specified in



44









 




this Indenture in connection with such action, any Holder of a Debenture that is shown by the
evidence to be included in the Debentures 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 Debenture. Except as
aforesaid, any such action taken by the Holder of any Debenture shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Debenture and of any Debentures
issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective
of whether any notation in regard thereto is made upon such Debenture or any Debenture issued in
exchange or substitution therefor or upon registration of transfer thereof.




ARTICLE 9

Holders’ Meetings




     Section 9.01. Purpose of Meetings. A meeting of Holders 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:



     (a) 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
Holders pursuant to any of the provisions of Article 6;



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



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



     (d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Debentures 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
Holders 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 Holders, 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 such
Debentures at their addresses as they shall appear on the Debenture Register. Such notice shall
also be mailed to the Company. Such notices shall be mailed not less than twenty nor more than
ninety days prior to the date fixed for the meeting.



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



45









 





     Section 9.03. Call of Meetings by Company or Holders. In case at any time the Company,
pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the
Debentures then outstanding, shall have requested the Trustee to call a meeting of Holders, 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 20 days after receipt of
such request, then the Company or such Holders 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 Holders a
Person shall (a) be a Holder of one or more Debentures 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 Debentures 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 Holders 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 Holders,
in regard to proof of the holding of Debentures 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 Holders as provided in Section 9.03,
in which case the Company or the Holders 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 Debentures
represented at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Debentures held or
represented by him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debenture 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 Debentures held by it or instruments in writing as aforesaid duly designating it as the proxy to
vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of
Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Debentures 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 Holders
shall be by written ballot on which shall be subscribed the signatures of the Holders or of their
representatives by proxy and the outstanding principal amount of the Debentures held or represented
by them. The 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



46









 




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 Holders
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 Debentures 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 Holders 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 Holders under
any of the provisions of this Indenture or of the Debentures.



ARTICLE 10

Supplemental Indentures




     Section 10.01. Supplemental Indentures Without Consent of Holders. The Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense,
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) to cure any ambiguity, or correct any omission, defect or inconsistency in this Indenture,
so long as such action will not adversely affect the interests of Holders of the Debentures;
provided that any such supplemental indenture made solely to conform the provisions of this
Indenture to the Offering Memorandum shall be deemed not to adversely affect the interests of
Holders of the Debentures;



     (b) to provide for the assumption by a Successor Company of the obligations of the Company
under this Indenture pursuant to Article 11;



     (c) to add guarantees with respect to the Debentures;



     (d) to secure the Debentures;



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



     (f) to make any change that does not adversely affect the rights of any Holder; or



47









 





     (g) fix a Specified Dollar Amount that shall apply to all future conversions of Debentures and
provide that the Company shall be required to satisfy its Conversion Obligations by paying cash
with respect to such Specified Dollar Amount.



     Upon the written request of the Company and subject to Section 10.05, 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, 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, immunities or liabilities 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 Debentures at the
time outstanding, notwithstanding any of the provisions of Section 10.02.



     Section 10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced
as provided in Article 8) of the Holders of at least a majority in aggregate principal amount of
the Debentures then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender offer or exchange offer
for, Debentures), the Company, when authorized by the resolutions of the Board of Directors and the
Trustee, at the Company’s expense, 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; provided, however, that, without the consent of
each Holder of an outstanding Debenture affected, no such supplemental indenture shall:



     (a) reduce the rate of or extend the stated time for payment of interest on any Debenture;



     (b) reduce the principal of or extend the Maturity Date of any Debenture;



     (c) make any change that impairs or adversely affects the right of a Holder to convert any
Debenture or the Conversion Rate thereof;



     (d) reduce the Redemption Price or Fundamental Change Repurchase Price of any Debenture or
amend or modify in any manner adverse to the Holders the Company’s obligation to make such
payments, whether through an amendment or waiver of provisions in the Indenture (including the
definitions contained therein) or otherwise;



     (e) make any Debenture payable in currency other than that stated in the Debenture;



     (f) change the ranking of the Debentures;



     (g) impair the right of any Holder to receive payment of principal of and interest, including
Additional Interest, if any, on such Holder’s Debentures or to institute suit for the enforcement
of any payment on or with respect to such Holder’s Debenture; or



48









 





     (h) make any change in this Article 10 that requires each Holder’s consent or in the waiver
provisions in Section 6.01 or Section 6.09.



     Upon the written request of the Company, and upon the filing with the Trustee of evidence of
the consent of Holders as aforesaid and subject to Section 10.05, 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, immunities or liabilities 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.



     The consent of the Holders is not necessary under this Section 10.02 to approve the particular
form of any proposed supplemental indenture. It is sufficient if such consent approves the
substance thereof. After any such supplemental indenture becomes effective, the Company shall mail
to the Holders a notice briefly describing such supplemental indenture. However, the failure to
give such notice to all the Holders, or any defect in the notice, will not impair or affect the
validity of the supplemental indenture.



     Section 10.03. Effect of Supplemental Indentures. 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
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 Debentures. Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the
Company’s discretion and expense, bear a notation as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debentures so modified as to
conform, in the opinion of 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 17.10) and delivered in exchange for the Debentures then outstanding, upon
surrender of such Debentures then outstanding.



     Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In
addition to the documents required by Section 17.05, the Trustee shall receive 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 permitted or
authorized by the Indenture.



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ARTICLE 11

Consolidation, Merger, Sale, Conveyance and Lease




     Section 11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 11.02, the Company shall not consolidate with, merge with or into, or sell, convey,
transfer or lease all or substantially all of its properties and assets to another Person, unless:



     (a) the resulting, surviving or transferee Person (the “Successor Company”), if not the
Company, shall be a corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture all of the obligations of the Company
under the Debentures and this Indenture; and



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



     For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of one or more Subsidiaries of the Company to
another Person, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company to another Person.



     Section 11.02. Successor Corporation to Be Substituted. In case of any such consolidation,
merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee, of the due and punctual payment of
the principal of and accrued and unpaid interest on all of the Debentures, the due and punctual
delivery or payment, as the case may be, of any consideration due upon conversion of the Debentures
and the due and punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the first part, except
in the case of a lease of all or substantially all of the Company’s properties and assets. Such
Successor Company thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company any or all of the Debentures issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor
Company 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 Debentures that previously shall have been signed and delivered by
the Officers of the Company to the Trustee for authentication, and any Debentures that such
Successor Company thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Debentures had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer
(but not in the case of a lease), upon compliance with this Article 11 the Person named as the
“Company” in the first paragraph of this



50









 




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, except in
the case of a lease, such Person shall be released from its liabilities as obligor and maker of the
Debentures 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 Debentures thereafter to be
issued as may be appropriate.



     Section 11.03. Opinion of Counsel to Be Given to Trustee. No consolidation, merger, sale,
conveyance, transfer or lease shall be effective unless 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 and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture, complies with the
provisions of this Article 11.



ARTICLE 12

Immunity of Incorporators, Stockholders, Officers and Directors




     Section 12.01. Indenture and Debentures Solely Corporate Obligations. No recourse for the
payment of the principal of or accrued and unpaid interest on any Debenture, nor 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
Debenture, nor 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; 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 Debentures.



ARTICLE 13

Contingent Interest




     Section 13.01. Contingent Interest.



     (a) Contingent interest on the Debentures (“Contingent Interest”) shall accrue and the Company
shall pay such Contingent Interest to the Holders as follows:




     (i) Beginning with the Interest Payment Period commencing November 15, 2020:




     (A) during any Interest Payment Period with respect to which the average
Trading Price for the 10 Trading Days immediately preceding the first



51









 







day of such Interest Payment Period is greater than or equal to the Upside
Trigger, in which case the Contingent Interest payable on each $1,000 principal
amount of the Debentures for such Interest Payment Period shall be equal to 0.625%
per annum of such average Trading Price;




     (B) during any Interest Payment Period with respect to which the average
Trading Price for the 10 Trading Days immediately preceding the first day of such
Interest Payment Period is less than or equal to the Downside Trigger that is
applicable to such Interest Payment Period, in which case the Contingent Interest
payable on each $1,000 principal amount of the Debentures for such Interest Payment
Period shall be equal to 0.25% per annum of such average Trading Price; and




     (ii) at any time Debentures are outstanding, upon the declaration by the Board of
Directors of an extraordinary cash dividend or distribution that in either case is made to
all or substantially all holders of the Common Stock and that the Board of Directors
designates as payable with respect to the Debenture (an “Extraordinary Dividend”), in which
case the Contingent Interest will be payable on the same date as, and in an amount equal to,
the dividend or distribution that a Holder would have received had such Holder converted its
Debentures and the Company had settled such Conversion Obligation immediately prior to the
record date for the payment of the corresponding dividend or distribution to holders of the
Common Stock (calculated as if such Debentures had been converted entirely into shares of
Common Stock). The record date for the payment of such Contingent Interest shall be the
same as the record date for the payment of the corresponding Extraordinary Dividend.



     (b) The Company shall provide prompt written notice to the Bid Solicitation Agent identifying
the three independent nationally recognized securities dealers referred to in the definition of
“Trading Price.” For purposes of this Article 13, if the Bid Solicitation Agent cannot reasonably
obtain at least one bid for $5,000,000 principal amount of Debentures from an independent
nationally recognized securities dealer when determining the Trading Price or, in the reasonable
judgment of the Board of Directors (or a committee thereof) the bid quotations are not indicative
of the secondary market value of the Debentures, then the Trading Price will be determined by the
Board of Directors (or a committee thereof) based on a good faith estimate of the fair value of the
Debentures.



     (c) The Bid Solicitation Agent shall not determine the Trading Price unless requested by the
Company to make such determination. The Company shall have no obligation to make such a request
unless a Holder of Debentures provides the Company with reasonable evidence that the Trading Price
is greater than or equal to the Upside Trigger or is less than or equal to the Downside Trigger, at
which time the Company shall instruct the Bid Solicitation Agent to determine the Trading Price
beginning on the next Trading Day and on each successive Trading Day until the Trading Price is
less than the Upside Trigger or is greater than the Downside Trigger, as applicable. The Bid
Solicitation Agent’s determination of the Trading Price shall be conclusive absent manifest error
and subject to Section 13.01(b).



52









 





     Section 13.02. Trustee’s Responsibilities in Respect of Contingent Interest. The Company
shall determine whether Holders are entitled to receive Contingent Interest, and if it so
determines, shall provide notice to the Trustee and all Holders of record of the Debentures.
Simultaneously with providing such notice, the Company shall publish a notice containing the
information included therein once in a newspaper of general circulation in The City of New York or
publish such information on the Company’s website or through such other public medium as the
Company may use at such time. Notwithstanding any term contained in this Indenture or any other
document to the contrary, the Trustee shall have no responsibilities, duties or obligations for or
with respect to (i) determining whether the Company must pay Contingent Interest or (ii)
determining the amount of Contingent Interest, if any, payable by the Company.



     Section 13.03. Payment of Contingent Interest. Subject to Section 13.01(a)(ii), Contingent
Interest for any Interest Payment Period shall be paid on the applicable Interest Payment Date to
the Holder in whose name any Debenture is registered on the Debenture Register on the corresponding
Regular Record Date. Contingent Interest due under this Article 13 shall be treated for all
purposes of this Indenture like any other interest accruing on the Debenture.



     Section 13.04. Tax Treatment of the Securities. For United Stated federal income tax
purposes, the Company agrees, and by acceptance of a beneficial interest in the Debentures each
Holder and any beneficial owner of the Debentures shall be deemed to have agreed, to (1) treat the
Debentures as debt instruments that are subject to Treasury Regulation section 1.1275-4 or any
successor provision (the “Contingent Payment Regulations”), (2) treat the sum of the amount of any
cash plus the fair market value of any Common Stock received upon conversion of the Debentures as a
contingent payment for purposes of the Contingent Payment Regulations, (3) accrue interest with
respect to the Debentures as original discount for United States federal income tax purposes
according to the “noncontingent bond method” set forth in the Contingent Payment Regulations and
(4) be bound by the Company’s determination of the “comparable yield” and “projected payment
schedule,” each within the meaning of the Contingent Payment Regulations, with respect to the
Debentures. The Company agrees to provide promptly to any Holder of Debentures, upon written
request, the issue price, amount of tax original issue discount, issue date, comparable yield and
projected payment schedule. Any such written request should be sent to Vishay Intertechnology,
Inc. at the following address: 63 Lancaster Avenue, Malvern, Pennsylvania 19355, Attention: Chief
Financial Officer.



ARTICLE 14

Conversion of Debentures




     Section 14.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions
of this Article 14, each Holder of a Debenture shall have the right, at such Holder’s option, to
convert all or any portion (if the portion to be converted is $2,000 principal amount or an
integral multiple of $1,000 thereafter) of such Debenture (i) at any time prior to the close of
business on the Business Day immediately preceding August 15, 2040, but only under the conditions
and during the periods set forth in Section 14.01(b), and (ii) irrespective of the conditions
described in Section 14.01(b), on or after August 15, 2040 and prior to the close of



53









 




business on the third Scheduled Trading Day immediately preceding the Maturity Date, in each
case, at an initial conversion rate of 72.0331 shares of Common Stock (subject to adjustment as
provided in Section 14.04, the “Conversion Rate”) per $1,000 principal amount of Debentures
(subject to the settlement provisions of Section 14.02, the “Conversion Obligation”).




     (b) (i) The Debentures may be surrendered for conversion during the five Business Day period
immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the
Trading Price, as determined following a request by a Holder of Debentures in accordance with this
subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading
Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this
subsection (b)(i) and the definition of Trading Price set forth in this Indenture. The Company
shall provide written notice to the Bid Solicitation Agent of the three independent nationally
recognized securities dealers selected by the Company pursuant to the definition of Trading Price,
along with appropriate contact information for each. The Bid Solicitation Agent shall have no
obligation to determine the Trading Price unless the Company has requested such determination, and
the Company shall have no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price would be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate, at which time the Company shall
instruct the Bid Solicitation Agent to determine the Trading Price beginning on the next Trading
Day and on each successive Trading Day until the Trading Price is greater than or equal to 98% of
the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the
Company does not instruct the Bid Solicitation Agent to determine the Trading Price when obligated
as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to
obtain bids and the Bid Solicitation Agent fails to make such determination, then, in either case,
for the purposes of this Section 14.01(b)(i), the Trading Price shall be deemed to be less than 98%
of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each
Trading Day of such failure. If the Trading Price condition set forth above has been met, the
Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the
Trustee). If, at any time after the Trading Price condition set forth above has been met, the
Trading Price is greater than or equal to 98% of the product of the Last Reported Sale Price of the
Common Stock and the applicable Conversion Rate, the Company shall so notify the Holders of the
Debentures, the Trustee and the Conversion Agent (if other than the Trustee).




     (ii) If the Company elects to:




     (A) issue to all or substantially all holders of its Common Stock any rights,
options or warrants entitling them, for a period of not more than 45 calendar days
after the announcement date of such issuance, to subscribe for or purchase shares
of its Common Stock, at a price per share that is less than the average of the Last
Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the date of
announcement of such issuance; or




     (B) distribute to all or substantially all holders of its Common Stock the
Company’s assets, debt securities or rights to purchase securities of the



54









 







Company, which distribution has a per share value, as reasonably determined by
the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common
Stock on the Trading Day preceding the date of announcement for such distribution,


then, in either case, the Company shall notify all Holders of the Debentures, the Trustee and the
Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the
Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, the
Debentures may be surrendered for conversion at any time until the earlier of (1) the close of
business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or
distribution and (2) the Company’s announcement that such issuance or distribution will not take
place, even if the Debentures are not otherwise convertible at such time.




     (iii) If at any time a transaction or event that constitutes a Fundamental Change or a
Make-Whole Fundamental Change occurs, regardless of whether a Holder has the right to
require the Company to repurchase the Debentures pursuant to Section 15.01, or if the
Company is a party to a consolidation, merger, binding share exchange, or transfer or lease
of all or substantially all of its assets, pursuant to which the Common Stock would be
converted into cash, securities or other assets, the Debentures may be surrendered for
conversion at any time from or after the date that is 30 Scheduled Trading Days prior to the
anticipated effective date of the transaction (or, if later, the Business Day after the
Company gives notice of such transaction) until 30 Trading Days after the actual effective
date of such transaction or, if such transaction also constitutes a Fundamental Change,
until the related Fundamental Change Repurchase Date (or, in each case, if earlier, until
the Company’s announcement that such transaction or event will not take place). The Company
shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) (i)
as promptly as practicable following the date the Company publicly announces such
transaction but in no event less than 30 Scheduled Trading Days prior to the anticipated
effective date of such transaction or (ii) if the Company does not have knowledge of such
transaction at least 30 Scheduled Trading Days prior to the anticipated effective date of
such transaction, within one Business Day of the date upon which the Company receives
notice, or otherwise becomes aware, of such transaction but in no event later than the
actual effective date of such transaction.



     (iv) The Debentures may be surrendered for conversion during any fiscal quarter (and
only during such fiscal quarter) commencing after April 2, 2011, if the Last Reported Sale
Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during
the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately
preceding fiscal quarter is greater than or equal to 130% of the Conversion Price on each
applicable Trading Day. The Conversion Agent, on behalf of the Company, shall determine at
the beginning of each fiscal quarter commencing after April 2, 2011 whether the Debentures
may be surrendered for conversion in accordance with this clause (iv) and shall notify the
Company and the Trustee if the Debentures become convertible in accordance with this clause
(iv).



     (v) If the Company calls any or all of the Debentures for redemption pursuant to
Article 16, then Holders may surrender Debentures that have been so called for



55









 







redemption at any time prior to the close of business on the third Scheduled Trading
Day immediately preceding the Redemption Date, even if the Debentures are not otherwise
convertible at such time, after which time the Holder’s right to convert shall expire,
unless the Company defaults in the payment of the Redemption Price, in which case a Holder
of Debentures may convert its Debentures until the Redemption Price has been paid or duly
provided for.



     Section 14.02. Conversion Procedure; Settlement Upon Conversion.



     (a) Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of
any Debenture, the Company shall pay or deliver, as the case may be, to the converting Holder, in
respect of each $1,000 principal amount of Debentures being converted, cash (“Cash Settlement”),
shares of Common Stock, together with cash, if applicable, in lieu of any fractional share of
Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a
combination of cash and shares of Common Stock, together with cash, if applicable, in lieu of any
fractional share of Common Stock in accordance with subsection (j) of this Section 14.02
(“Combination Settlement”), at its election, as set forth in this Section 14.02.




     (i) All conversions occurring on or after August 15, 2040 or after the Company’s
issuance of a Redemption Notice with respect to the Debentures and prior to the related
Redemption Date shall be settled using the same Settlement Method.




     (ii) Prior to August 15, 2040, except for any conversions that occur after the
Company’s issuance of a Redemption Notice with respect to the Debentures but prior to the
related Redemption Date, the Company shall use the same Settlement Method for all
conversions occurring on the same Conversion Date, but the Company shall not have any
obligation to use the same Settlement Method with respect to conversions that occur on
different Trading Days.




     (iii) If, in respect of any Conversion Date (or the period beginning on, and including,
August 15, 2040 and ending on, and including, the third Scheduled Trading Day immediately
preceding the Maturity Date, as the case may be), the Company elects to deliver a notice
(the “Settlement Notice”) of the relevant Settlement Method in respect of such Conversion
Date (or such period, as the case may be), the Company, through the Trustee, shall deliver
such Settlement Notice to converting Holders no later than the close of business on the
Trading Day immediately following the relevant Conversion Date (or, in the case of any
conversions occurring (x) after the date of issuance of a Redemption Notice with respect to
the Debentures and prior to the related Redemption Date, in such Redemption Notice or (y) on
or after August 15, 2040, no later than August 15, 2040). If the Company does not elect a
Settlement Method prior to the deadline set forth in the immediately preceding sentence, the
Company shall no longer have the right to elect Cash Settlement or Physical Settlement and
the Company shall be deemed to have elected Combination Settlement in respect of its
Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of
Debentures shall be equal to $1,000. Such Settlement Notice shall specify the relevant
Settlement Method and in the case of an election of Combination Settlement, the relevant
Settlement Notice



56









 







shall indicate the Specified Dollar Amount. If the Company delivers a Settlement
Notice electing Combination Settlement in respect of its Conversion Obligation but does not
indicate a Specified Dollar Amount in such Settlement Notice, the Specified Dollar Amount
shall be deemed to be $1,000.




     (iv) The cash, shares of Common Stock or combination of cash and shares of Common Stock
in respect of any conversion of Debentures (the “Settlement Amount”) shall be computed as
follows:




     (A) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Physical Settlement, the Company shall deliver to the converting
Holder a number of shares of Common Stock equal to the product of (1) the aggregate
principal amount of Debentures to be converted, divided by $1,000, and (2) the
Conversion Rate in effect on the Conversion Date;




     (B) if the Company elects to satisfy its Conversion Obligation in respect of
such conversion by Cash Settlement, the Company shall pay to the converting Holder
in respect of each $1,000 principal amount of Debentures being converted cash in an
amount equal to the sum of the Daily Conversion Values for each of the 20
consecutive Trading Days during the related Observation Period; and




     (C) if the Company elects (or is deemed to have elected) to satisfy its
Conversion Obligation in respect of such conversion by Combination Settlement, the
Company shall pay or deliver, as the case may be, in respect of each $1,000
principal amount of Debentures being converted, a Settlement Amount equal to the
sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days
during the related Observation Period.




     (v) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if
applicable) shall be determined by the Company promptly following the last day of the
Observation Period. Promptly after such determination of the Daily Settlement Amounts or
the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of
any fractional share, the Company shall notify the Trustee and the Conversion Agent (if
other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as
the case may be, and the amount of cash payable in lieu of fractional shares of Common
Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no
responsibility for any such determination.



     (b) Subject to Section 14.02(e), before any Holder of a Debenture shall be entitled to convert
a Debenture as set forth above, such Holder shall (i) in the case of a Global Debenture, comply
with the procedures of the Depositary in effect at that time and, if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in Section 14.02(h) and (ii) in the case of a Physical Debenture (1) complete, manually sign
and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of
Conversion (or a facsimile thereof) (a “Notice of Conversion”) at the office of the Conversion
Agent and state in writing therein the principal amount of Debentures to be



57









 




converted and the name or names (with addresses) in which such Holder wishes the certificate
or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion
Obligation to be registered, (2) surrender such Debentures, duly endorsed to the Company or in
blank (and accompanied by appropriate endorsement and transfer documents), at the office of the
Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4)
if required, pay funds equal to interest payable on the next Interest Payment Date to which such
Holder is not entitled as set forth in Section 14.02(h). The Trustee (and if different, the
Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the
Conversion Date for such conversion. No Notice of Conversion with respect to any Debentures may be
surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase
Notice to the Company in respect of such Debentures and not validly withdrawn such Fundamental
Change Repurchase Notice in accordance with Section 15.02.




     If more than one Debenture shall be surrendered for conversion at one time by the same Holder,
the Conversion Obligation with respect to such Debentures shall be computed on the basis of the
aggregate principal amount of the Debentures (or specified portions thereof to the extent permitted
thereby) so surrendered.



     (c) A Debenture shall be deemed to have been converted immediately prior to the close of
business on the date (the “Conversion Date”) that the Holder has complied with the requirements set
forth in subsection (b) above. Except as otherwise provided in Section 14.03(b) or Section 14.07,
the Company shall pay or deliver, as the case may be, the consideration due in respect of the
Conversion Obligation on the third Business Day immediately following the relevant Conversion Date,
if the Company elects Physical Settlement, or on the third Business Day immediately following the
last Trading Day of the Observation Period, in the case of any other Settlement Method. If any
shares of Common Stock are due to converting Holders, the Company shall issue or cause to be
issued, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates or a book-entry transfer through the Depositary for the full number of
shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s
Conversion Obligation.



     (d) In case any Debenture shall be surrendered for partial conversion, the Company shall
execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder
of the Debenture so surrendered a new Debenture or Debentures in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered Debenture, without
payment of any service charge by the converting Holder but, if required by the Company or Trustee,
with payment of a sum sufficient to cover any transfer tax or similar governmental charge required
by law or that may be imposed in connection therewith as a result of the name of the Holder of the
new Debentures issued upon such conversion being different from the name of the Holder of the old
Debentures surrendered for such conversion.



     (e) If a Holder submits a Debenture for conversion, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of any shares of Common Stock upon
conversion, unless the tax is due because the Holder requests such shares to be issued in a name
other than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent
may refuse to deliver the certificates representing the shares of Common Stock being issued in a
name other than the Holder’s name until the Trustee receives a sum



58









 




sufficient to pay any tax that is due by such Holder in accordance with the immediately
preceding sentence.




     (f) Except as provided in Section 14.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Debenture as provided in this Article 14.



     (g) Upon the conversion of an interest in a Global Debenture, the Trustee, or the Custodian at
the direction of the Trustee, shall make a notation on such Global Debenture as to the reduction in
the principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Debentures effected through any Conversion Agent other than the Trustee.



     (h) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest, if any, except as set forth below. The Company’s settlement of the Conversion
Obligation shall be deemed to satisfy in full its obligation to pay the principal amount of the
Debenture and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a
result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of
Debentures into a combination of cash and shares of Common Stock, accrued and unpaid interest will
be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the
foregoing, if Debentures are converted after the close of business on a Regular Record Date,
Holders of such Debentures as of the close of business on such Regular Record Date will receive the
interest payable on such Debentures on the corresponding Interest Payment Date notwithstanding the
conversion. Debentures surrendered for conversion during the period from the close of business on
any Regular Record Date to the open of business on the immediately following Interest Payment Date
must be accompanied by funds equal to the amount of interest payable on the Debentures so
converted; provided that no such payment shall be required (1) if the Company has specified a
Redemption Date that is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date; (2) if the Company has specified a Fundamental Change Repurchase Date that is after a
Regular Record Date and on or prior to the Business Day immediately following the corresponding
Interest Payment Date; or (3) for conversions following the Regular Record Date for the interest
payment due on November 15, 2040.



     (i) The Person in whose name the certificate for any shares of Common Stock delivered upon
conversion is registered shall be treated as a stockholder of record as of the close of business on
the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by
Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company
elects to satisfy the related Conversion Obligation by Combination Settlement), as the case may be.
Upon a conversion of Debentures, such Person shall no longer be a Holder of such Debentures
surrendered for conversion.



     (j) The Company shall not issue any fractional share of Common Stock upon conversion of the
Debentures and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon
conversion based on the Daily VWAP on the relevant Conversion Date (in the case of Physical
Settlement) or based on the Daily VWAP on the last Trading Day of the relevant Observation Period
(in the case of Combination Settlement). For each Debenture



59









 




surrendered for conversion, if the Company has elected Combination Settlement, the full number
of shares that shall be issued upon conversion thereof shall be computed on the basis of the
aggregate Daily Settlement Amounts for the applicable Observation Period and any fractional shares
remaining after such computation shall be paid in cash.




     Section 14.03. Increased Conversion Rate Applicable to Certain Debentures Surrendered in
Connection with Make-Whole Fundamental Changes. (a) If a Make-Whole Fundamental Change occurs and a
Holder elects to convert its Debentures in connection with such Make-Whole Fundamental Change, the
Company shall, under the circumstances described below, increase the Conversion Rate for the
Debentures so surrendered for conversion by a number of additional shares of Common Stock (the
“Additional Shares”), as described below. A conversion of Debentures shall be deemed for these
purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of
Conversion is received by the Conversion Agent from, and including, the Effective Date of the
Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the
related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that
would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof,
the 30th Trading Day immediately following the Effective Date of such Make-Whole Fundamental
Change).



     (b) Upon surrender of Debentures for conversion in connection with a Make-Whole Fundamental
Change pursuant to Section 14.01(b)(iii), the Company shall, at its option, satisfy the related
Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement in
accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole
Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference
Property is composed entirely of cash, for any conversion of Debentures following the Effective
Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based
solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per
$1,000 principal amount of converted Debentures equal to the Conversion Rate (including any
adjustment for Additional Shares), multiplied by such Stock Price. In such event, the Conversion
Obligation shall be paid to Holders in cash on the third Business Day following the Conversion
Date. The Company shall notify the Holders of Debentures of the Effective Date of any Make-Whole
Fundamental Change and issue a press release announcing such Effective Date no later than five
Business Days after such Effective Date.



     (c) The number of Additional Shares, if any, by which the Conversion Rate shall be increased
shall be determined by reference to the table below, based on the date on which the Make-Whole
Fundamental Change occurs or becomes effective (the “Effective Date”) and the price (the “Stock
Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental
Change. If the holders of the Common Stock receive only cash in a Make-Whole Fundamental Change
described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash
amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale
Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading
Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. The Board of
Directors shall make appropriate adjustments to the Stock Price, in its good faith determination,
to account for any adjustment to



60









 




the Conversion Rate that becomes effective, or any event requiring an adjustment to the
Conversion Rate where the Ex-Dividend Date of the event occurs, during such five consecutive
Trading Day period.




     (d) The Stock Prices set forth in the column headings of the table below shall be adjusted as
of any date on which the Conversion Rate of the Debentures is otherwise adjusted. The adjusted
Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such
adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion
Rate as so adjusted. The number of Additional Shares set forth in the table below shall be
adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section
14.04.



     (e) The following table sets forth the number of Additional Shares to be received per $1,000
principal amount of Debentures pursuant to this Section 14.03 for each Stock Price and Effective
Date set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$12.34	 	$13.88	 	$14.00	 	$16.00	 	$18.00	 	$20.00	 	$20.82	 	$25.00	 	$30.00	 	$35.00	 	$40.00	 	$45.00	 	$50.00
	 
	November 9, 2010
	 	 	9.0042	 	 	 	8.5640	 	 	 	8.4468	 	 	 	6.7807	 	 	 	5.5267	 	 	 	4.5575	 	 	 	4.2226	 	 	 	2.9122	 	 	 	1.9116	 	 	 	1.2636	 	 	 	0.8272	 	 	 	0.5269	 	 	 	0.3188	 
	November 15, 2011
	 	 	9.0042	 	 	 	8.4878	 	 	 	8.3704	 	 	 	6.7035	 	 	 	5.4531	 	 	 	4.4889	 	 	 	4.1561	 	 	 	2.8587	 	 	 	1.8723	 	 	 	1.2357	 	 	 	0.8079	 	 	 	0.5137	 	 	 	0.3098	 
	November 15, 2012
	 	 	9.0042	 	 	 	8.3983	 	 	 	8.2806	 	 	 	6.6106	 	 	 	5.3617	 	 	 	4.4020	 	 	 	4.0717	 	 	 	2.7893	 	 	 	1.8213	 	 	 	1.2002	 	 	 	0.7843	 	 	 	0.4988	 	 	 	0.3012	 
	November 15, 2013
	 	 	9.0042	 	 	 	8.2949	 	 	 	8.1763	 	 	 	6.4973	 	 	 	5.2453	 	 	 	4.2877	 	 	 	3.9594	 	 	 	2.6923	 	 	 	1.7470	 	 	 	1.1461	 	 	 	0.7463	 	 	 	0.4728	 	 	 	0.2838	 
	November 15, 2014
	 	 	9.0042	 	 	 	8.1983	 	 	 	8.0785	 	 	 	6.3819	 	 	 	5.1204	 	 	 	4.1603	 	 	 	3.8327	 	 	 	2.5792	 	 	 	1.6599	 	 	 	1.0849	 	 	 	0.7063	 	 	 	0.4487	 	 	 	0.2713	 
	November 15, 2015
	 	 	9.0042	 	 	 	8.1030	 	 	 	7.9810	 	 	 	6.2522	 	 	 	4.9685	 	 	 	3.9963	 	 	 	3.6662	 	 	 	2.4188	 	 	 	1.5284	 	 	 	0.9867	 	 	 	0.6369	 	 	 	0.4017	 	 	 	0.2405	 
	November 15, 2016
	 	 	9.0042	 	 	 	7.9423	 	 	 	7.8172	 	 	 	6.0426	 	 	 	4.7257	 	 	 	3.7357	 	 	 	3.4025	 	 	 	2.1683	 	 	 	1.3277	 	 	 	0.8412	 	 	 	0.5375	 	 	 	0.3366	 	 	 	0.1995	 
	November 15, 2017
	 	 	9.0042	 	 	 	7.7536	 	 	 	7.6240	 	 	 	5.7781	 	 	 	4.4047	 	 	 	3.3802	 	 	 	3.0394	 	 	 	1.8168	 	 	 	1.0500	 	 	 	0.6458	 	 	 	0.4082	 	 	 	0.2544	 	 	 	0.1491	 
	November 15, 2018
	 	 	9.0042	 	 	 	7.5635	 	 	 	7.4278	 	 	 	5.4698	 	 	 	3.9933	 	 	 	2.8974	 	 	 	2.5395	 	 	 	1.3254	 	 	 	0.6819	 	 	 	0.4047	 	 	 	0.2591	 	 	 	0.1653	 	 	 	0.0983	 
	November 15, 2019
	 	 	9.0042	 	 	 	7.4156	 	 	 	7.2730	 	 	 	5.1583	 	 	 	3.4831	 	 	 	2.2188	 	 	 	1.8151	 	 	 	0.6099	 	 	 	0.2193	 	 	 	0.1312	 	 	 	0.0899	 	 	 	0.0596	 	 	 	0.0355	 
	November 15, 2020
	 	 	9.0042	 	 	 	7.3565	 	 	 	7.2118	 	 	 	5.0085	 	 	 	3.0496	 	 	 	1.2564	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	November 15, 2025
	 	 	9.0042	 	 	 	7.3645	 	 	 	7.2209	 	 	 	5.0450	 	 	 	3.0955	 	 	 	1.2671	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	November 15, 2030
	 	 	9.0042	 	 	 	7.1336	 	 	 	6.9843	 	 	 	4.7725	 	 	 	2.8710	 	 	 	1.1538	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	November 15, 2035
	 	 	9.0042	 	 	 	7.0942	 	 	 	6.9095	 	 	 	4.4082	 	 	 	2.5303	 	 	 	0.9492	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	November 15, 2040
	 	 	9.0042	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






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




     (i) if the Stock Price is between two Stock Prices in the table above or the Effective
Date is between two Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional Shares set
forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as
applicable, based on a 365-day year;




     (ii) if the Stock Price is greater than $50.00 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above pursuant
to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and




     (iii) if the Stock Price is less than $12.34 per share (subject to adjustment in the
same manner as the Stock Prices set forth in the column headings of the table above



61









 







pursuant to subsection (d) above), no Additional Shares shall be added to the
Conversion Rate.


Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion exceed 81.0373 per $1,000 principal amount of Debentures, subject to
adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.




     (f) Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant
to Section 14.04 in respect of a Make-Whole Fundamental Change.



     Section 14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company if any of the following events occurs, except that the Company shall
not make any adjustments to the Conversion Rate if Holders of the Debentures participate (other
than in the case of a share split or share combination), at the same time and upon the same terms
as holders of the Common Stock and solely as a result of holding the Debentures, in any of the
transactions described in this Section 14.04, without having to convert their Debentures, as if
they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the
principal amount (divided by $1,000) of Debentures held by such Holder.



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








	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date of
such dividend or distribution, or immediately
prior to the open of business on the effective
date of such share split or share combination, as
applicable;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date or
effective date;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the open of business on such
Ex-Dividend Date or effective date; and
	 
	 	 	 	 
	OS1

	 	=
	 	the number of shares of Common Stock outstanding
immediately after giving effect to such dividend,
distribution, share split or share combination.





Any adjustment made under this Section 14.04(a) shall become effective immediately after the open
of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the
open of business on the effective date for such share split or share combination, as applicable.
If any dividend or distribution of the type described in this Section 14.04(a) is declared but not
so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the






62









 







Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.




     (b) If the Company issues to all or substantially all holders of its Common Stock any rights,
options or warrants entitling them, for a period of not more than 45 calendar days after the
announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a
price per share that is less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based
on the following formula:








	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date for
such issuance;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the open of business on such
Ex-Dividend Date;
	 
	 	 	 	 
	X

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

	 	=
	 	the number of shares of Common Stock equal to the
aggregate price payable to exercise such rights,
options or warrants, divided by the average of the
Last Reported Sale Prices of the Common Stock over
the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately
preceding the date of announcement of the issuance
of such rights, options or warrants.





Any increase made under this Section 14.04(b) shall be made successively whenever any such rights,
options or warrants are issued and shall become effective immediately after the open of business on
the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not
delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be
decreased to the Conversion Rate that would then be in effect had the increase with respect to the
issuance of such rights, options or warrants been made on the basis of delivery of only the number
of shares of Common Stock actually delivered. If such rights, options or warrants are not so
issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect
if such Ex-Dividend Date for such issuance had not occurred.




     For purposes of this Section 14.04(b), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive



63









 




Trading Day period ending on, and including, the Trading Day immediately preceding the date of
announcement for such issuance, 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, options 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) If the Company distributes shares of its Capital Stock, evidences of its indebtedness,
other assets or property or rights, options or warrants to acquire its Capital Stock or other
securities, to all or substantially all holders of the Common Stock, excluding (i) dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a) or
Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which an
adjustment was effected pursuant to Section 14.04(d), and (iii) Spin-Offs as to which the
provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital
Stock, evidences of indebtedness, other assets or property or rights, options or warrants to
acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the
Conversion Rate shall be increased based on the following formula:








	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date for
such distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date;
	 
	 	 	 	 
	SP0

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

	 	=
	 	the fair market value (as determined by the Board
of Directors) of the Distributed Property with
respect to each outstanding share of the Common
Stock on the Ex-Dividend Date for such
distribution.





Any increase made under the portion of this Section 14.04(c) above shall become effective
immediately after the open of business on the Ex-Dividend Date for such distribution. If such
distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Debenture
shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the
same terms as holders of the Common Stock receive the Distributed Property, the amount of
Distributed Property such Holder would have received if such Holder owned a number of shares of
Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.
If the






64









 







Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this
Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it
shall in doing so consider the prices in such market over the same period used in computing the
Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.




     With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national
securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following
formula:








	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after the end of the Valuation Period;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest
distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by
reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references
therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10
consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the
“Valuation Period”); and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.





The adjustment to the Conversion Rate under the preceding paragraph shall occur on the last Trading
Day of the Valuation Period; provided that in respect of any conversion during the Valuation
Period, references in the portion of this Section 14.04(c) related to Spin-Offs to 10 Trading Days
shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the
Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the Conversion Rate.




     For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,
options or warrants distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either
initially or under certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares
of the Common Stock; (ii) are not exercisable; and (iii) are also issued in



65









 




respect of future issuances of the Common Stock, shall be deemed not to have been distributed
for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section
14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such
rights, options or 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 14.04(c). If any such
right, option or warrant, including any such existing rights, options or warrants distributed prior
to the date of this Indenture, are subject to events, upon the occurrence of which such rights,
options 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 Ex-Dividend Date with respect to new rights, options or warrants with
such rights (in which case the existing rights, options or warrants shall be deemed to terminate
and expire on such date without exercise by any of the holders thereof). In addition, in the event
of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event
or other event (of the type described in the immediately 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 14.04(c) was made, (1) in the case of any such rights, options
or warrants that shall all have been redeemed or purchased without exercise by any holders thereof,
upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such
rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be
readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the per share redemption or purchase price
received by a holder or holders of Common Stock with respect to such rights, options or warrants
(assuming such holder had retained such rights, options or warrants), made to all holders of Common
Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options 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, options and warrants had not been issued.




     For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), any dividend or
distribution to which this Section 14.04(c) is applicable that also includes one or both of:



     (A) a dividend or distribution of shares of Common Stock to which Section 14.04(a) is
applicable (the “Clause A Distribution”); or



     (B) a dividend or distribution of rights, options or warrants to which Section 14.04(b) is
applicable (the “Clause B Distribution”),


then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B
Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is
applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this
Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C
Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b)
with respect thereto shall then be made, except that, if determined by the Company (I) the
“Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be
the Ex-Dividend Date of the Clause C Distribution and (II) any shares of
Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to
be


66









 






 “outstanding immediately prior to the open of business on such Ex-Dividend Date or effective
date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of
business on such Ex-Dividend Date” within the meaning of Section 14.04(b).




     (d) If any cash dividend or distribution is made to all or substantially all holders of the
Common Stock, the Conversion Rate shall be adjusted based on the following formula:








	 	 	 	 	 

	where,
	 	 	 	 
	 
	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the open of business on the Ex-Dividend Date for
such dividend or distribution;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the open of business on the Ex-Dividend Date for
such dividend or distribution;
	 
	 	 	 	 
	SP0

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

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





Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of
business on the Ex-Dividend Date for such dividend or distribution. If such dividend or
distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the
Board of Directors determines not to make or pay such dividend or distribution, to the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Debenture
shall receive, for each $1,000 principal amount of Debentures, at the same time and upon the same
terms as holders of shares of the Common Stock, the amount of cash that such Holder would have
received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on
the Ex-Dividend Date for such cash dividend or distribution.




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







where,





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	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to
the close of business on the 10th Trading Day
immediately following, and including, the Trading
Day next succeeding the date such tender or
exchange offer expires;
	 
	 	 	 	 
	CR1

	 	=
	 	the Conversion Rate in effect immediately after
the close of business on the 10th Trading Day
immediately following, and including, the Trading
Day next succeeding the date such tender or
exchange offer expires;
	 
	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other
consideration (as determined by the Board of
Directors) paid or payable for shares of Common
Stock purchased in such tender or exchange offer;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding
immediately prior to the date such tender or
exchange offer expires (prior to giving effect to
the purchase of all shares of Common Stock
accepted for purchase or exchange in such tender
or exchange offer);
	 
	 	 	 	 
	OS1

	 	=
	 	the number of shares of Common Stock outstanding
immediately after the date such tender or exchange
offer expires (after giving effect to the purchase
of all shares of Common Stock accepted for
purchase or exchange in such tender or exchange
offer); and
	 
	 	 	 	 
	SP1

	 	=
	 	the average of the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading
Day period commencing on, and including, the
Trading Day next succeeding the date such tender
or exchange offer expires.





The adjustment to the Conversion Rate under this Section 14.04(e) shall occur at the close of
business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that in respect of any
conversion within the 10 Trading Days immediately following, and including, the expiration date of
any tender or exchange offer, references in this Section 14.04(e) with respect to 10 Trading Days
shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date
that such tender or exchange offer expires and the Conversion Date in determining the Conversion
Rate.




          (f) Notwithstanding this Section 14.04 or any other provision of this Indenture or the
Debentures, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder
that has converted its Debentures on or after such Ex-Dividend Date and on or prior to the related
Record Date would be treated as the record holder of the shares of Common Stock as of the related
Conversion Date as described under Section 14.02(i) based on an adjusted Conversion Rate for such
Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section
14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such
converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of
the shares of Common Stock on an unadjusted
basis and participate in the related dividend, distribution or other event giving rise to such
adjustment.




68









 








          (g) Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance
of shares of its Common Stock or any securities convertible into or exchangeable for shares of its
Common Stock or the right to purchase shares of its Common Stock or such convertible or
exchangeable securities.




          (h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this
Section 14.04, and to the extent permitted by applicable law and subject to the applicable rules of
The New York Stock Exchange, the Company from time to time may increase the Conversion Rate by any
amount for a period of at least 20 Business Days if the Board of Directors determines that such
increase would be in the Company’s best interest. In addition, the Company may (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares
(or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant
to either of the preceding two sentences, the Company shall mail to the Holder of each Debenture at
its last address appearing on the Debenture Register a notice of the increase at least 15 days
prior to the date the increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.




          (i) Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not
be adjusted:





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




          (ii) upon the issuance of any shares of Common Stock or options or rights to purchase
those shares pursuant to any present or future employee, director or consultant benefit plan
or program of or assumed by the Company or any of the Company’s Subsidiaries;




          (iii) upon the issuance of any shares of the Common Stock pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not described in clause
(ii) of this subsection and outstanding as of the date the Debentures were first issued;




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




          (v) for accrued and unpaid interest, if any.



          (j) All calculations and other determinations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a share.




          (k) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee (and the Conversion Agent if not the Trustee) an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief



69









 






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 without inquiry 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 each Holder at its last address appearing on the
Debenture Register of this Indenture. Failure to deliver such notice shall not affect the legality
or validity of any such adjustment.



          (l) For purposes of this Section 14.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock 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.




          Section 14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the
Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or
the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the
period for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board
of Directors shall make appropriate adjustments to each to account for any adjustment to the
Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date of the event occurs, at any time during the period when the Last
Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts
are to be calculated.




          Section 14.06. Shares to Be Fully Paid. 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 conversion of the Debentures from time to time as such Debentures are
presented for conversion (assuming that at the time of computation of such number of shares, all
such Debentures would be converted by a single Holder and that Physical Settlement is applicable).




          Section 14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common
Stock.




          (a) In the case of:





          (i) any recapitalization, reclassification or change of the Common Stock (other than
changes resulting from a subdivision or combination),




          (ii) any consolidation, merger or combination involving the Company,




          (iii) any sale, lease or other transfer to a third party of the consolidated assets of
the Company and the Company’s Subsidiaries substantially as an entirety or




          (iv) any statutory share exchange,



70









 




in each case, as a result of which the Common Stock would be converted into, or exchanged for,
stock, other securities, other property or assets (including cash or any combination thereof) (any
such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Debentures shall be changed into a right to
convert such principal amount of Debentures into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) that a holder of
a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger
Event would have owned or been entitled to receive (the “Reference Property”, with each “unit of
Reference Property” meaning the kind and amount of Reference Property that a holder of one share of
Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time
of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for
such change in the right to convert each $1,000 principal amount of Debentures; provided, however,
that at and after the effective time of the Merger Event (A) the Company shall continue to have the
right to determine the form of consideration to be paid or delivered, as the case may be, upon
conversion of Debentures in accordance with Section 14.02 and (B) (I) any amount payable in cash
upon conversion of the Debentures in accordance with Section 14.02 shall continue to be payable in
cash, (II) any shares of Common Stock that the Company would have been required to deliver upon
conversion of the Debentures in accordance with Section 14.02 shall instead be deliverable in the
amount and type of Reference Property that a holder of that number of shares of Common Stock would
have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated
based on the value of a unit of Reference Property.




          If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right
to receive more than a single type of consideration (determined based in part upon any form of
stockholder election), then (i) the Reference Property into which the Debentures will be
convertible shall be deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such an election, and (ii) the unit
of Reference Property for purposes of the immediately preceding paragraph shall refer to the
consideration referred to in clause (i) attributable to one share of Common Stock. If the holders
receive only cash in such Merger Event, then for all conversions that occur after the effective
date of such Merger Event (x) the consideration due upon conversion of each $1,000 principal amount
of Debentures shall be solely cash in an amount equal to the Conversion Rate in effect on the
Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03),
multiplied by the price paid per share of Common Stock in such Merger Event and (y) the Company
shall satisfy the Conversion Obligation by paying cash to converting Holders on the third Business
Day immediately following the Conversion Date. The Company shall notify Holders, the Trustee and
the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable
after such determination is made.




          Such supplemental indenture described in the second immediately preceding paragraph shall
provide for adjustments that shall be as nearly equivalent as is possible to the adjustments
provided for in this Article 14. If, in the case of any Merger Event, the Reference Property
includes shares of stock, securities or other property or assets (including cash or any combination
thereof) of a Person other than the successor or purchasing corporation, as the case may be, in



71









 






such Merger Event, 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 Debentures
as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including
to the extent required by the Board of Directors and practicable the provisions providing for the
purchase rights set forth in Article 15.




          (b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a)
of this Section 14.07, the Company shall promptly file with the Trustee an Officers’ Certificate
briefly stating the reasons therefore, the kind or amount of cash, securities or property or asset
that will comprise the Reference Property after any such Merger Event, any adjustment to be made
with respect thereto and that all conditions precedent have been complied with, and shall promptly
mail notice thereof to all Holders. The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at its address appearing on the Debenture
Register provided for in this Indenture, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental indenture.




          (c) The Company shall not become a party to any Merger Event unless its terms are consistent
with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of
Debentures to convert its Debentures into cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the
effective date of such Merger Event.




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




          Section 14.08. Certain Covenants. (a) The Company covenants that all shares of Common Stock
issued upon conversion of Debentures will be fully paid and non-assessable by the Company and free
from all taxes, liens and charges with respect to the issue thereof.




          (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Debentures 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, to the extent then permitted by the rules and interpretations of the Commission,
secure such registration or approval, as the case may be.




          (c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will list and keep listed,
so long as the Common Stock shall be so listed on such exchange or automated quotation system, any
Common Stock issuable upon conversion of the Debentures.




          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 to determine the Conversion Rate
(or any adjustment thereto) or whether any facts exist that may require any adjustment (including
any increase) 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



72









 






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, property or cash that may at any time be issued or
delivered upon the conversion of any Debenture; 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 Debenture
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article. 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 14.07
relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Debentures after any event referred to in such
Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept (without any independent investigation) 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. Neither the Trustee nor the Conversion
Agent shall be responsible for determining whether any event contemplated by Section 14.01(b) has
occurred that makes the Debentures eligible for conversion or no longer eligible therefor until the
Company has delivered to the Trustee and the Conversion Agent the notices referred to in Section
14.01(b) with respect to the commencement or termination of such conversion rights, on which
notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees to
deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of
any such event or at such other times as shall be provided for in Section 14.01(b).




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




          (a) action by the Company or one of its Subsidiaries that would require an adjustment in the
Conversion Rate pursuant to Section 14.04 or Section 14.11;




          (b) Merger Event; or




          (c) voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of
its Subsidiaries;



then, in each case (unless notice of such event is otherwise required pursuant to another provision
of this Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent
(if other than the Trustee) and to be mailed to each Holder at its address appearing on the
Debenture Register, as promptly as possible but in any event at least 20 days prior to the
applicable date hereinafter specified, a notice stating (i) the date on which a record is
to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a
record is not to be taken, the date as of which the holders of Common Stock of record are to be
determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the
date on which such Merger Event, 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



73









 






deliverable upon
such Merger Event, dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such action by the Company or one of
its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.




     Section 14.11. Stockholder Rights Plans. To the extent that the Company has a rights plan in
effect upon conversion of the Debentures, each share of Common Stock, if any, issued upon such
conversion shall be entitled to receive the appropriate number of rights, if any, and the
certificates representing the Common Stock issued upon such conversion shall bear such legends, if
any, in each case as may be provided by the terms of any such stockholder rights plan, as the same
may be amended from time to time. If at the time of conversion, however, the rights have separated
from the shares of Common Stock in accordance with the provisions of the applicable stockholder
rights plan so that the Holders would not be entitled to receive any rights in respect of Common
Stock, if any, issuable upon conversion of the Debentures, the Conversion Rate shall be adjusted at
the time of separation as if the Company distributed to all or substantially all holders of Common
Stock shares of Capital Stock of the Company, evidences of its indebtedness, other assets or
property or rights, options or warrants to acquire its Capital Stock or other securities as
provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination
or redemption of such rights.



     Section 14.12. Limit on Issuance of Shares of Common Stock Upon Conversion. Notwithstanding
anything to the contrary in this Indenture, if an event occurs that would result in an increase in
the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules
or listing standards of any national or regional securities exchange that are applicable to the
Company, the Company will, at its option, either obtain stockholder approval of any issuance of
Common Stock upon conversion of the Debentures in excess such limitations or deliver cash in lieu
of any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations
based on the Daily VWAP on each Trading Day of the relevant Observation Period in respect of which,
in lieu of delivering shares of Common Stock, the Company delivers cash pursuant to this Section
14.12.



     Section 14.13. Exchange in lieu of conversion.



     (a) When a Holder surrenders Debentures for conversion, the Company may direct the Conversion
Agent to surrender, on or prior to the commencement of the applicable Observation Period, such
Debentures to a financial institution designated by the Company for exchange in lieu of conversion
(a “Designated Institution”). If the Company so elects, then by the close of business on the
second Trading Day after the Conversion Date, the Company shall notify the Holder surrendering
Debentures for conversion that it has directed the Designated Institution to make an exchange in
lieu of conversion. If such Designated Institution determines to accept the Debentures surrendered
for conversion, it shall notify the Conversion Agent whether it shall
deliver, upon exchange, all cash, all shares of Common Stock or a combination of cash and
shares of Common Stock in accordance with the provisions of Section 14.02.



     (b) In order to accept any Debentures surrendered for conversion, the Designated Institution
must agree to deliver, in exchange for such Debentures, all cash, shares of Common Stock or a
combination of cash and share of Common Stock due upon conversion in accordance



74









 




with the provisions
of Section 14.02, at the sole option of the Designated Institution and as is designated by the
Conversion Agent to the Company.




          (c) If the Designated Institution accepts Debentures surrendered for exchange under this
Section 14.13, it shall deliver such cash, shares of Common Stock or a combination of cash and
share of Common Stock in accordance with the provisions of Section 14.02 to the Conversion Agent
and the Conversion Agent shall deliver such cash and/or shares of Common Stock to the Holder,
within the time period specified in Section 14.02(c), which delivery shall be deemed to satisfy
the Company’s Conversion Obligation with respect to such Holder. Any Debentures so exchanged by
such Designated Institution shall remain outstanding for all purposes under this Indenture.




          (d) If the Designated Institution agrees to accept any Debentures for exchange but does not
timely deliver the related consideration to the Conversion Agent, or if the Designated Institution
does not accept such Debentures for exchange, the Company shall convert such Debentures into cash
and/or shares of Common Stock, in accordance with the provisions of Section 14.02.




          (e) For the avoidance of doubt, in no event will the Company’s designation of a financial
institution pursuant to this Section 14.13 require such financial institution to accept any
Debentures for exchange.




          (f) The Company shall not pay any consideration to, or otherwise enter into any agreement
with, the Designated Institution for or with respect to such designation.




ARTICLE 15



Repurchase of Debentures at Option of Holders upon a Fundamental Change 




          Section 15.01. Repurchase at Option of Holders Upon a Fundamental Change. (a) If a
Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option,
to require the Company to repurchase for cash (or, pursuant to the provisions of Section 15.05,
shares of Common Stock, Acquiror Securities, or a combination of cash, shares of Common Stock and
Acquiror Securities) all of such Holder’s Debentures, or any portion thereof in principal amounts
of $2,000 or an integral multiple of $1,000 thereafter, on the date (the “Fundamental Change
Repurchase Date”) specified by the Company that is not less than 20 calendar days or more than 30
calendar days following the date of the Fundamental Change Company Notice at a repurchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to
the Interest Payment Date to which such
Regular Record Date relates, in which case the Company shall instead pay the full amount of
accrued and unpaid interest to Holders of record as of such Regular Record Date, and the
Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Debentures to
be repurchased pursuant to this Article 15.




75









 








          (b) Repurchases of Debentures under this Section 15.01 shall be made, at the option of the
Holder thereof, upon:





          (i) delivery to the Paying Agent by a Holder of a duly completed notice (the
“Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of
Debenture attached hereto as Exhibit A, if the Debentures are Physical Debentures, or in
compliance with the Depositary’s procedures for surrendering interests in Global Debentures,
if the Debentures are Global Debentures, in each case on or before the close of business on
the Business Day immediately preceding the Fundamental Change Repurchase Date; and




          (ii) delivery of the Debentures, if the Debentures are Physical Debentures, to the
Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust Office of the
Paying Agent, or book-entry transfer of the Debentures, if the Debentures are Global
Debentures, in compliance with the procedures of the Depositary, in each case such delivery
being a condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor.



          The Fundamental Change Repurchase Notice in respect of any Debentures to be repurchased shall
state:





          (i) in the case of Physical Debentures, the certificate numbers of the Debentures to be
delivered for repurchase;




          (ii) the portion of the principal amount of Debentures to be repurchased, which must be
$2,000 or an integral multiple of $1,000 thereafter; and




          (iii) that the Debentures are to be repurchased by the Company pursuant to the
applicable provisions of the Debentures and this Indenture;


provided, however, that if the Debentures are Global Debentures, the Fundamental Change Repurchase
Notice must comply with appropriate Depositary procedures.




          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 15.01 shall have the right to
withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.02.




          The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental
Change Repurchase Notice or written notice of withdrawal thereof.




          (c) On or before the 20th Business Day after the occurrence of the effective date of a
Fundamental Change, the Company shall provide to all Holders of Debentures and the Trustee and the
Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the



76









 






“Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of
the repurchase right at the option of the Holders arising as a result thereof. Such notice shall
be by first class mail or, in the case of Global Debentures, in accordance with the applicable
procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish
a notice containing the information set forth in the Fundamental Change Company Notice in a
newspaper of general circulation in The City of New York or publish such information on the
Company’s website or through such other public medium as the Company may use at that time. Each
Fundamental Change Company Notice shall specify:





          (i) the events causing the Fundamental Change;




          (ii) the date of the Fundamental Change;




          (iii) the last date on which a Holder may exercise the repurchase right pursuant to
this Article 15;




          (iv) the Fundamental Change Repurchase Price;




          (v) the Fundamental Change Repurchase Date;




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




          (vii) if applicable, the Conversion Rate and any adjustments to the Conversion Rate;




          (viii) if applicable, that the Debentures with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted only if the Holder
withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this
Indenture;




          (ix) whether the Company shall pay the Fundamental Change Repurchase Price in cash,
            shares of Common Stock, Acquiror Securities, or a combination thereof, specifying the
percentage of each; and




          (x) the procedures that Holders must follow to require the Company to repurchase their
Debentures.



          No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Debentures pursuant to this Section 15.01.




          At the Company’s request, the Trustee shall give such notice in the Company’s name and at the
Company’s expense; provided, however, that, in all cases, the text of such Company Notice shall be
prepared by the Company. Neither the Trustee nor the Paying Agent shall be responsible for
determining if a Fundamental Change has occurred or for delivering a Fundamental Change Company
Notice to Holders.




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          (d) Notwithstanding the foregoing, no Debentures may be repurchased by the Company on any date
at the option of the Holders upon a Fundamental Change if the principal amount of the Debentures
has been accelerated, and such acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by the Company in the payment of
the Fundamental Change Repurchase Price with respect to such Debentures). The Paying Agent will
promptly return to the respective Holders thereof any Physical Debentures held by it during the
acceleration of the Debentures (except in the case of an acceleration resulting from a Default by
the Company in the payment of the Fundamental Change Repurchase Price with respect to such
Debentures), or any instructions for book-entry transfer of the Debentures in compliance with the
procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or
cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.




          Section 15.02. Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change
Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.02
at any time prior to the close of business on the Business Day immediately preceding the
Fundamental Change Repurchase Date, specifying:





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




          (ii) if Physical Debentures have been issued, the certificate number of the Debenture
in respect of which such notice of withdrawal is being submitted, and




          (iii) the principal amount, if any, of such Debenture that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in principal amounts of
$2,000 or an integral multiple of $1,000 thereafter;


provided, however, that if the Debentures are Global Debentures, the notice must comply with
appropriate procedures of the Depositary.




          Section 15.03. Deposit of Fundamental Change Repurchase Price. (a) The Company will deposit
with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or
prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, an amount of
cash and/or shares of Common Stock or Acquiror Securities, as applicable, sufficient to repurchase
all of the Debentures to be repurchased at the appropriate Fundamental Change Repurchase Price.
Subject to receipt of funds and/or Debentures by the Trustee (or other Paying Agent appointed by
the Company), payment for Debentures surrendered
for repurchase (and not withdrawn prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the
Fundamental Change Repurchase Date with respect to such Debenture (provided the Holder has
satisfied the conditions in Section 15.01) and (ii) the time of book-entry transfer or the delivery
of such Debenture to the Trustee (or other Paying Agent appointed by the Company) by the Holder
thereof in the manner required by Section 15.01 by mailing checks and/or delivering



78









 






shares of
Common Stock or Acquiror Securities, as applicable, for the amount payable to the Holders of such
Debentures entitled thereto as they shall appear in the Debenture Register; provided, however, that
payments of cash to the Depositary shall be made by wire transfer of immediately available funds to
the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and
upon written demand by the Company, return to the Company any funds and/or shares of Common Stock
or Acquiror Securities, as applicable, in excess of the Fundamental Change Repurchase Price.




          (b) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the
Trustee (or other Paying Agent appointed by the Company) holds cash, shares of Common Stock,
Acquiror Securities, or a combination thereof sufficient to make payment on all the Debentures or
portions thereof that are to be repurchased on such Fundamental Change Repurchase Date, then (i)
such Debentures will cease to be outstanding, (ii) interest will cease to accrue on such Debentures
(whether or not book-entry transfer of the Debentures has been made or the Debentures have been
delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such
Debentures will terminate (other than the right to receive the Fundamental Change Repurchase
Price).




          (c) Upon surrender of a Debenture that is to be repurchased in part pursuant to Section 15.01,
the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new
Debenture in an authorized denomination equal in principal amount to the unrepurchased portion of
the Debenture surrendered.




          Section 15.04. Covenant to Comply with Applicable Laws Upon Repurchase of Debentures. In
connection with any repurchase offer, the Company will, if required:




          (a) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act;




          (b) file a Schedule TO or any successor or similar schedule; and




          (c) otherwise comply with all federal and state securities laws in connection with any offer
by the Company to repurchase the Debentures;




in each case, so as to permit the rights and obligations under this Article 15 to be exercised in
the time and in the manner specified in this Article 15.




          Section 15.05. Payment of Fundamental Change Repurchase Price in shares of Common Stock or
Acquiror Securities.




          (a) Notwithstanding the foregoing provisions of this Article 15, instead of paying the
Fundamental Change Repurchase Price in cash, the Company may elect (which election shall be
irrevocable) to pay the Fundamental Change Repurchase Price in shares of Common Stock (so long as
such shares are Publicly Traded Securities), securities of the acquiror that are Publicly Traded
Securities (“Acquiror Securities”), or a combination of cash and shares of Common Shares or such
Acquiror Securities, as the case may be, by so stating in the Fundamental Change



79









 






Company Notice;
provided that the Company will pay cash for fractional interests in shares of Common Stock or
Acquiror Securities, as the case may be.




          (b) If the Company makes the election specified in Section 15.05(a), then the number of shares
of Common Stock or Acquiror Securities that a Holder will receive will equal the quotient obtained
by dividing (i) the portion of the Fundamental Change Repurchase Price to be paid in shares of
Common Stock or Acquiror Securities, as applicable, by (ii) 95% of the average of the Last Reported
Sale Prices of the shares of Common Stock or Acquiror Securities, as the case may be, for the five
Trading Day period immediately preceding, and including, the third Trading Day prior to the
Fundamental Change Repurchase Date. However, the Company may not pay the Fundamental Change
Repurchase Price in shares of Common Stock or Acquiror Securities if an Event of Default has
occurred or is continuing. For purposes of determining the existence of potential fractional
interests, all Debentures subject to repurchase by the Company held by a Holder shall be considered
together. Each Holder whose Debentures are repurchased pursuant to this Section 15.05(b) shall
receive the same percentages of cash, shares of Common Stock and Acquiror Securities in payment of
the Fundamental Change Repurchase Price for such Debentures, except with regard to the payment of
cash in lieu of fractional shares of Common Stock or Acquiror Securities.




          (c) Notwithstanding anything to the contrary in this Indenture, if the payment of the
Fundamental Change Repurchase Price in shares of Common Stock would exceed the limitations imposed
by any shareholder approval rules or listing standards of any national or regional securities
exchange that are applicable to the Company, the Company will, at its option, either obtain
stockholder approval of such payment or deliver cash in lieu of any shares of Common Stock
otherwise deliverable in respect of the Fundamental Change Repurchase Price in excess of such
limitations.




          Section 15.06. Purchase by Third Party. Notwithstanding the foregoing provisions of this
Article 15, the Company shall not be required to issue a Fundamental Change Company Notice upon a
Fundamental Change if a third party (i) issues a Fundamental Change Company Notice in the manner,
at the times and otherwise in compliance with the requirements set forth in Section 15.01(c)
applicable to a Fundamental Change Company Notice made by the Company and otherwise complies with
the provisions of this Article 15 as if it were the Company, and (ii) purchases and pays for all
Debentures validly tendered and not withdrawn pursuant to such Fundamental Change Company Notice.




ARTICLE 16

Optional Redemption and Tax Triggering Event Redemption




          Section 16.01. Optional Redemption and Tax Triggering Event Redemption.




          (a) Other than as provided in Section 16.01(b), the Debentures shall not be redeemable by the
Company prior to November 20, 2020. On or after November 20, 2020, and prior to the Maturity Date,
if the Last Reported Sale Price of the Common Stock has been at least 150% of the Conversion Price
then in effect for at least 20 Trading Days during any 30 consecutive Trading Day period prior to
the date on which the Redemption Notice was given, the Company



80









 






may redeem (an “Optional
Redemption”) for cash all or part of the Debentures, upon notice as set forth in Section 16.02, at
the applicable Redemption Price.




          (b) On or prior to November 9, 2011, the Company may redeem (a “Tax Triggering Event
Redemption”) the Debentures in whole or in part for cash if any Tax Triggering Event has occurred,
upon notice as set forth in Section 16.02, at the applicable Redemption Price.




          Section 16.02. Notice of Redemption; Selection of Debentures.




          (a) In case the Company exercises its Optional Redemption right or Tax Triggering Event
Redemption right to redeem all or, as the case may be, any part of the Debentures pursuant to
Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it or, at its
written request received by the Trustee not less than 55 calendar days prior to the Redemption Date
(or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of
and at the expense of the Company, shall mail or cause to be mailed a notice of such redemption (a
“Redemption Notice”) not less than 30 nor more than 60 calendar days prior to the Redemption Date
to each Holder of Debentures so to be redeemed as a whole or in part at its last address as the
same appears on the Debenture Register; provided, however, that if the Company shall give such
notice, it shall also give written notice of the Redemption Date to the Trustee. Neither the
Trustee nor the Paying Agent shall be responsible for reviewing the Redemption Notice or for the
content or accuracy of such notice.




          (b) The Redemption 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. In any case,
failure to give such Redemption Notice by mail or any defect in the Redemption Notice to the Holder
of any Debenture designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Debenture.




          (c) Each Redemption Notice shall specify:





          (i) the Redemption Date (which must be a Business Day);




          (ii) the Redemption Price;




          (iii) that on the Redemption Date, the Redemption Price will become due and payable
upon each such Debenture, and that interest thereon, if any, shall cease to accrue on and
after said date;




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




          (v) that Holders may surrender their Debentures for conversion at any time prior to the
close of business on the third Scheduled Trading Day immediately preceding the Redemption
Date;




          (vi) the procedures a converting Holder must follow to convert its Debentures and the
Settlement Method and Specified Dollar Amount, if applicable;



81









 






          (vii) the Conversion Rate and, if applicable, the number of Additional Shares added to
the Conversion Rate in accordance with Section 14.03;




          (viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Debentures;
and




          (ix) in case any Debenture is to be redeemed in part only, the portion of the principal
amount thereof to be redeemed and on and after the Redemption Date, upon surrender of such
Debenture, a new Debenture in principal amount equal to the unredeemed portion thereof shall
be issued.


A Redemption Notice shall be revocable.




          (d) If fewer than all of the outstanding Debentures are to be redeemed, the Trustee shall
select the Debentures or portions thereof of a Global Debenture or the Debentures in certificated
form to be redeemed (in principal amounts of $2,000 or integral multiples of $1,000 thereafter) by
lot, or on a pro rata basis or by another method as may be requested by the Depositary’s applicable
procedures. If any Debenture selected for partial redemption is submitted for conversion in part
after such selection, the portion of the Debenture submitted for conversion shall be deemed (so far
as may be possible) to be the portion selected for redemption.




          Section 16.03. Payment of Debentures Called for Redemption.




          (a) If any Redemption Notice has been given in respect of the Debentures in accordance with
Section 16.02, the Debentures shall become due and payable on the Redemption Date at the place or
places stated in the Redemption Notice and at the applicable Redemption Price. On presentation and
surrender of the Debentures at the place or places stated in the Redemption Notice, the Debentures
shall be paid and redeemed by the Company at the applicable Redemption Price.




          (b) Prior to the open of business on the Redemption Date, the Company shall deposit with the
Paying Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately available
funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the
Debentures to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent,
payment for the Debentures to be redeemed shall be made promptly after the later of:





          (i) the Redemption Date for such Debentures; and




          (ii) the time of presentation of such Debenture to the Trustee (or other Paying Agent
appointed by the Company) by the Holder thereof in the manner required by this Section
16.03.


The Paying Agent shall, promptly after such payment and upon written demand by the Company, return
to the Company any funds in excess of the Redemption Price.





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          Section 16.04. Restrictions on Redemption. The Company may not redeem any Debentures on any
date if (a) the principal amount of the Debentures has been accelerated in accordance with the
terms of this Indenture, and such acceleration has not been rescinded, on or prior to the
Redemption Date (except in the case of an acceleration resulting from a Default by the Company in
the payment of the Redemption Price with respect to such Debentures) or (b) the Company has not
paid or is not simultaneously paying all accrued and unpaid interest thereon for all periods
between Interest Payment Dates or portions thereof terminating prior to the Redemption Date. The
Company may not exercise its Optional Redemption right with respect to any Debentures until it has
made at least twenty interest payments on the Interest Payment Dates as required by Section
2.03(b), including the interest payment due on November 15, 2020.




          Section 16.05. No Registration Obligation on Redemption. In the event of any redemption of
the Debentures, the Company shall not be required to:




          (a) issue, register the transfer of or exchange any Debenture during the 15 calendar day
period prior to the date on which a Redemption Notice is deemed to have been given to all Holders
of Debentures to be redeemed; or




          (b) register the transfer of or exchange any Debentures so selected for redemption, in whole
or in part, except the unredeemed portion of any Debentures being redeemed in part.




ARTICLE 17

Miscellaneous Provisions




          Section 17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.




          Section 17.02. 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 corporation or other entity that shall at the time be the
lawful sole successor of the Company.




          Section 17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders on
the Company shall be deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee) to Vishay
Intertechnology, Inc., 63 Lancaster Avenue, Malvern, Pennsylvania 19355, Attention: Corporate
General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office letter box addressed to
the Corporate Trust Office.




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          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 Holder shall be mailed to it by first class mail,
postage prepaid, at its address as it appears on the Debenture Register and shall be sufficiently
given to it if so mailed within the time prescribed.




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




          In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice to Holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.




          Section 17.04. Governing Law. THIS INDENTURE AND EACH DEBENTURE, AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH DEBENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF).




          Section 17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel 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, if requested by the
Trustee, furnish to the Trustee an Officers’ Certificate stating that such action is permitted by
the terms of this Indenture.




          Each Officers’ Certificate provided for, by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with this Indenture (other than the Officers’
Certificates provided for in Section 4.08) shall include (a) a statement that the Person making
such certificate is familiar with the requested action and this Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in
such certificate is based; (c) a statement that, in the judgment of such person, he or she has made
such examination or investigation as is necessary to enable him or her to express an informed
judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such Person, such action is permitted by this Indenture.




          Notwithstanding anything to the contrary in this Section 17.05, if any provision in this
Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in
connection with any action to be taken by the Trustee or the Company hereunder, the Trustee
shall be entitled to, or entitled to request, such Opinion of Counsel.




          Section 17.06. Legal Holidays. If any Interest Payment Date (other than an Interest Payment
Date coinciding with the Maturity Date or earlier Fundamental Change Repurchase Date) falls on a
day that is not a Business Day, such Interest Payment Date shall be postponed to



84









 






the next
succeeding Business Day. If the Maturity Date or earlier Fundamental Change Repurchase Date would
fall on a day that is not a Business Day, the required payment of interest, if any, and principal
shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for
the period from and after the Maturity Date or earlier Fundamental Change Repurchase Date to such
next succeeding Business Day.




          Section 17.07. No Security Interest Created. Nothing in this Indenture or in the Debentures,
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.




          Section 17.08. Benefits of Indenture. Nothing in this Indenture or in the Debentures,
expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent,
any Conversion Agent, any Bid Solicitation Agent, any authenticating agent, any Debenture Registrar
and their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.




          Section 17.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.




          Section 17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Debentures in connection with the original issuance thereof and transfers and exchanges
of Debentures hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07,
Section 10.04 and Section 15.03 as fully to all intents and purposes as though the authenticating
agent had been expressly authorized by this Indenture and those Sections to authenticate and
deliver Debentures. For all purposes of this Indenture, the authentication and delivery of
Debentures by the authenticating agent shall be deemed to be authentication and delivery of such
Debentures “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
Debentures 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 7.08.




          Any corporation or other entity into which any authenticating agent may be merged or converted
or with which it may be consolidated, or any corporation or other entity resulting from any merger,
consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be
the successor of the authenticating agent hereunder, if such successor corporation
or other entity is otherwise eligible under this Section, 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 or other entity.




          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



85









 






authenticating
agent by giving written notice of termination to such authenticating agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee may appoint a
successor authenticating agent (which may be the Trustee), shall give written notice of such
appointment to the Company and shall mail notice of such appointment to all Holders as the names
and addresses of such Holders appear on the Debenture Register.




          The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.




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




          If an authenticating agent is appointed pursuant to this Section, the Debentures may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative
certificate of authentication in the following form:




      
                                                 
                  
       ,

as Authenticating Agent, certifies that this is one of the Debentures described

in the within-named Indenture.




By:                                                                       
         

Authorized Officer




          Section 17.11. 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 17.12. Severability. In the event any provision of this Indenture or in the
Debentures shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the
validity, legality or enforceability of the remaining provisions shall not in any way be affected
or impaired.




          Section 17.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE DEBENTURES OR THE
TRANSACTION CONTEMPLATED HEREBY.




          Section 17.14. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use




86









 







reasonable efforts that are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.




          Section 17.15. Calculations. Except as otherwise provided herein, the Company or its agents
shall be responsible for making all calculations called for under this Indenture or the Debentures,
and none of the Trustee, Conversion Agent, Debenture Registrar, Bid Solicitation Agent or Paying
Agent (in each case, if different from the Company) shall have any responsibility for making such
calculations. These calculations include, but are not limited to, determinations of the Last
Reported Sale Prices of the Common Stock, accrued interest payable on the Debentures and the
Conversion Rate of the Debentures. The Company or its agents shall make all these calculations in
good faith and, absent manifest error, their calculations shall be final and binding on Holders of
Debentures. The Company or its agents shall provide a schedule of their calculations to each of
the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to
rely conclusively upon the accuracy of their calculations without independent verification. The
Trustee will forward the Company’s or its agent’s calculations to any Holder of Debentures upon the
request of that Holder at the sole cost and expense of the Company.




87









 





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




	 	 	 	 	 

	 	 	VISHAY INTERTECHNOLOGY, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ Lior E. Yahalomi
	 

	 	 	 	 
	 

	 	 	 	Name:  Lior E. Yahalomi
	 

	 	 	 	Title:   EVP, CFO
















 






	 	 	 	 	 

	 	 	WILMINGTON TRUST COMPANY,
as Trustee
	 
	 	 	 	 
	 

	 	By:	 	/s/ Geoffrey J. Lewis
	 

	 	 	 	 
	 

	 	 	 	Name:  Geoffrey J. Lewis
	 

	 	 	 	Title:   Assistant Vice
President



















 





EXHIBIT A




[FORM OF FACE OF DEBENTURE]

[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]




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



[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]




     [THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:




     (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED
INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT
IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND




     (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THERETO, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT:



 









 






     (A) TO VISHAY INTERTECHNOLOGY, INC. (THE “COMPANY”) OR ANY SUBSIDIARY
THEREOF, OR




     (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE
SECURITIES ACT, OR




     (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, OR




     (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.



     PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) ABOVE, THE COMPANY AND THE
TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER
EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING
MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.]



[INCLUDE THE FOLLOWING LEGEND IN ALL SECURITIES]



FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”), THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE OF THIS
SECURITY IS $1,000 PER $1,000 OF PRINCIPAL AMOUNT, AND THE ISSUE DATE OF THIS SECURITY IS NOVEMBER
9, 2010. IN ADDITION, THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
CODE, THE COMPARABLE YIELD OF THIS SECURITY IS 8% COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED
AS THE YIELD TO MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).



FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, PURSUANT TO SECTION 13.04 OF THE INDENTURE, THE
COMPANY AGREES, AND


2









 






BY ACCEPTANCE OF A BENEFICIAL INTEREST IN THIS SECURITY, EACH HOLDER AND ANY
BENEFICIAL OWNER OF THIS SECURITY
SHALL BE DEEMED TO HAVE AGREED, TO (1) TREAT THIS SECURITY AS DEBT INSTRUMENTS THAT ARE SUBJECT TO
TREASURY REGULATION SECTION 1.1275-4 OR ANY SUCCESSOR PROVISION (THE “CONTINGENT PAYMENT
REGULATIONS”), (2) TREAT THE SUM OF THE AMOUNT OF ANY CASH PLUS THE FAIR MARKET VALUE OF ANY COMMON
STOCK RECEIVED UPON CONVERSION OF THIS SECURITY AS A CONTINGENT PAYMENT FOR PURPOSES OF THE
CONTINGENT PAYMENT REGULATIONS, (3) ACCRUE INTEREST WITH RESPECT TO THIS SECURITY AS ORIGINAL ISSUE
DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING TO THE “NONCONTINGENT BOND METHOD”
SET FORTH IN THE CONTINGENT PAYMENT REGULATIONS, AND (4) BE BOUND BY THE COMPANY’S DETERMINATION OF
THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE,” EACH WITHIN THE MEANING OF THE CONTINGENT
PAYMENT REGULATIONS, WITH RESPECT TO THE SECURITY.




     THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST,
THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE DISCOUNT, ISSUE DATE, COMPARABLE YIELD AND PROJECTED
PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO VISHAY INTERTECHNOLOGY, INC. AT THE
FOLLOWING ADDRESS: 63 LANCASTER AVENUE, MALVERN, PENNSYLVANIA 19355, ATTENTION: CHIEF FINANCIAL
OFFICER.



3









 





VISHAY INTERTECHNOLOGY, INC.




2.25% Convertible Senior Debentures due 2040



			
	No. 1
	 	Initially $275,000,000





CUSIP No. 928298 AG3




     Vishay Intertechnology, Inc., a corporation duly organized and validly existing under the laws
of the State of Delaware (the “Company,” which term includes any successor corporation or other
entity under the Indenture referred to on the reverse hereof), for value received hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum as set forth in the “Schedule of
Exchanges of Debentures” attached hereto, which amount, taken together with the principal amounts
of all other outstanding Debentures, shall not, unless permitted by the Indenture, exceed
$275,000,000 in aggregate at any time, in accordance with the rules and procedures of the
Depositary, on November 15, 2040, and interest thereon as set forth below.



     This Debenture shall bear interest at the rate of 2.25% per year from November 9, 2010, or
from the most recent date to which interest had been paid or provided for to, but excluding, the
next scheduled Interest Payment Date until November 15, 2040. Interest is payable semi-annually in
arrears on each May 15 and November 15, commencing on May 15, 2011, to Holders of record at the
close of business on the preceding May 1 and November 1 (whether or not such day is a Business
Day), respectively. Contingent Interest will be payable as set forth in Section 13.01(a), and
Additional Interest will be payable as set forth in Section 4.06(d), Section 4.06(e) and Section
6.03, of the Indenture. Any reference to interest on, or in respect of, any Debenture therein
shall be deemed to include (a) Additional Interest if, in such context, Additional Interest is, was
or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03 and
(b) Contingent Interest if, in such context, Contingent Interest is, was or would be payable
pursuant to Section 13.01(a). Any express mention of the payment of Additional Interest or
Contingent Interest in any provision therein shall not be construed as excluding Additional
Interest or Contingent Interest, respectively, in those provisions thereof where such express
mention is not made.



     The Company shall pay the principal of and interest on this Debenture, so long as such
Debenture is a Global Debenture, in immediately available funds to the Depositary or its nominee,
as the case may be, as the registered Holder of such Debenture. As provided in and subject to the
provisions of the Indenture, the Company shall pay the principal of any Debentures (other than
Debentures that are Global Debentures) at the office or agency designated by the Company for that
purpose. The Company has initially designated the Trustee as its Paying Agent and Debenture
Registrar in respect of the Debentures and its agency in Wilmington, Delaware as a place where
Debentures may be presented for payment or for registration of transfer.



     Reference is made to the further provisions of this Debenture set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Debenture the right to



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convert
this Debenture into cash, shares of Common Stock or a combination of cash and shares of Common
Stock, as applicable, on the terms and subject to the limitations set forth in the
Indenture. Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.



     This Debenture, and any claim, controversy or dispute arising under or related to this
Debenture, shall be construed in accordance with and governed by the laws of the State of New York
(without regard to the conflicts of laws provisions thereof).



     In the case of any conflict between this Debenture and the Indenture, the provisions of the
Indenture shall control and govern.



     This Debenture 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.



[Remainder of page intentionally left blank]




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



	 	 	 	 	 
	 	VISHAY INTERTECHNOLOGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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Dated: November 9, 2010




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

WILMINGTON TRUST COMPANY,

as Trustee, certifies that this is one of the Debentures described

in the within-named Indenture.




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






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[FORM OF REVERSE OF DEBENTURE]




VISHAY INTERTECHNOLOGY, INC.



2.25% Convertible Senior Debentures due 2040



     This Debenture is one of a duly authorized issue of Debentures of the Company, designated as
its 2.25% Convertible Senior Debentures due 2040 (the “Debentures”), limited to the aggregate
principal amount of $275,000,000, all issued or to be issued under and pursuant to an Indenture
dated as of November 9, 2040 (the “Indenture”), between the Company and Wilmington Trust Company
(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 Debentures. Additional Debentures
may be issued in an unlimited aggregate principal amount, subject to certain conditions specified
in the Indenture.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and interest on, all Debentures may be declared, by either the
Trustee or Holders of at least 25% in aggregate principal amount of Debentures then outstanding,
and upon said declaration shall become, due and payable, in the manner, with the effect and subject
to the conditions and certain exceptions set forth in the Indenture.



     Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price and the principal amount on the
Maturity Date, as the case may be, to the Holder who surrenders a Debenture to a Paying Agent to
collect such payments in respect of the Debenture.



     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Debentures, and in certain other
circumstances, with the consent of the Holders of not less than a majority in aggregate principal
amount of the Debentures at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures modifying the terms of the Indenture and the Debentures as
described therein. It is also provided in the Indenture that, subject to certain exceptions, the
Holders of a majority in aggregate principal amount of the Debentures at the time outstanding may
on behalf of the Holders of all of the Debentures waive any past Default or Event of Default under
the Indenture and its consequences.



     No reference herein to the Indenture and no provision of this Debenture or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal (including the Fundamental Change Repurchase Price, if applicable) of and accrued and
unpaid interest on this Debenture at the place, at the respective times, at the rate and in the
lawful money herein prescribed.



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     The Debentures are issuable in registered form without coupons in denominations of $2,000
principal amount and integral multiples of $1,000 thereafter. At the office or agency of the
Company referred to on the face hereof, and in the manner and subject to the limitations
provided in the Indenture, Debentures may be exchanged for a like aggregate principal amount
of Debentures of other authorized denominations, without payment of any service charge but, if
required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or
similar tax that may be imposed in connection therewith as a result of the name of the Holder of
the new Debentures issued upon such exchange of Debentures being different from the name of the
Holder of the old Debentures surrendered for such exchange.



     The Debentures shall be redeemable at the Company’s option in accordance with the terms and
conditions specified in the Indenture.



     Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase for cash (or, at the Company’s option, cash, Common
Stock, Acquiror Securities, or a combination thereof as described in Section 15.05) all of such
Holder’s Debentures or any portion thereof (in principal amounts of $2,000 or integral multiples of
$1,000 thereafter) on the Fundamental Change Repurchase Date at a price equal to the Fundamental
Change Repurchase Price.



     Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,
during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the close of business on the third Scheduled Trading Day immediately preceding the
Maturity Date, to convert any Debentures or portion thereof that is $2,000 or an integral multiple
of $1,000 thereafter, into cash, shares of Common Stock or a combination of cash and shares of
Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from
time to time as provided in the Indenture.



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



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ABBREVIATIONS




     The following abbreviations, when used in the inscription of the face of this Debenture, 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 = Uniform Gifts to Minors Act



CUST = Custodian



TEN ENT = as tenants by the entireties



JT TEN = joint tenants with right of survivorship and not as tenants in common




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



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SCHEDULE A




SCHEDULE OF EXCHANGES OF DEBENTURES




VISHAY INTERTECHNOLOGY, INC.



2.25% Convertible Senior Debentures due 2040



     The initial principal amount of this Global Debenture is TWO HUNDRED SEVENTY-FIVE MILLION
DOLLARS ($275,000,000). The following increases or decreases in this Global Debenture have been
made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of	 	Amount of	 	of this Global	 	Signature of
	 	 	decrease in	 	increase in	 	Debenture	 	authorized
	 	 	Principal Amount	 	Principal Amount	 	following such	 	signatory of
	 	 	of this Global	 	of this Global	 	decrease or	 	Trustee or
	Date of Exchange	 	Debenture	 	Debenture	 	increase	 	Custodian
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 
	 	 
	 	 
	 	 





A-8









 





ATTACHMENT 1




[FORM OF NOTICE OF CONVERSION]





			
	To:	 	Wilmington Trust Company

Corporate Capital Market Services

Rodney Square North

1100 N. Market Street

Wilmington, DE 19890-0001





     The undersigned registered owner of this Debenture hereby exercises the option to convert this
Debenture, or the portion hereof (that is $2,000 principal amount or an integral multiple of $1,000
thereafter) below designated, into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, in accordance with the terms of the Indenture referred to in this
Debenture, and directs that any cash payable and any shares of Common Stock issuable and
deliverable upon such conversion, together with any cash for any fractional share, and any
Debentures representing any unconverted principal amount hereof, be issued and delivered to the
registered Holder hereof unless a different name has been indicated below. If any shares of Common
Stock or any portion of this Debenture not converted are to be issued in the name of a Person other
than the undersigned, the undersigned will pay all transfer or similar taxes in accordance with
Section 14.02(d) of the Indenture. Any amount required to be paid to the undersigned on account of
interest accompanies this Debenture.



	 	 	 

	Dated: _____________________

	 	______________________
	 
	 	 
	 

	 	______________________
	 

	 	Signature(s)






___________________________

Signature Guarantee




Signature(s) must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if shares

of Common Stock are to be issued, or




1









 





Debentures are to be delivered, other than

to and in the name of the registered holder.




Fill in for registration of shares if

to be issued, and Debentures 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):

$______,000




NOTICE: The above signature(s) of the Holder(s) hereof must

correspond with the name as written upon the face of the

Debenture in every particular without alteration or

enlargement or any change whatever.




_________________________

Social Security or Other Taxpayer

Identification Number




2









 





ATTACHMENT 2




VISHAY INTERTECHNOLOGY, INC.




[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]




			
	To:	 	Wilmington Trust Company

Corporate Capital Market Services

Rodney Square North

1100 N. Market Street

Wilmington, DE 19890-0001





     The undersigned registered owner of this Debenture hereby acknowledges receipt of a notice
from Vishay Intertechnology, Inc. (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and specifying the Fundamental Change Repurchase Date and requests and
instructs the Company to pay to the registered holder hereof in accordance with the applicable
provisions of the Indenture referred to in this Debenture (1) the entire principal amount of this
Debenture, or the portion thereof (that is $2,000 principal amount or an integral multiple of
$1,000 thereafter) below designated, and (2) if such Fundamental Change Repurchase Date does not
fall during the period after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental
Change Repurchase Date.



     In the case of Physical Debentures, the certificate numbers of the Debentures to be
repurchased are as set forth below:


Dated: _____________________




______________________

Signature(s)




_________________________

Social Security or Other Taxpayer

Identification Number




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




NOTICE: The above signature(s) of the Holder(s) hereof must

correspond with the name as written upon the face of the

Debenture in every particular without alteration or

enlargement or any change whatever.




1









 





ATTACHMENT 3




[FORM OF ASSIGNMENT AND TRANSFER]



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



In connection with any transfer of the within Debenture occurring prior to the Resale Restriction
Termination Date, as defined in the Indenture governing such Debenture, the undersigned confirms
that such Debenture is being transferred:




o To Vishay Intertechnology, Inc. or a subsidiary thereof; or



o Pursuant to a registration statement that has become or been declared effective under the
Securities Act of 1933, as amended; or



o Pursuant to and 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 any
other available exemption from the registration requirements of the Securities Act of 1933, as
amended.



2









 




Dated: ________________________



__________________________________




__________________________________

Signature(s)




__________________________________

Signature Guarantee




Signature(s) must be guaranteed by an

eligible Guarantor Institution (banks, stock

brokers, savings and loan associations and

credit unions) with membership in an approved

signature guarantee medallion program pursuant

to Securities and Exchange Commission

Rule 17Ad-15 if Debentures are to be delivered, other

than to and in the name of the registered holder.



NOTICE: The signature on the assignment must correspond with the name as written upon the face of
the Debenture in every particular without alteration or enlargement or any change whatever.





3