EXHIBIT 4.12


 












 


MICRON TECHNOLOGY, INC.,


 


ISSUER


 


TO


 


WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION


 


TRUSTEE


 












 


INDENTURE


 


Dated as of February 4, 2003


 












 


2.50% CONVERTIBLE SUBORDINATED NOTES DUE FEBRUARY 1,
2010


 












 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS AND OTHER PROVISIONS
  OF GENERAL APPLICATION

  
	
   

  
	
  SECTION 1.1 Definitions

  
	
  SECTION 1.2 Compliance Certificates and Opinions

  
	
  SECTION 1.3 Form of Documents Delivered to the Trustee

  
	
  SECTION 1.4 Acts of Holders of Securities

  
	
  SECTION 1.5 Notices, Etc to the Trustee and Company

  
	
  SECTION 1.6 Notice to Holders of Securities; Waiver

  
	
  SECTION 1.7 Effect of Headings and Table of Contents

  
	
  SECTION 1.8 Successors and Assigns

  
	
  SECTION 1.9 Separability Clause

  
	
  SECTION 1.10 Benefits of Indenture

  
	
  SECTION 1.11 Governing Law

  
	
  SECTION 1.12 Legal Holidays

  
	
  SECTION 1.13 Conflict With Trust Indenture
  Act

  
	
   

  
	
  ARTICLE II SECURITY FORMS

  
	
   

  
	
  SECTION 2.1 Form Generally

  
	
  SECTION 2.2 Form of Security

  
	
   

  
	
  PERIOD

  
	
   

  
	
  SECTION 2.3 Form of Certificate of Authentication

  
	
  SECTION 2.4 Form of Conversion Notice

  
	
  SECTION 2.5 Form of Assignment

  
	
   

  
	
  ARTICLE
  III THE SECURITIES

  
	
   

  
	
  SECTION 3.1 Title and Terms

  
	
  SECTION 3.2 Denominations

  
	
  SECTION 3.3 Execution, Authentication, Delivery and Dating

  
	
  SECTION 3.4 Global Securities; Non-global Securities; Book-entry
  Provisions

  
	
  SECTION 3.5 Registration; Registration of Transfer and Exchange;
  Restrictions on Transfer

  
	
  SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities

  
	
  SECTION 3.7 Payment of Interest; Interest Rights Preserved

  
	
  SECTION 3.8 Persons Deemed Owners

  
	
  SECTION 3.9 Cancellation

  
	
  SECTION 3.10 Computation of Interest

  
	
  SECTION 3.11 CUSIP Numbers

  
	
   

  
	
  ARTICLE IV SATISFACTION AND DISCHARGE

  
	
   

  
	
  SECTION 4.1 Satisfaction and Discharge of Indenture

  



 

















 


	
  SECTION 4.2 Application of Trust Money

  
	
   

  
	
  ARTICLE V REMEDIES

  
	
   

  
	
  SECTION 5.1 Events of Default

  
	
  SECTION 5.2 Acceleration of Maturity; Rescission and Annulment

  
	
  SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
  Trustee

  
	
  SECTION 5.4 Trustee May File Proofs of Claim

  
	
  SECTION 5.5 Trustee May Enforce Claims Without Possession of
  Securities

  
	
  SECTION 5.6 Application of Money Collected

  
	
  SECTION 5.7 Limitation on Suits

  
	
  SECTION 5.8 Unconditional Right of Holders to Receive Principal,
  Premium and Interest and to Convert

  
	
  SECTION 5.9 Restoration of Rights and Remedies

  
	
  SECTION 5.10 Rights and Remedies Cumulative

  
	
  SECTION 5.11 Delay or Omission Not Waiver

  
	
  SECTION 5.12 Control by Holders of
  Securities

  
	
  SECTION 5.13 Waiver of Past Defaults

  
	
  SECTION 5.14 Undertaking for Costs

  
	
  SECTION 5.15 Waiver of Stay, Usury or
  Extension Laws

  
	
   

  
	
  ARTICLE VI THE TRUSTEE

  
	
   

  
	
  SECTION 6.1 Certain Duties and Responsibilities

  
	
  SECTION 6.2 Notice of Defaults

  
	
  SECTION 6.3 Certain Rights of Trustee

  
	
  SECTION 6.4 Not Responsible for Recitals or Issuance of Securities

  
	
  SECTION 6.5 May Hold Securities, Act as Trustee under Other
  Indentures

  
	
  SECTION 6.6 Money Held in Trust

  
	
  SECTION 6.7 Compensation, Reimbursement and Indemnity

  
	
  SECTION 6.8 Corporate Trustee Required; Eligibility

  
	
  SECTION 6.9 Resignation and Removal; Appointment of Successor

  
	
  SECTION 6.10 Acceptance of Appointment by
  Successor

  
	
  SECTION 6.11 Merger, Conversion,
  Consolidation or Succession to Business

  
	
  SECTION 6.12 Authenticating Agents

  
	
  SECTION 6.13 Disqualification; Conflicting
  Interests

  
	
  SECTION 6.14 Preferential Collection of
  Claims Against Company

  
	
   

  
	
  ARTICLE
  VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  
	
   

  
	
  SECTION 7.1 Company May Consolidate, Etc. Only on Certain Terms

  
	
  SECTION 7.2 Successor Substituted

  



 


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  ARTICLE
  VIII SUPPLEMENTAL INDENTURES

  
	
   

  
	
  SECTION 8.1 Supplemental Indentures Without Consent of Holders of
  Securities

  
	
  SECTION 8.2 Supplemental Indentures with Consent of Holders of
  Securities

  
	
  SECTION 8.3 Execution of Supplemental Indentures

  
	
  SECTION 8.4 Effect of Supplemental Indentures

  
	
  SECTION 8.5 Reference in Securities to Supplemental Indentures

  
	
   

  
	
  ARTICLE IX MEETINGS OF HOLDERS OF
  SECURITIES

  
	
   

  
	
  SECTION 9.1 Purposes for Which Meetings May Be Called

  
	
  SECTION 9.2 Call, Notice and Place of Meetings

  
	
  SECTION 9.3 Persons Entitled to Vote at Meetings

  
	
  SECTION 9.4 Quorum; Action

  
	
  SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment
  of Meetings

  
	
  SECTION 9.6 Counting Votes and Recording Action of Meetings

  
	
   

  
	
  ARTICLE X COVENANTS

  
	
   

  
	
  SECTION 10.1 Payment of Principal, Premium
  and Interest

  
	
  SECTION 10.2 Maintenance of Offices or
  Agencies

  
	
  SECTION 10.3 Money for Security Payments to
  Be Held in Trust

  
	
  SECTION 10.4 Existence

  
	
  SECTION 10.5 Maintenance of Properties

  
	
  SECTION 10.6 Payment of Taxes and Other
  Claims

  
	
  SECTION 10.7 Registration and Listing

  
	
  SECTION 10.8 Statement by Officers as to
  Default

  
	
  SECTION 10.9 Delivery of Certain
  Information

  
	
  SECTION 10.10 Registration Rights

  
	
  SECTION 10.11 Waiver of Certain Covenants

  
	
   

  
	
  ARTICLE XI REDEMPTION OF SECURITIES

  
	
   

  
	
  SECTION 11.1 Right of Redemption

  
	
  SECTION 11.2 Applicability of Article

  
	
  SECTION 11.3 Election to Redeem; Notice to
  Trustee

  
	
  SECTION 11.4 Selection by Trustee of
  Securities to Be Redeemed

  
	
  SECTION 11.5 Notice of Redemption

  
	
  SECTION 11.6 Deposit of Redemption Price

  
	
  SECTION 11.7 Securities Payable on
  Redemption Date

  
	
  SECTION 11.8 Conversion Arrangement on Call
  for Redemption

  



 


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  ARTICLE
  XII CONVERSION OF SECURITIES

  
	
   

  
	
  SECTION 12.1 Conversion Privilege and
  Conversion Rate

  
	
  SECTION 12.2 Exercise of Conversion
  Privilege

  
	
  SECTION 12.3 Fractions of Shares

  
	
  SECTION 12.4 Adjustment of Conversion Rate

  
	
  SECTION 12.5 Notice of Adjustments of
  Conversion Rate

  
	
  SECTION 12.6 Notice of Certain Corporate
  Action

  
	
  SECTION 12.7 Company to Reserve Common
  Stock

  
	
  SECTION 12.8 Taxes on Conversions

  
	
  SECTION 12.9 Covenant as to Common Stock

  
	
  SECTION 12.10 Cancellation of Converted
  Securities

  
	
  SECTION 12.11 Provision in Case of
  Consolidation, Merger or Sale of Assets

  
	
  SECTION 12.12 Rights Issued in Respect of
  Common Stock

  
	
  SECTION 12.13 Responsibility of Trustee for
  Conversion Provisions

  
	
   

  
	
  ARTICLE
  XIII SUBORDINATION OF SECURITIES

  
	
   

  
	
  SECTION 13.1 Securities Subordinate to
  Senior Debt

  
	
  SECTION 13.2 Payment Over of Proceeds Upon
  Dissolution, Etc.

  
	
  SECTION 13.3 Prior Payment to Senior Debt
  Upon Acceleration of Securities.

  
	
  SECTION 13.4 No Payment in Certain
  Circumstances.

  
	
  SECTION 13.5 Payment Permitted if No
  Default.

  
	
  SECTION 13.6 Subrogation to Rights of
  Holders of Senior Debt.

  
	
  SECTION 13.7 Provisions Solely to Define
  Relative Rights.

  
	
  SECTION 13.8 Trustee to Effectuate
  Subordination.

  
	
  SECTION 13.9 No Waiver of Subordination
  Provisions.

  
	
  SECTION 13.10 Notice to Trustee.

  
	
  SECTION 13.11 Reliance on Judicial Order or
  Certificate of Liquidating Agent.

  
	
  SECTION 13.12 Trustee Not Fiduciary for
  Holders of Senior Debt.

  
	
  SECTION 13.13 Rights of Trustee as Holder
  of Senior Debt; Preservation of Trustee’s Rights.

  
	
  SECTION 13.14 Article Applicable to Paying
  Agents.

  
	
  SECTION 13.15 Obligations of Company and
  Right to Convert Unconditional.

  
	
  SECTION 13.16 Reliance by Holders of Senior
  Debt on Subordination Provisions.

  
	
  SECTION 13.17 Certain Conversions and
  Repurchases Deemed Payment

  
	
   

  
	
  ARTICLE
  XIV REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A CHANGE IN
  CONTROL

  
	
   

  
	
  SECTION 14.1 Right to Require Repurchase

  
	
  SECTION 14.2 Conditions to the Company’s
  Election to Pay the Repurchase Price in Applicable Stock

  



 


iv

















 


	
  SECTION 14.3 Notices; Method of Exercising
  Repurchase Right, Etc

  
	
  SECTION 14.4 Certain Definitions

  
	
  SECTION 14.5 Consolidation, Merger, etc

  
	
   

  
	
  ARTICLE XV HOLDERS LISTS AND REPORTS BY
  TRUSTEE AND COMPANY; NON-RECOURSE

  
	
   

  
	
  SECTION 15.1 Company to Furnish Trustee
  Names and Addresses of Holders

  
	
  SECTION 15.2 Preservation of Information

  
	
  SECTION 15.3 Reports by Trustee

  
	
  SECTION 15.4 Reports by Company

  
	
   

  
	
  ARTICLE
  XVI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  
	
   

  
	
  SECTION 16.1 Indenture and Securities
  Solely Corporate Obligations

  



 


v

















 


 


Micron
Technology, Inc.


Reconciliation
and Tie Between the Trust Indenture Act of 1939 and Indenture, dated as of
February 4, 2003, between Micron Technology, Inc. and Wells Fargo Bank
Minnesota, National Association, as Trustee.


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  § 310(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.8

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  Not Applicable

  
	
  (a)(5)

  	
   

  	
  6.8

  
	
  (b)

  	
   

  	
  6.8; 6.9; 6.10; 6.13

  
	
  § 311(a)

  	
   

  	
  6.14

  
	
  (b)

  	
   

  	
  6.14

  
	
  § 312(a)

  	
   

  	
  15.1; 15.2(1)

  
	
  (b)

  	
   

  	
  15.2(2)

  
	
  (c)

  	
   

  	
  15.2(3)

  
	
  § 313(a)

  	
   

  	
  15.3(1)

  
	
  (b)

  	
   

  	
  15.3(1)

  
	
  (c)

  	
   

  	
  15.3(1)

  
	
  (d)

  	
   

  	
  15.3(2)

  
	
  § 314(a)

  	
   

  	
  15.4

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
  1.2

  
	
  (c)(2)

  	
   

  	
  1.2

  
	
  (c)(3)

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  1.2

  
	
  § 315(a)

  	
   

  	
  6.2

  
	
  (b)

  	
   

  	
  6.2

  
	
  (c)

  	
   

  	
  6.1

  
	
  (d)

  	
   

  	
  6.1

  
	
  (d)(1)

  	
   

  	
  6.1(1)

  
	
  (d)(2)

  	
   

  	
  6.1(3)

  
	
  (d)(3)

  	
   

  	
  6.1(3)

  
	
  (e)

  	
   

  	
  5.14

  
	
  § 316(a)

  	
   

  	
  5.12; 5.13

  
	
  (a)(1)(A)

  	
   

  	
  5.12

  
	
  (a)(1)(B)

  	
   

  	
  5.13

  
	
  (a)(2)

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
  5.8

  
	
  § 317(a)(1)

  	
   

  	
  5.5

  
	
  (a)(2)

  	
   

  	
  5.5

  
	
  (b)

  	
   

  	
  10.3

  
	
  § 318(a)

  	
   

  	
  1.13

  



 












Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.


 


vi

















 


INDENTURE, dated as of February
4, 2003, between MICRON TECHNOLOGY, INC., INC., a corporation duly organized
and existing under the laws of the State of Delaware, having its principal
office at 8000 South Federal, Way Boise, Idaho 83716 (herein called the
“Company”), and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States, as Trustee
hereunder (herein called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly authorized
the creation and issuance of its 2.50% Convertible Subordinated Notes due
February 1, 2010 (herein called the “Securities”) of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.


 


All things necessary to make
the Securities, when the Securities are executed by the Company and
authenticated and delivered hereunder, the valid obligations of the Company,
and to make this Indenture a valid agreement of the Company, in accordance with
its terms, have been done. Further, all things necessary to duly authorize the
issuance of the Common Stock of the Company issuable upon the conversion of the
Securities, and to duly reserve for issuance the number of shares of Common
Stock issuable upon such conversion, have been done.


 


NOW, THEREFORE, THIS INDENTURE
WITNESSETH:


 


For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:


 


ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.1                     Definitions.


 


For all
purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:


 


(1)           the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as
well as the singular;


 


(2)           all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except as otherwise
herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation;
and


 


1

















 


(3)           the words “herein”, “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.


 


“Act”, when
used with respect to any Holder of a Security, has the meaning specified in
Section 1.4.


 


“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 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.


 


“Agent Member”
means any member of, or participant in, the Depositary.


 


“Applicable
Procedures” means, with respect to any transfer or transaction involving a
Global Security or beneficial interest therein, the rules and procedures of DTC
or any successor Depository, in each case to the extent applicable to such
transaction and as in effect from time to time.


 


“Applicable
Stock” means (i) the Common Stock and (ii) in the event of a merger,
consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, common equity interests, ordinary shares or
American Depositary Shares of such surviving corporation or its direct or
indirect parent corporation.


 


“Authenticating
Agent” means any Person authorized pursuant to Section 6.12 to act on behalf of
the Trustee to authenticate Securities.


 


“Board of
Directors” means either the board of directors of the Company or any duly
authorized committee of that board.


 


“Board
Resolution” means a resolution duly adopted by the Board of Directors, a copy
of which, 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, shall have been delivered to the
Trustee.


 


“Business
Day”, when used with respect to any Place of Payment, Place of Conversion or
any other place, as the case may be, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in such
Place of Payment, Place of Conversion or other place, as the case may be, are
authorized or obligated by law or executive order to close; provided, however,
that a day on which banking institutions in New York, New York or Boise, Idaho
are authorized or obligated by law or executive order to close shall not be a
Business Day for purposes of Section 13.10.


 


2

















 


“Change in
Control” has the meaning specified in Section 14.4(2).


 


“Closing Price
Per Share” means, with respect to the Common Stock, for any day, (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price regular way) on the New York Stock Exchange or, (ii) if the Common Stock
is not listed on the New York Stock Exchange, the last reported sale price
regular way per share or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or (iii) if the Common Stock is not
then listed on a national securities exchange, then the last reported sale
price as quoted by the Nasdaq Stock Market, or (iv) if the Common Stock is not
then listed on a national securities exchange or quoted by the Nasdaq Stock
Market, then the last quoted bid price for the Common Stock in the over the
counter market as reported by the National Quotation Bureau or similar
organization.


 


“Code” has the
meaning specified in Section 2.l.


 


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


 


“Common Stock”
means the common stock, par value $0.10 per share, of the Company authorized at
the date of this instrument as originally executed.  Subject to the provisions of Section 12.11, shares issuable
on conversion or repurchase of Securities shall include only shares of Common
Stock or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however,
that if at any time there shall be more than one such resulting class, the
shares so issuable on conversion of Securities shall include shares of all such
classes, and the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.


 


“common stock”
includes any stock of any class of capital stock which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the issuer thereof and
which is not subject to redemption by the issuer thereof.


 


“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.


 


“Company
Notice” has the meaning specified in Section 14.3.


 


“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by (i) its Chairman of the Board, its Vice Chairman of the
Board, its Chief


 


3

















 


Executive
Officer, its President, an Executive Vice President or a Vice President, and by
(ii) its principal financial officer, Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.


 


“Constituent
Person” has the meaning specified in Section 12.11.


 


“Conversion
Agent” means any Person authorized by the Company to convert Securities in
accordance with Article XII. The Company has initially appointed the Trustee as
its Conversion Agent pursuant to Section 10.2 hereof.


 


“Conversion
Price” shall equal U.S. $1,000 divided by the Conversion Rate (rounded to the
nearest cent).


 


“Conversion
Rate” has the meaning specified in Section 12.1.


 


“Corporate Trust Office” means
the office of the Trustee at which at any particular time the trust created by
this Indenture shall be principally administered (which at the date of this
Indenture is located at MAC N9303-121, Sixth and Marquette, Minneapolis,
Minnesota  55479, Attention: Corporate
Trust Operation (Micron Technology, Inc., 2.50% Convertible Subordinated Notes
due February 1, 2010)).


 


“corporation”
means a corporation, company, association, joint-stock company or business
trust.


 


“Defaulted
Interest” has the meaning specified in Section 3.7.


 


“Depositary”
means, with respect to the Securities (including any Global Securities), a
clearing agency that is registered as such under the Exchange Act and is
designated by the Company to act as Depositary for the Securities (or any
successor securities clearing agency so registered).


 


“Designated
Senior Debt” means the Company’s obligations under any particular Senior Debt
in which the instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the Company is a
party) expressly provides that such Senior Debt shall be “Designated Senior
Debt” for purposes of this Indenture (provided that such instrument, agreement
or other document may place limitations and conditions on the right of such
Senior Debt to exercise the rights of Designated Senior Debt).


 


“Distributed
Assets” has the meaning set forth in Section 12.4(4).


 


“Documents”
has the meaning set forth in Section 6.3(1).


 


“Dollar” or
“U.S. $” means a dollar or other equivalent unit in such coin or currency of
the United States as at the relevant time shall be legal tender for the payment
of public and private debts.


 


“DTC” means
The Depository Trust Company, a New York corporation.


 


4

















 


“Effective
Failure” has the meaning specified in Section 2.2.


 


“Effectiveness
Period” has the meaning specified in Section 2.2.


 


“Electing
Holders” has the meaning given such term in the Registration Rights Agreement.


 


“Event of
Default” has the meaning specified in Section 5.1.


 


“Exchange Act”
means the United States Securities Exchange Act of 1934 (or any successor
statute), as amended from time to time.


 


“Expiration
Time” has the meaning specified in Section 12.4(6).


 


“Global
Security” means a Security that is registered in the Security Register in the
name of a Depositary or a nominee thereof.


 


“Holder” means
the Person in whose name the Security is registered in the Security Register.


 


“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.


 


“Initial
Purchasers” means Goldman, Sachs & Co., Lehman Brothers Inc., Banc of
America Securities LLC and Salomon Smith Barney Inc.


 


“Interest
Payment Date” means the Stated Maturity of an installment of interest on the
Securities.


 


“Issue Date”
means February 4, 2003.


 


“Liquidated
Damages” has the meaning specified in Section 2.2.


 


“Maturity”,
when used with respect to any Security, means the date on which the principal
of such Security becomes due and payable as therein or herein provided, whether
at the Stated Maturity or by declaration of acceleration, call for redemption,
exercise of the repurchase right set forth in Article XIV or otherwise.


 


“Non-electing
Share” has the meaning specified in Section 12.11.


 


“Notice of
Default” has the meaning specified in Section 5.1.


 


“Officers’
Certificate” means a certificate signed by (i) the Chairman of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, the President, an Executive
Vice President, a


 


5

















 


Senior Vice
President or a Vice President and by (ii) the principal financial officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee. One of the Officers signing an
Officers’ Certificate given pursuant to Section 10.8 shall be the principal
executive, financial or accounting officer of the Company.


 


“Opinion of
Counsel” means a written opinion of counsel, who may be counsel for the Company
and who shall be acceptable to the Trustee.


 


“Outstanding”,
when used with respect to the Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:


 


(i)             Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;


 


(ii)          Securities for the
payment or redemption of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities,
provided that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(iii)       Securities which have been
paid pursuant to Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and


 


(iv)      Securities converted into
Common Stock pursuant to Article XII;


 


provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding Securities
are present at a meeting of Holders of Securities for quorum purposes or have
given, made or taken any request, demand, authorization, direction, notice,
consent or waiver or other action hereunder, Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such determination as to the presence of a quorum or upon any such request,
demand, authorization, direction, notice, consent or waiver or other action,
only Securities which a Responsible Officer of the Trustee has been notified in
writing to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor, and the Trustee shall be protected in relying
upon an Officer’s Certificate to such effect.


 


6

















 


“Paying Agent”
means any Person authorized by the Company to pay the principal of or interest
on any Securities on behalf of the Company and, except as otherwise
specifically set forth herein, such term shall include the Company if it shall
act as its own Paying Agent. The Company has initially appointed the Trustee as
its Paying Agent pursuant to Section 10.2 hereof.


 


“Payment
Blockage Notice” has the meaning specified in Section 13.4.


 


“Person” means
any individual, corporation, limited liability company, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency
or political subdivision thereof.


 


“Place of
Conversion” has the meaning specified in Section 3.1.


 


“Place of
Payment” has the meaning specified in Section 3.1.


 


“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.


 


“Purchase
Agreement” means the Purchase Agreement, dated as of January 29, 2003, between
the Company and the Initial Purchasers, as such agreement may be amended from
time to time.


 


“Press Release” means any press release issued by the Company and
disseminated to Reuters Business News Services and Bloomberg News Services.


 


“Previous
Payments” has the meaning specified in Section 13.1.


 


“Qualified
Institutional Buyer” shall mean a “qualified institutional buyer” as defined in
Rule 144A.


 


“Record Date”
means any Regular Record Date or Special Record Date.


 


“Record Date
Period” means the period from the close of business of any Regular Record Date
immediately preceding any Interest Payment Date to the opening of business on
such Interest Payment Date.


 


“Redemption
Date”, when used with respect to any Security to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.


 


“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.


 


7

















 


“Registrable
Securities” has the meaning specified in Section 10.10.


 


“Registration
Default” has the meaning specified in Section 2.2.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of February
4, 2003, between the Company and the Initial Purchasers, as such agreement may
be amended from time to time.


 


“Regular
Record Date” for interest payable in respect of any Security on any Interest
Payment Date means the January 15 or July 15 (whether or not a Business Day),
as the case may be, immediately preceding such Interest Payment Date.


 


“Representative”
means (a) the indenture trustee or other trustee, agent or representative for any
Senior Debt or (b) with respect to any Senior Debt that does not have any such
trustee, agent or other representative, (i) in the case of such Senior Debt
issued pursuant to an agreement providing for voting arrangements as among the
holders or owners of such Senior Debt, any holder or owner of such Senior Debt
acting with the consent of the required persons necessary to bind such holders
or owners of such Senior Debt and (ii) in the case of all other such Senior
Debt, the holder or owner of such Senior Debt.


 


“Repurchase
Date” has the meaning specified in Section 14.1.


 


“Repurchase
Price” has the meaning specified in Section 14.1.


 


“Responsible
Officer”, when used with respect to the Trustee, means any officer within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge and familiarity with the particular subject.


 


“Restricted
Global Security” has the meaning specified in Section 2.1.


 


“Restricted
Securities” means all Securities required pursuant to Section 3.5(3) to bear
any Restricted Securities Legend. Such term includes the Restricted Global
Security.


 


“Restricted
Securities Legend” has the meaning specified in Section 2.2.


 


“Rule 144”
means Rule 144 under the Securities Act (or any successor provision), as it may
be amended from time to time.


 


“Rule 144A”
means Rule 144A under the Securities Act (or any successor provision), as it
may be amended from time to time.


 


“Rule 144A
Information” has the meaning specified in Section 10.9.


 


8

















 


“Securities”
has the meaning ascribed to it in the first paragraph under the caption
“Recitals of the Company.”


 


“Securities
Act” means the United States Securities Act of 1933 (or any successor statute),
as amended from time to time.


 


“Security
Register” and “Security Registrar” have the respective meanings specified in
Section 3.5.


 


“Senior Debt”
means the principal of (and premium, if any) and interest, if any (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization of the Company whether or not such claim for post-petition
interest is allowed in such proceeding) on, rent with respect to, and all fees
and other amounts payable in connection with, the following, whether absolute
or contingent, secured or unsecured, due or to become due, outstanding on the
date of this Indenture or thereafter created, incurred or assumed:
(a) indebtedness of the Company evidenced by any credit or loan agreement,
note, bond, debenture or other written obligation, (b) all obligations of
the Company for money borrowed, (c) all obligations of the Company evidenced
by a note or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, (d) obligations of the
Company (i) as lessee under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting principles,
(ii) as lessee under other leases for facilities, equipment or related
assets, whether or not capitalized, entered into or leased after the date of
this Indenture for financing purposes (as determined in good faith by the
Company) or (iii) under any lease or related document (including a
purchase agreement) that provides that the Company is contractually obligated
to purchase or cause a third party to purchase the leased property and the
obligations of the Company under such lease or related document to purchase or
to cause a third party to purchase such leased property, (e) all
obligations of the Company under interest rate and currency swaps, caps,
floors, collars, hedge agreements, option contracts, forward contracts, or
similar agreements or arrangements, (f) all obligations of the Company
with respect to letters of credit, bankers’ acceptances or similar facilities
(including reimbursement obligations with respect to any of the foregoing),
(g) all obligations of the Company issued or assumed as the deferred
purchase price of property or services (excluding trade accounts payable
arising in the ordinary course of business), (h) all obligations of the
type referred to in clauses (a) through (g) above of another Person
and all dividends of another Person, the payment of which, in either case, the
Company has assumed or guaranteed (or in effect guaranteed through an agreement
to purchase or otherwise (including, without limitation, “take or pay” and
similar arrangements)), or for which the Company is responsible or liable,
directly or indirectly, jointly or severally, as obligor, guarantor or
otherwise, or which is secured by a lien on property of the Company, and
(i) renewals, extensions, modifications, replacements, restatements and
refundings of, or any indebtedness or obligation issued in exchange for, any
such indebtedness or obligation described in clauses (a) through (h) of
this paragraph; provided, however, that Senior Debt shall not
include the (i) Securities, (ii) the Company’s 6.5% Subordinated Promissory
Note due September 2005, or (iii) any such indebtedness or obligation if the
terms of such indebtedness or obligation (or the terms of the instrument under
which, or pursuant to which it is issued) expressly provide that such
indebtedness or obligation is not superior in right of payment to the
Securities.


 


9

















 


“Shelf
Registration Statement” has the meaning specified in Section 2.2.


 


“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by
the Company pursuant to Section 3.7.


 


“Stated
Maturity”, when used with respect to any Security or any installment of
interest thereon, means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of interest is due
and payable.


 


“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the purposes of this
definition, “voting stock” means stock or other similar interests in the
corporation which ordinarily has or have voting power for the election of
directors, or persons performing similar functions, whether at all times or
only so long as no senior class of stock or other interests has or have such
voting power by reason of any contingency.


 


“Successor
Security” of any particular Security means every Security issued after, and
evidencing all or a portion of the same debt as that evidenced by, such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.


 


“Surrender
Certificate” means a certificate substantially in the form set forth in Annex
B.


 


“Trading Day”
means (i) if the Common Stock is listed or admitted for trading on The New York
Stock Exchange or any other national or regional securities exchange, days on
which such national or regional securities exchange is open for business, (ii)
if the Common Stock is quoted on the Nasdaq National Market or any other system
of automated dissemination of quotations of securities prices, days on which
trades may be effected through such system, or (iii) if the Common Stock is not
listed on The New York Stock Exchange or any other national or regional
securities exchange or quoted on the Nasdaq National Market or any other system
of automated dissemination of quotation of securities prices, days on which the
Common Stock is traded regular way in the over-the-counter market and for which
a closing bid and a closing asked price for the Common Stock are available.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, and the rules and
regulations thereunder, as in force at the date as of which this instrument was
executed, provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939,
and the rules and regulations thereunder, as so amended.


 


10

















 


“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean
such successor Trustee.


 


“United
States” means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction (its “possessions” including Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).


 


“Unrestricted
Securities Certificate” means a certificate substantially in the form set forth
in Annex A.


 


SECTION 1.2                     Compliance Certificates
and Opinions.


 


Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.


 


Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (including certificates provided for in Section
10.8) shall include:


 


(1)           a statement that each individual
signing such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;


 


(2)           a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;


 


(3)           a statement that, in the opinion of
such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and


 


(4)           a statement as to whether, in the opinion
of each such individual, such condition or covenant has been complied with.


 


SECTION 1.3                     Form of Documents
Delivered to the Trustee.


 


In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other


 


11

















 


such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.


 


Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which such certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company or any other Person stating that the information
with respect to such factual matters is in the possession of the Company or
such other Person, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


SECTION 1.4                     Acts of Holders of
Securities.


 


(1)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given, made or taken by Holders of Securities may be
embodied in and evidenced by (A) one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent or proxy duly
appointed in writing by such Holders or (B) the record of Holders of Securities
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities duly called and held in
accordance with the provisions of Article IX. Such action shall become effective
when such instrument or instruments or record is delivered to the Trustee and,
where it is hereby expressly required, to the Company. The Trustee shall
promptly deliver to the Company copies of all such instruments and records
delivered to the Trustee. Such instrument or instruments and records (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Holders of Securities signing such instrument or
instruments or so voting at such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 9.6.


 


(2)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.


 


12

















 


(3)           The principal amount and serial
number of any Security held by any Person, and the date of his holding the
same, shall be proved by the Security Register.


 


(4)           The fact and date of execution of any
such instrument or writing and the authority of the Person executing the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section 1.4.


 


(5)           The Company may set any day as the
record date for the purpose of determining the Holders entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted by this
Indenture to be given, made or taken by Holders. Promptly and in any case not
later than ten days after setting a record date, the Company shall notify the
Trustee and the Holders of such record date. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
15.1) prior to such first solicitation or vote, as the case may be. With regard
to any record date, the Holders on such date (or their duly appointed agents or
proxies), and only such Persons, shall be entitled to give, make or take, or
vote on, the relevant action, whether or not such Holders remain Holders after
such record date. Notwithstanding the foregoing, the Company shall not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, any notice, declaration or direction referred to in the next
paragraph.


 


Upon receipt
by the Trustee from any Holder of (i) any notice of default or breach referred
to in Section 5.1(4), if such default or breach has occurred and is continuing
and the Trustee shall not have given such a notice to the Company, (ii) any
declaration of acceleration referred to in Section 5.2, if an Event of
Default has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to in
Section 5.12, if the Trustee shall not have taken the action specified in such
direction, then, with respect to clauses (ii) and (iii), a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders entitled to join in such declaration or direction,
which record date shall be the close of business on the tenth day (or, if such
day is not a Business Day, the first Business Day thereafter) following the day
on which the Trustee receives such declaration or direction, and, with respect
to clause (i), the Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in such notice of default. Promptly
after such receipt by the Trustee of any such declaration or direction referred
to in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable  thereafter, the Trustee shall notify the Company and the Holders of
any such record date so fixed. The Holders on such record date (or their duly
appointed agents or proxies), and only such Persons, shall be entitled to join
in such notice, declaration or direction, whether or not such Holders remain
Holders after such record date; provided that, unless such notice, declaration
or direction shall have become effective by virtue of Holders of the requisite
principal amount of Securities on such record date (or their duly appointed
agents or proxies) having joined therein on or prior to the 90th day after such
record date, such notice, declaration or direction shall automatically and
without any action by any Person be


 


13

















 


canceled and
of no further effect. Nothing in this paragraph shall be construed to prevent a
Holder (or a duly appointed agent or proxy thereof) from giving, before or
after the expiration of such 90-day period, a notice, declaration or direction
contrary to or different from, or, after the expiration of such period,
identical to, the notice, declaration or direction to which such record date
relates, in which event a new record date in respect thereof shall be set
pursuant to this paragraph. In addition, nothing in this paragraph shall be
construed to render ineffective any notice, declaration or direction of the
type referred to in this paragraph given at any time to the Trustee and the
Company by Holders (or their duly appointed agents or proxies) of the requisite
principal amount of Securities on the date such notice, declaration or
direction is so given.


 


(6)           Except as provided in Sections 5.12
and 5.13, any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.


 


(7)           The provisions of this Section 1.4
are subject to the provisions of Section 9.5.


 


SECTION 1.5                     Notices, Etc to the
Trustee and Company.


 


Any request, demand, authorization,
direction, notice, consent, election, waiver or other Act of Holders of
Securities or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:


 


(1)           the
Trustee by any Holder of Securities or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with a Responsible Officer of the Trustee and received at the following
address:  Wells Fargo Bank Minnesota,
National Association, MAC N-9303-110, Minneapolis, MN 55479, Attention:
Corporate Trust Services (Micron Technology, Inc., 2.50% Convertible
Subordinated Notes due February 1, 2010); or


 


(2)           the
Company by the Trustee or by any Holder of Securities shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing,
mailed, first-class postage prepaid, or telecopied and confirmed by mail,
first-class postage prepaid, or delivered by hand or overnight courier,
addressed to the Company at 8000 South Federal Way, Boise, ID 83707 Attention:  Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Company.


 


SECTION 1.6                     Notice to Holders of
Securities; Waiver.


 


Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given to Holders if in writing and mailed, first-class postage
prepaid or delivered by an overnight delivery service, to each Holder of a
Security affected by such event, at the address of such Holder as it appears in
the Security Register,


 


14

















 


not earlier
than the earliest date, if any, and not later than the latest date, if any,
prescribed for the giving of such notice. 
Such notice shall be deemed to have been given when such notice is
mailed.


 


Neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Security shall affect the sufficiency of such notice
with respect to other Holders of Securities. 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 by mail, then such notification to Holders of
Securities as shall be made with the approval of the Trustee, which approval shall
not be unreasonably withheld, shall constitute a sufficient notification to
such Holders for every purpose hereunder.


 


Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders of Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.


 


SECTION 1.7                     Effect of Headings and
Table of Contents.


 


The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.


 


SECTION 1.8                     Successors and Assigns.


 


All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.


 


SECTION 1.9                     Separability Clause.


 


In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 1.10                   Benefits of Indenture.


 


Except as provided in the next sentence, nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors and assigns hereunder and the Holders of
Securities, any benefit or legal or equitable right, remedy or claim under this
Indenture. The provisions of  Article
XIII are intended to be for the benefit of, and shall be enforceable directly
by, the holders of Senior Debt.


 


SECTION 1.11                   Governing Law.


 


THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,


 


15

















 


THE UNITED STATES OF AMERICA.


 


SECTION 1.12                   Legal Holidays.


 


In any case where any Interest Payment Date,
Redemption Date, Repurchase Date or Stated Maturity of any Security or the last
day on which a Holder of a Security has a right to convert his Security shall
not be a Business Day at a Place of Payment or Place of Conversion, as the case
may be, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of, premium, if any, or interest on, or the
payment of the Redemption Price or Repurchase Price (whether the same is
payable in cash or in shares of Applicable Stock in the case of the Repurchase
Price) with respect to, or delivery for conversion of, such Security need not
be made at such Place of Payment or Place of Conversion, as the case may be, on
or by such day, but may be made on or by the next succeeding Business Day at
such Place of Payment or Place of Conversion, as the case may be, with the same
force and effect as if made on the Interest Payment Date, Redemption Date or
Repurchase Date, or at the Stated Maturity or by such last day for conversion,
as the case may be; provided, however, that in the case that
payment is made on such succeeding Business Day, no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repurchase Date, Stated Maturity or last day for conversion,
as the case may be, to such Business Day on which such payment is made.


 


SECTION 1.13                   Conflict With Trust
Indenture Act.


 


If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be. Until
such time as this Indenture shall be qualified under the Trust Indenture Act,
this Indenture, the Company and the Trustee shall be deemed for all purposes
hereof to be subject to and governed by the Trust Indenture Act to the same
extent as would be the case if this Indenture were so qualified on the date
hereof.


 


ARTICLE II

SECURITY FORMS


 


SECTION 2.1                     Form Generally.


 


The Securities
shall be in substantially the form set forth in this Article, with such
appropriate insertions, omissions, substitutions and other  variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, the Internal
Revenue Code of 1986, as amended, and regulations thereunder (the “Code”), or
as may, consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof.  All Securities shall be in fully registered form.


 


16

















 


The Trustee’s
certificates of authentication shall be in substantially the form set forth in
Section 2.3.


 


Conversion
notices shall be in substantially the form set forth in Section 2.4.


 


Repurchase
notices shall be substantially in the form set forth under the heading
“Election of Holder to Require Repurchase” in Section 2.2.


 


The Securities
shall be printed, lithographed, typewritten or engraved or produced by any
combination of these methods or may be produced in any other manner permitted
by the rules of any automated quotation system or securities exchange
(including on steel engraved borders if so required by any securities exchange
upon which the Securities may be listed) on which the Securities may be quoted
or listed, as the case may be, all as determined by the officers executing such
Securities, as evidenced by their execution thereof.


 


Upon their original issuance, Securities
issued as contemplated by the Purchase Agreement to Qualified Institutional
Buyers in reliance on Rule 144A shall be issued in the form of one or more
Global Securities in definitive, fully registered form without interest coupons
and bearing the Restricted Securities Legend. 
Such Global Security shall be registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for
DTC, for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
Such Global Security, together with its Successor Securities that are Global
Securities, are collectively herein called the “Restricted Global Security.”


 


SECTION 2.2                     Form of Security.


 


[FORM OF FACE]


 


[THE FOLLOWING LEGEND
(THE “RESTRICTED SECURITIES LEGEND”)) SHALL APPEAR ON THE FACE OF EACH
RESTRICTED SECURITY:


 


THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON
THE CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE  SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THIS
NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT
OR THE


 


17

















 


ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL
INVESTOR THAT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.


 


THIS
NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS
ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY
CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES
GENERALLY.  THE HOLDER OF THIS NOTE AND
ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH
SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]


 


[THE FOLLOWING LEGEND SHALL APPEAR ON THE
FACE OF EACH GLOBAL SECURITY:


 


THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT
THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.


 


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.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES


 


18

















 


REFERRED TO IN THE INDENTURE, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE 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.]


 


MICRON TECHNOLOGY, INC.


 


2.50% CONVERTIBLE SUBORDINATED NOTE DUE FEBRUARY 1, 2010


 


	
  No.

  	
   

  	
   

  	
  $

  



 


CUSIP NO.
595112 AF 0


 


MICRON TECHNOLOGY, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the “Company”, which term includes any successor Person under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to
                 ,
or registered assigns, the principal sum of
             United
States Dollars
(U.S.$          ) [if this
Security is a Global Security, then insert — (which principal amount
may from time to time be increased or decreased to such other principal amounts
(which, taken together with the principal amounts of all other Outstanding
Securities, shall not exceed U.S. $632,500,000) by adjustments made on the
records of the Trustee hereinafter referred to in accordance with the
Indenture)] on February 1, 2010 and to pay interest thereon, from February 4,
2003, or from the most recent Interest Payment Date (as defined below) to which
interest has been paid or duly provided for, semi-annually in arrears on
February 1 and August 1 in each year (each, an “Interest Payment Date”),
commencing August 1, 2003, at the rate of 2.50% per annum, until the principal
hereof is due, and at the rate of 2.50% per annum on any overdue principal and
premium, if any, and, to the extent permitted by law, on any overdue interest.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more 
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the January 15 or July 15
(whether or not a Business Day), as the case may be, immediately preceding such
Interest Payment Date.  Except as
otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Company, notice whereof shall be given to Holders of Securities
not less than 10 days prior to the Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
automated quotation system or securities exchange on which the Securities may
be quoted or listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. Payments of principal and premium,
if any, shall be made upon the surrender of this Security at the option of the
Holder at the Corporate Trust


 


19

















 


Office of the Trustee in such
lawful monies of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate, by United States Dollar check
drawn on, or wire transfer to, a United States Dollar account (such a transfer
to be made only to a Holder of an aggregate principal amount of Securities in
excess of U.S.$2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date). Payment of interest on this Security may be made by
United States Dollar check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register, or, upon written
application by the Holder to the Security Registrar setting forth wire
instructions not later than the relevant Record Date, by transfer to a United
States Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of Securities in excess of U.S. $2,000,000 and only
if such Holder shall have furnished wire instructions in writing to the Trustee
no later than 15 days prior to the relevant payment date).


 


Except as
specifically provided herein and in the Indenture, the Company shall not be
required to make any payment with respect to any tax, assessment or other
governmental charge imposed by any government or any political subdivision or
taxing authority thereof or therein.


 


Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.


 


Unless the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof or an Authenticating Agent by the manual signature of
one of their respective authorized signatories, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.


 


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


 


	
   

  	
  MICRON
  TECHNOLOGY, INC.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
  Attest:

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  
					



 


20

















 


TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This is one of
the Securities referred to in the within-mentioned Indenture.


 


Dated:


 


 


WELLS
FARGO BANK MINNESOTA, NATIONAL ASSOCIATION


as Trustee


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
				



 


21

















 


[FORM OF REVERSE]


 


This Security is one of a duly
authorized issue of securities of the Company designated as its “2.50%
Convertible Subordinated Notes due February 1, 2010” (herein called the
“Securities”), limited in aggregate principal amount to U.S. $632,500,000,
issued and to be issued under an Indenture, dated as of February 4, 2003
(herein called the “Indenture”), between the Company and Wells Fargo Bank
Minnesota, National Association, as Trustee (herein called the “Trustee”, which
term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered.  As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of any authorized denominations as requested by the Holder
surrendering the same upon surrender of the Security or Securities to be
exchanged, at the Corporate Trust Office of the Trustee.  The Trustee upon such surrender by the
Holder will issue the new Securities in the requested denominations.


 


No sinking
fund is provided for the Securities.


 


The Securities are subject to
redemption at the option of the Company at any time on or after February 6,
2006, in whole or in part, upon not less than 20 nor more than 60 days’ notice
to the Holders prior to the Redemption Date at the Redemption Prices (expressed
as percentages of the principal amount) as set forth below for Securities
redeemed during the following periods described below:


 


	
  PERIOD

  	
   

  	
  REDEMPTION

  PRICE

  	
   

  
	
  Beginning on February 6, 2006 and ending
  January 31, 2007

  	
   

  	
  101.429

  	
  %

  
	
  Beginning on February 1, 2007 and ending
  January 31, 2008

  	
   

  	
  101.071

  	
   

  
	
  Beginning on February 1, 2008 and ending
  January 31, 2009

  	
   

  	
  100.714

  	
   

  
	
  Beginning on February 1, 2009 and ending
  January 31, 2010

  	
   

  	
  100.357

  	
   

  



 


and thereafter
at a Redemption Price equal to 100% of the principal amount, together, in each
case, with accrued interest to, but excluding, the Redemption Date; provided,
however, that interest installments on Securities whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.


 


In the event
of a redemption of the Securities, the Company will not be required (a) to
register the transfer or exchange of Securities for a period of 15 days
immediately preceding the date


 


22

















 


notice is
given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer or exchange of any Security, or
portion thereof, called for redemption.


 


In any case
where the due date for the payment of the principal of, premium, if any,
interest, or Liquidated Damages on any Security or the last day on which a
Holder of a Security has a right to convert his Security shall be, at any Place
of Payment or Place of Conversion as the case may be, a day on which banking
institutions at such Place of Payment or Place of Conversion are authorized or
obligated by law or executive order to close, then payment of principal,
premium, if any, interest, or Liquidated Damages, or delivery for conversion of
such Security need not be made on or by such date at such place but may be made
on or by the next succeeding day at such place which is not a day on which
banking institutions are authorized or obligated by law or executive order to
close, with the same force and effect as if made on the date for such payment
or the date fixed for redemption or repurchase, or by such last day for
conversion, and no interest shall accrue on the amount so payable for the
period after such date.


 


Subject to and
upon compliance with the provisions of the Indenture, the Holder of this
Security is entitled, at his option, at any time on or before the close of
business on the date of Maturity, or in case this Security or a portion hereof
is called for redemption or the Holder hereof has exercised his right to
require the Company to repurchase this Security or such portion hereof, then in
respect of this Security until the Business Day immediately preceding, but
(unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be) not after, the close of business on the
Business Day immediately preceding the Redemption Date or the Repurchase Date,
as the case may be, to convert this Security (or any portion of the principal
amount hereof that is an integral multiple of U.S. $1,000, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof) into fully paid and nonassessable
shares of Common Stock of the Company at an initial Conversion Rate of 84.8320
shares of Common Stock for each U.S. $1,000 principal amount of Securities (or
at the current adjusted Conversion Rate in effect at the date of such
conversion if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Company or in
blank and, in case such surrender shall be made during a Record Date Period,
also accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted (except that no such payment need be made if this Security or portion
thereof has been called for redemption on a Redemption Date, or has been
submitted for repurchase on a Repurchase Date, occurring, in either case,
within the period from the close of business on any Regular Record Date
immediately preceding any Interest Payment Date to the close of business on the
third Business Day following such Interest Payment Date and, as a result, the
right to convert such Security would otherwise terminate in such period if not
exercised), and also the conversion notice hereon duly executed, to the Company
at the Corporate Trust Office of the Trustee, or at such other office or agency
of the Company, subject to any laws or regulations applicable thereto and
subject to the right of the Company to terminate the appointment of any
Conversion Agent (as defined below) as may be designated by it for such purpose
in the Borough of Manhattan, The City of New York, or at such other offices or
agencies as the Company may designate (each a “Conversion Agent”).  The interest that is payable on such
Interest Payment Date


 


23

















 


with respect
to any Security (or portion thereof, if applicable) that is surrendered for
conversion during the Record Date Period shall be paid to the Holder of such
Security as of such Regular Record Date in an amount equal to the interest that
would have been payable on such Security if such Security had been converted as
of the close of business on such Interest Payment Date. Subject to the
provisions of the preceding sentence and, in the case of a conversion after the
close of business on the Regular Record Date next preceding any Interest
Payment Date and on or before the close of business on such Interest Payment
Date, to the right of the Holder of this Security (or any Predecessor Security
of record as of such Regular Record Date) to receive the related installment of
interest to the extent and under the circumstances provided in the Indenture,
no cash payment or adjustment is to be made on conversion for interest accrued
hereon from the Interest Payment Date immediately preceding the day of
conversion, or for dividends on the Common Stock issued on conversion
hereof.  The Company shall thereafter
deliver to the Holder or to the Trustee for delivery to the Holder the fixed
number of shares of Common Stock (together with any cash adjustment, as
provided in the Indenture) into which this Security is convertible and such
delivery will be deemed to satisfy the Company’s obligation to pay the
principal amount of this Security.  No
fractions of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the nearest
1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture.  The
Conversion Rate is subject to adjustment as provided in the Indenture.  In addition, the Indenture provides that in
case of certain consolidations or mergers to which the Company is a party
(other than a consolidation or merger that does not result in any
reclassification, conversion, exchange or cancellation of the Common Stock) or
the conveyance, transfer, sale or lease of all or substantially all of the
property and assets of the Company, the Indenture shall be amended, without
consent of any Holders of Securities, so that this Security, if then
Outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, transfer, sale or lease by a holder of the number of shares of
Common Stock of the Company into which this Security could have been converted
immediately prior to such consolidation, merger, conveyance, transfer, sale or
lease (assuming such holder of Common Stock is not a Constituent Person or an
Affiliate of a Constituent Person, failed to exercise any rights of election
and received per share the kind and amount received per share by a plurality of
Non-electing Shares).  No adjustment in
the Conversion Rate will be made until such adjustment would require an
increase or decrease of at least one percent of such rate, provided that any
adjustment that would otherwise be made will be carried forward and taken into
account in the computation of any subsequent adjustment.


 


If this
Security is a Registrable Security (as defined in this Indenture), then the
Holder of this Security [if this security is a global security, then insert —
(including any Person that has a beneficial interest in this Security)] and the
Common Stock of the Company issuable upon conversion hereof is entitled to the
benefits of a Registration Rights Agreement, dated as of February 4, 2003,
executed by the Company (the “Registration Rights Agreement”).  Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the Holders from time to
time of the Registrable Securities that it will, at its expense, (a) uses its
reasonable efforts to file a shelf registration statement (the “Shelf
Registration Statement”) with the Commission with respect to resales of the
Registrable Securities within 90 days after the Issue Date, (b) use its
reasonable


 


24

















 


efforts to
cause such Shelf  Registration Statement
to be declared effective by the Commission within 180 days after the Issue Date
of the Securities, provided, however, that the Company may, upon
written notice to all the Holders, postpone having the Shelf Registration
Statement declared effective for a reasonable period not to exceed 90 days if
the Company possesses material non-public information, the disclosure of which
would have a material adverse effect on the Company and its Subsidiaries taken
as a whole, and (c) use its reasonable efforts to maintain such Shelf
Registration Statement effective under the Securities Act of 1933, as amended,
until the earliest of (1) such time as there are no Registrable Securities
outstanding, (2) the expiration of the period referred to in Rule 144(k) of the
Securities Act with respect to all Registrable Securities held by Persons that
are not Affiliates of the Company, and (3) two years from the Issue Date (the
“Effectiveness Period”). The Company will be permitted to suspend the use of
the prospectus that is part of the Shelf Registration Statement during certain
periods of time as provided in the Registration Rights Agreement.


 


If (i) on or
prior to 90 days following the Issue Date, a Shelf Registration Statement has
not been filed with the Commission, or (ii) on or prior to the 180th day
following the Issue Date, such Shelf Registration Statement is not declared
effective (each, a “Registration Default”), additional interest (“Liquidated
Damages”) will accrue on the Registrable Securities from and including the day
following such Registration Default to, but excluding, the day on which such
Registration Default has been cured. Liquidated Damages will be paid
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date in respect of the Registrable Securities following the
date on which such Liquidated Damages begin to accrue, and will accrue at a
rate per annum equal to one-quarter of one percent (0.25%) of the principal
amount of the Registrable Securities to and including the 90th day following
such Registration Default and at a rate per annum equal to one-half of one
percent (0.50%) of the principal amount of the Registrable Securities from and
after the 91st day following such Registration Default. Pursuant to the
Registration Rights Agreement, in the event that the Shelf Registration
Statement ceases to be effective or the Electing Holders of Registrable
Securities are otherwise prevented or restricted by the Company from effecting
sales pursuant thereto (each, an “Effective Failure”) during the Effectiveness
Period for more than 45 days, whether or not consecutive, during any 90-day
period or for more than 90 days, whether or not consecutive, during any
12-month period, then the interest rate borne by the Registrable Securities
held by Electing Holders shall increase by an additional one-half of one
percent (0.50%) per annum from the 46th day of the applicable 90-day period or
the 91st day of the applicable 12-month period until the earlier of (A) such
time as the Effective Failure is cured or (B) the Effectiveness Period
expires.  Liquidated Damages will accrue
(1) with respect to a Registrable Securities at the rates set forth above,
as applicable, on the principal amount of the Registrable Securities and
(2) in respect of the Common Stock issued upon conversion of the
Registrable Securities, at the rates set forth above, as applicable, applied to
the Conversion Price at that time.  In
no event shall the Company be required to pay Liquidated Damages in excess of
the applicable maximum amount of one-half of one percent (0.5%) set forth above
regardless of whether one or multiple Registration Defaults exist.


 


Whenever in
this Security there is a reference, in any context, to the payment of the
principal of, premium, if any, or interest on, or in respect of, any Security,
such mention shall be deemed to


 


25

















 


include
mention of the payment of Liquidated Damages payable as described in the
preceding paragraph to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect of such Security and express mention
of the payment of Liquidated Damages (if applicable) in any provisions of this
Security shall not be construed as excluding Liquidated Damages in those provisions
of this Security where such express mention is not made.


 


[If this
Security is a Registrable Security and the Holder of this Security [if this
security is a global security, then insert — (including any Person
that has a beneficial interest in this Security)] elects to sell this Security
pursuant to the Shelf Registration Statement then, by its acceptance hereof,
such Holder of this Security agrees to be bound by the terms of the
Registration Rights Agreement relating to the Registrable Securities which are
the subject of such election.]


 


If a Change in
Control occurs, the Holder of this Security, at the Holder’s option, shall have
the right, in accordance with the provisions of the Indenture, to require the
Company to repurchase this Security (or any portion of the principal amount
hereof that is at least U.S. $1,000 or an integral multiple of U.S. $1,000 in
excess thereof, provided that the portion of the principal amount of this
Security to be Outstanding after such repurchase is at least equal to U.S.
$1,000) at a Repurchase Price equal to 100% of the principal amount thereof
plus interest accrued to, but excluding, the Repurchase Date. At the option of
the Company, the Repurchase Price may be paid in cash or, subject to the
conditions provided in the Indenture, by delivery of shares of Applicable Stock
having a fair market value equal to the Repurchase Price. For purposes of this
paragraph, the fair market value of shares of Applicable Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Price Per Share for the five consecutive Trading Days immediately
preceding the second Trading Day prior to the Repurchase Date.


 


[The following
paragraph shall appear in each Global Security:


 


In the event
of a deposit or withdrawal of an interest in this Security, including an
exchange, transfer, redemption, repurchase or conversion of this Security in
part only, the Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance
with the Applicable Procedures.]


 


[The following paragraph shall appear in each
Security that is not a Global Security:


 


In the event
of redemption, repurchase or conversion of this Security in part only, a new
Security or Securities for the unredeemed, unrepurchased or unconverted portion
hereof will be issued in the name of the Holder hereof.]


 


The
indebtedness evidenced by this Security is, to the extent and in the manner
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of the Company, and this Security is
issued subject to such provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to
take such action as may be


 


26

















 


necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.


 


If an Event of
Default shall occur and be continuing, the principal of all the Securities,
together with accrued interest to the date of declaration, may be declared due
and payable in the manner and with the effect provided in the Indenture. Upon
payment (i) of the amount of principal so declared due and payable, together
with accrued interest to the date of declaration, and (ii) of interest on any
overdue principal and, to the extent permitted by applicable law, overdue
interest, all of the Company’s obligations in respect of the payment of the
principal of and interest on the Securities shall terminate.


 


The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of
the Holders of the Securities under the Indenture at any time by the Company
and the Trustee with either (a) the written consent of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding, or (b) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present, by the Holders of at
least 662/3% in aggregate principal amount of the
Outstanding Securities represented and entitled to vote at such meeting. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued in exchange
therefore or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security or such other Security.  Certain modifications or amendments to the Indenture require the
consent of the Holder of each Outstanding Security affected.


 


As provided in
and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default, the Holders of not less than
25% in aggregate principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof, premiums if any, or interest
(including Liquidated Damages, if any) hereon on or after the respective due
dates expressed herein or for the enforcement of the right to convert this
Security as provided in the Indenture.


 


No reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the


 


27

















 


principal of,
premium, if any, and interest (including Liquidated Damages, if any) on this
Security at the times, places and rate, and in the coin or currency, herein prescribed
or to convert this Security as provided in the Indenture.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable on the Security Register upon
surrender of this Security for registration of 
transfer at the Corporate Trust Office of the Trustee, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees by the Security
Registrar. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to recover any tax or other governmental charge payable in connection therewith.


 


Prior to due
presentation of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered, as the owner thereof for all purposes,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.


 


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


 


THE INDENTURE AND THIS SECURITY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
UNITED STATES OF AMERICA.


 


All terms used
in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.


 


28

















 


ABBREVIATIONS


 


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


 


	
  TEN COM

  	
  as tenant in
  common

  	
  UNIF GIFT
  MIN ACT

  	
             Custodian

  
	
  TEN ENT

  	
  as tenants
  by the entireties (Cust)

  	
   

  	
  (Cust)

  	
  (Minor)

  
	
  JT TEN

  	
  as joint
  tenants with right of survivorship and not as tenants in common

  	
   

  	
  under
  Uniform Gifts to Minors Act

  
	
   

  	
   

  	
   

  	
  (State)

  



 


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


 


29

















 


ELECTION OF HOLDER TO REQUIRE REPURCHASE


 


(1)                           Pursuant
to Section 14.1 of the Indenture, the undersigned hereby elects to have this
Security repurchased by the Company.


 


(2)                           The undersigned
hereby directs the Trustee or the Company to pay it or
                        
an amount in cash or, at the Company’s election, Applicable Stock valued as set
forth in the Indenture, equal to 100% of the principal amount to be repurchased
(as set forth below), plus interest accrued to, but excluding, the Repurchase
Date, as provided in the Indenture.


 


	
  Dated:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature(s)

  	
   

  
	
   

  	
   

  
	
  Signature(s)
  must be guaranteed by an Eligible

  Guarantor Institution with membership in an

  approved signature guarantee program pursuant

  to Rule 17Ad-15 under the Securities Exchange

  Act of 1934.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  Guaranteed

  	
   

  
	
   

  	
   

  
	
  Principal
  amount to be repurchased (at least

  U.S. $1,000 or an integral multiple of $1,000

  in excess thereof):

  	
   

  
	
   

  	
   

  
	
  Remaining
  principal amount following such

  repurchase (not less than U.S. $1,000):

  	
   

  



 


NOTICE: The
signature to the foregoing Election must correspond to the Name as written upon
the face of this Security in every particular, without alteration or any change
whatsoever.


 


SECTION 2.3                     Form of Certificate of
Authentication.


 


The Trustee’s
certificate of authentication shall be in substantially the following form:


 


This is one of
the Securities referred to in the within-mentioned Indenture.


 


Dated: 


 


30

















 


	
   

  	
  WELLS FARGO BANK MINNESOTA,

  NATIONAL ASSOCIATION

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  



 


SECTION 2.4                     Form of Conversion
Notice.


 


CONVERSION NOTICE


 


The undersigned
Holder of this Security hereby irrevocably exercises the option to convert this
Security, or any portion of the principal amount hereof (which is U.S.$1,000 or
an integral multiple of U.S.$1,000 in excess thereof, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof) below designated, into shares of
Common Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment for
any fractional share and any Securities representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned
unless a different name has been indicated below. If shares of Common Stock or
Securities are to be registered in the name of a Person other than the
undersigned, (a) the undersigned will pay all transfer taxes payable with
respect thereto and (b) signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an approved signature guarantee
program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934. Any
amount required to be paid by the undersigned on account of interest
accompanies this Security.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  	
   

  
	
   

  
	
  If shares or
  Securities are to be registered in the

  name of a Person other than the Holder, please

  print such Person’s name and address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
   

  
	
  Social
  Security or other Identification

  	
   

  
	
  Number, if
  any.

  	
   

  
						



 


31

















 


	
   

  	
   

  
	
  [Signature
  Guaranteed]

  	
   

  



 


If only a
portion of the Securities is to be converted, please indicate:


 


1.             Principal amount to be converted: U.S. $ 


 


2.                                       Principal
amount and denomination of Securities

representing unconverted principal amount to be issued:


 


Amount: U.S.
$                     Denominations: U.S. $


 


(U.S.$1,000 or
any integral multiple of U.S.$1,000 in excess thereof, provided that the
unconverted portion of such principal amount is U.S. $1,000 or any integral
multiple of U.S. $1,000 in excess thereof)


 


SECTION 2.5                     Form of Assignment.


 


For value
received
                        hereby
sell(s), assign(s) and transfer(s) unto
                         
(Please insert social security or other identifying number of assignee) the
within Security, and hereby irrevocably constitutes and appoints
                        as
attorney to transfer the said Security on the books of the Company, with full
power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  	
   

  
	
   

  	
  Signature(s)
  must be guaranteed by an Eligible

  Guarantor Institution with membership in an

  approved signature guarantee program pursuant

  to Rule 17Ad - 15 under the Securities

  Exchange Act of 1934.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature
  Guaranteed

  
							



 


32

















 


ARTICLE III

THE SECURITIES


 


SECTION 3.1                     Title and Terms.


 


The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is limited to U.S. $632,500,000, except for Securities
authenticated and delivered pursuant to Section 3.4, 3.5, 3.6, 8.5, 12.2 or
14.3(5) in exchange for, or in lieu of, other Securities previously
authenticated and delivered under this Indenture.


 


(1)           The
Securities shall be known and designated as the “2.50% Convertible Subordinated
Notes due February 1, 2010” of the Company. 
Their Stated Maturity shall be February 1, 2010 and they shall bear
interest on their principal amount from February 4, 2003, payable semi-annually
in arrears on February 1 and August 1 in each year, commencing August 1, 2003,
at the rate of 2.50% per annum until the principal thereof is due and at the
rate of 2.50% per annum on any overdue principal and, to the extent permitted
by law, on any overdue interest; provided, however, that payments
shall only be made on a Business Day as provided in Section 1.12.


 


The principal
of, premium, if any, and interest on the Securities shall be payable as
provided in the form of Securities set forth in Section 2.2, and the Repurchase
Price, whether payable in cash or in shares of Common Stock, shall be payable
at such places as are identified in the Company Notice given pursuant to
Section 14.3 (any city in which any Paying Agent is located being herein called
a “Place of Payment”).


 


The Registrable
Securities are entitled to the benefits of a Registration Rights Agreement as
provided by Section 10.11 and in the form of Security set forth in Section 2.2.
The Securities are entitled to the payment of Liquidated Damages as provided by
Section 10.10 and in the form of Security set forth in Section 2.2.


 


The Securities
shall be redeemable at the option of the Company at any time on or after
February 6, 2006, in whole or in part, subject to the conditions and as
otherwise provided in Article XI and in the form of Security set forth in
Section 2.2.


 


The Securities
shall be convertible as provided in Article XII (any city in which any
Conversion Agent is located being herein called a “Place of Conversion”).


 


The Securities
shall be subordinated in right of payment to Senior Debt of the Company as
provided in Article XIII.


 


33

















 


The Securities shall be subject to repurchase
by the Company at the option of the Holders as provided in Article XIV.


 


SECTION 3.2                   Denominations.


 


The Securities shall be issuable only in
registered form, without coupons, in denominations of U.S.$1,000 and integral
multiples of U.S.$1,000 in excess thereof.


 


SECTION 3.3                     Execution,
Authentication, Delivery and Dating.


 


The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its Chief Executive Officer, its President, its
Chief Operating Officer, one of its Executive Vice Presidents, one of its
Senior Vice Presidents or one of its Vice Presidents, and attested by its Chief
Financial Officer, Secretary or one of its Assistant Secretaries. Any such
signature may be manual or facsimile.


 


Securities
bearing the manual or facsimile signature of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.


 


At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee or to its
order for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such
Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture.


 


Each Security
shall be dated the date of its authentication.


 


No Security shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.


 


SECTION 3.4                     Global Securities;
Non-global Securities; Book-entry Provisions.


 


(1)           Global
Securities


 


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


 


34

















 


(ii)        Except for exchanges of Global
Securities for definitive, non-global Securities at the sole discretion of the
Company, no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency registered as such
under the Exchange Act or announces an intention permanently to cease business
or does in fact do so or (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security.  In such event, if a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of an Officers’ Certificate
directing the authentication and delivery of Securities, will authenticate and
deliver, Securities, in any authorized denominations in an aggregate principal
amount equal to the principal amount of such Global Security in exchange for
such Global Security.


 


(iii)       If any Global Security is to be exchanged
for other Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Trustee, as Security Registrar,
for exchange or cancellation, as provided in this Article III. If any Global
Security is to be exchanged for other Securities or canceled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, in each case, as provided in Section 3.5, then
either (A) such Global Security shall be so surrendered for exchange or
cancellation, as provided in this Article III, or (B) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee,
as Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 3.5(3)
and as otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article III if such order, direction or request is given
or made in accordance with the Applicable Procedures.


 


(iv)      Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article III or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
registered Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof,
in which case such Security shall be authenticated and delivered in definitive,
fully registered form, without interest coupons.


 


35

















 


(v)       The Depositary or its nominee, as
registered owner of a Global Security, shall be the Holder of such Global
Security for all purposes under the Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests pursuant to
the Applicable Procedures. Accordingly, any such owner’s beneficial interest in
a Global Security will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its
nominee or its Agent Members and such owners of beneficial interests in a
Global Security will not be considered the owners or holders thereof.


 


(2)           Non-global
Securities.  Securities issued upon the
events described in Section 3.4(l)(ii) shall be in definitive, fully
registered form, without interest coupons, and shall bear the Restricted
Securities Legend if and as required by this Indenture.


 


SECTION 3.5                     Registration;
Registration of Transfer and Exchange; Restrictions on Transfer.


 


(1)           The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided.


 


Upon surrender
for registration of transfer of any Security at an office or agency of the
Company designated pursuant to Section 10.2 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


At the option
of the Holder, and subject to the other provisions of this Section 3.5,
Securities may be exchanged for other Securities of any authorized denomination
and of a like aggregate principal amount, upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, and subject to the other provisions of this Section
3.5, the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities that the Holder making the exchange is entitled to receive.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.


 


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


 


No service
charge shall be made to a Holder for any registration of transfer or exchange
of Securities except as provided in Section 3.6, but the Company may require
payment of a sum


 


36

















 


sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 8.5, 12.2 or 14.3 (other than where the
shares of Common Stock are to be issued or delivered in a name other than that
of the Holder of the Security) not involving any transfer and other than any
stamp and other duties, if any, which may be imposed in connection with any
such transfer or exchange by the United States or any political subdivision
thereof or therein, which shall be paid by the Company.


 


In the event
of a redemption of the Securities, neither the Company nor the Securities
Registrar will be required (a) to register the transfer of or exchange
Securities for a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer of or exchange any Security, or
portion thereof, called for redemption.


 


(2)           Certain
Transfers and Exchanges. Notwithstanding any other provision of this
Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this
Section 3.5(2) shall be made only in accordance with this Section 3.5(2).


 


(i)    Restricted Global Security to Restricted
Non-global Security.  In the event
that Non-global Securities are to be issued pursuant to Section 3.4(1)(ii) in
connection with any transfer of Securities, such transfer may be effected only
in accordance with the provisions of this clause (2)(i) and subject to the
Applicable Procedures.  Upon receipt by
the Trustee, as Security Registrar, of (A) a Company Order from the Company
directing the Trustee, as Security Registrar, to (x) authenticate and deliver
one or more Securities of the same aggregate principal amount as the beneficial
interest in the Restricted Global Security to be transferred, such instructions
to contain the name or names of the designated transferee or transferees, the
authorized denomination or denominations of the Securities to be so issued and
appropriate delivery instructions and (y) decrease the beneficial interest of a
specified Agent Member’s account in a Restricted Global Security by a specified
principal amount not greater than the principal amount of such Restricted
Global Security, and (B) such other certifications, legal opinions or other
information as the Company or the Trustee may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act, then the Trustee, as Security Registrar, shall decrease the principal
amount of the Restricted Global Security by the specified amount and
authenticate and deliver Securities in accordance with such instructions from
the Company as provided in Section 3.4(1)(iii).


 


(ii)   Restricted Non-global Security to
Restricted Global Security.  If the
Holder of a Restricted Security (other than a Global Security) wishes at any
time to transfer all or any portion of such Restricted Security to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected only in accordance
with the provisions of this clause (2)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of such
Restricted Security as provided in Section 3.5(1) and instructions from
the Company directing that a beneficial interest in the Restricted Global
Security in a specified principal amount not greater than the principal amount
of


 


37

















 


such Security be credited to a specified Agent
Member’s account, then the Trustee, as Security Registrar, shall cancel such
Restricted Security (and issue a new Restricted Security in respect of any
untransferred portion thereof) as provided in Section 3.5(1) and increase the
principal amount of the Restricted Global Security by the specified principal amount
as provided in Section 3.4(1)(iii).


 


(iii)  Exchanges Between Global Security and
Non-global Security.  A beneficial
interest in a Global Security may be exchanged for a Security that is not a
Global Security only as provided in Section 3.4 or only if such exchange occurs
in connection with a transfer effected in accordance with clause 2(i) above,
provided that, if such interest is a beneficial interest in the Restricted
Global Security, then such interest shall be exchanged for a Restricted
Security (subject in each case to Section 3.5(3)). A Security that is not a
Global Security may be exchanged for a beneficial interest in a Global Security
only if such exchange occurs in connection with a transfer effected in
accordance with clause (2)(ii) above.


 


(3)           Securities
Act Legends. All Securities issued pursuant to this Indenture, and all
Successor Securities, shall bear the Restricted Securities Legend subject to
the following:


 


(i)    subject to the following clauses of this
Section 3.5(3), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof shall bear
the Restricted Securities Legend borne by such Global Security for which the
Security was exchanged;


 


(ii)   subject to the following clauses of this
Section 3.5(3), a new Security that is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Restricted Securities
Legend borne by the Security for which the new Security was exchanged;


 


(iii)  any Securities that are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement), together with
their Successor Securities shall not bear a Restricted Securities Legend; the
Company shall inform the Trustee in writing of the effective date of any such
registration statement registering the Securities under the Securities Act and
shall notify the Trustee at any time when prospectuses must be delivered with
respect to Securities to be sold pursuant to such registration statement. The
Trustee shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the aforementioned registration statement;


 


(iv)  at any time after the Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a new Security
that does not bear a Restricted Securities Legend may be issued in exchange for
or in lieu of a Security (other than a Global Security) or any portion thereof
that bears such a legend if the Trustee has received an Unrestricted Securities
Certificate, satisfactory to the Trustee and duly executed by the Holder of
such Security bearing a Restricted Securities Legend or his attorney duly
authorized in writing, and after such date and receipt of such certificate, the
Trustee shall


 


38

















 


authenticate and deliver such new Security in exchange
for or in lieu of such other Security as provided in this Article III;


 


(v)   a new Security that does not bear a
Restricted Securities Legend may be issued in exchange for or in lieu of a
Security or any portion thereof that bears such a legend if, in the Company’s
judgment, placing such a legend upon such new Security is not necessary to
ensure compliance with the registration requirements of the Securities Act, and
the Trustee, at the direction of the Company, shall authenticate and deliver
such a new Security as provided in this Article III; and


 


(vi)  notwithstanding the foregoing provisions of
this Section 3.5(3), a Successor Security of a Security that does not bear a
Restricted Securities Legend shall not bear such legend unless the Company has
reasonable cause to believe that such Successor Security is a “restricted
security” within the meaning of Rule 144, in which case the Trustee, at the
direction of the Company, shall authenticate and deliver a new Security bearing
a Restricted Securities Legend in exchange for such Successor Security as
provided in this Article III.


 


(4)           Any
stock certificate representing shares of Common Stock issued upon conversion of
the Securities shall bear the Restricted Securities Legend borne by such
Securities, to the extent required by this Indenture, unless such shares of
Common Stock have been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and that continues to be effective
at the time of such transfer) or sold pursuant to Rule 144(k) of the Securities
Act, or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent for the Common Stock.  With respect to the transfer of shares of Common Stock issued
upon conversion of the Securities that are restricted hereunder, any deliveries
of certificates, legal opinions or other instruments that would be required to
be made to the Security Registrar in the case of a transfer of Securities, as
described above, shall instead be made to the transfer agent for the Common
Stock.


 


(5)           Neither
the Trustee, the Paying Agent nor any of their agents shall (i) have any duty
to monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on any
transfers or exchanges other than as specifically required hereunder.


 


SECTION 3.6                     Mutilated, Destroyed,
Lost or Stolen Securities.


 


If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.


 


If there be
delivered to the Company and to the Trustee:


 


(1)           evidence
to their satisfaction of the destruction, loss or theft of any Security, and


 


39

















 


(2)           such
security or indemnity as may be satisfactory to the Company and the Trustee to
save each of them and any agent of either of them harmless,


 


then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.


 


In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion, but subject to any conversion rights,
may, instead of issuing a new Security, pay such Security, upon satisfaction of
the conditions set forth in the preceding paragraph.


 


Upon the
issuance of any new Security under this Section 3.6, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto (other than any stamp and other duties,
if any, which may be imposed in connection therewith by the United States or
any political subdivision thereof or therein, which shall be paid by the
Company) and any other expenses (including the fees and expenses of the
Trustee) connected therewith.


 


Every new
Security issued pursuant to this Section 3.6 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and such
new Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued hereunder.


 


The provisions
of this Section 3.6 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies of any Holder with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.


 


SECTION 3.7                     Payment of Interest;
Interest Rights Preserved.


 


Subject to the
last paragraph of this Section, interest (including Liquidated Damages, if any)
on any Security that is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.


 


Any interest
(or Liquidated Damages, if any) on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:


 


(1)           The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of


 


40

















 


business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security, the date of the proposed payment and the Special Record Date, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon, the Trustee shall fix the Special
Record Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at such Holder’s address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).


 


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


 


Subject to the provisions of
this Section 3.7 and of Section 3.5, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest (including Liquidated
Damages, if any) accrued and unpaid, and to accrue, which were carried by such
other Security.


 


Interest on
any Security that is converted in accordance with Section 12.2 during a Record
Date Period shall be payable in accordance with the provisions of Section 12.2.


 


SECTION 3.8                     Persons Deemed Owners.


 


Prior to due
presentment of a Security for registration of transfer, the Company, the
Trustee, any Paying Agent and any agent of the Company, the Trustee or any
Paying Agent may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal
of, premium, if any, and (subject to Section 3.7) interest (including
Liquidated Damages, if any) on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee, any Paying Agent nor any agent of the Company, the Trustee or any
Paying Agent shall be affected by notice to the contrary.


 


41

















 


SECTION 3.9                     Cancellation.


 


All Securities
surrendered for payment, redemption, repurchase, registration of transfer or exchange
or conversion shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities so delivered to the Trustee shall be
canceled promptly by the Trustee (or its agent). No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 3.9. The Trustee shall dispose of all canceled Securities in
accordance with applicable law and its customary practices in effect from time
to time.


 


SECTION 3.10                   Computation of Interest.


 


Interest (including Liquidated
Damages, if any) on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.


 


SECTION 3.11                   CUSIP Numbers.


 


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


 


ARTICLE IV

SATISFACTION AND DISCHARGE


 


SECTION 4.1                     Satisfaction and
Discharge of Indenture.


 


This Indenture
shall upon a Company Request cease to be of further effect (except as to any
surviving rights of conversion, or registration of transfer or exchange, or
replacement of Securities herein expressly provided for and any right to
receive Liquidated Damages as provided in Section 10.11 and in the form of
Securities set forth in Section 2.2 and the Company’s obligations to the
Trustee pursuant to Section 6.7), and the Trustee, at the expense of the
Company, shall execute proper instruments in form and substance satisfactory to
the Trustee acknowledging satisfaction and discharge of this Indenture, when:


 


(1)           either


 


(i)    all Securities theretofore authenticated and
delivered (other than (A) Securities which have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.6 and (B)
Securities 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 10.3) have been
delivered to the Trustee for cancellation; or


 


42

















 


(ii)   all such Securities not theretofore delivered
to the Trustee or its agent for cancellation (other than Securities referred to
in clauses (A) and (B) of clause (1)(i) above)


 


(a)   have become due and payable, or


 


(b)   will have become due and payable at their
Stated Maturity within one year, or


 


(c)   are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,


 


and the Company, in the case of
clause (a), (b) or (c) above, has deposited or caused to be deposited with the
Trustee as trust funds (immediately available to the Holders in the case of
clause (a)) in trust for the purpose an amount in cash sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal, premium, if any, and interest
(including any Liquidated Damages) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;


 


(2)           the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and


 


(3)           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 satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.12, the obligation of the Company to pay
Liquidated Damages, if money shall have been deposited with the Trustee
pursuant to clause (1)(ii) of this Section 4.1, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 and the obligations of
the Company and the Trustee under Section 3.5 and Article XII shall survive.
Funds held in trust pursuant to this Section are not subject to the provisions
of Article XIII.


 


SECTION 4.2                     Application
of Trust Money.


 


Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 and in accordance with the provisions of
Article XIII shall be held in trust for the sole benefit of the Holders and not
be subject to the subordination provisions of Article XIII, and such monies shall
be applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent, to the Persons entitled thereto, of the principal, premium, if any, and
interest (including Liquidated Damages, if any) for whose payment such money
has been deposited with the Trustee.


 


43

















 


All moneys
deposited with the Trustee pursuant to Section 4.1 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.


 


The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed or assessed
against all money deposited with the Trustee pursuant to Section 4.1 (other
than income taxes and franchise taxes incurred or payable by the Trustee and
such other taxes, fees or charges incurred or payable by the Trustee that are
not directly the result of the deposit of such money with the Trustee).


 


ARTICLE V

REMEDIES


 


SECTION 5.1                     Events of Default.


 


“Event of
Default”, wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be occasioned by the
provisions of Article XIII or 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):


 


(1)           default
in the payment of the principal of or premium, if any, on any Security at its
Maturity, whether or not such payment is prohibited by the subordination
provisions of this Indenture; or


 


(2)           default
in the payment of any interest (including any Liquidated Damages) upon any
Security when it becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment is prohibited by the
subordination provisions of this Indenture; or


 


(3)           failure
by the Company to give a Company Notice in accordance with Section 14.3
whether or not such Company Notice is prohibited by the subordination
provisions of this Indenture; or


 


(4)           default
in the performance of any agreement or covenant of the Company in this
Indenture (other than a covenant a default in the performance of which is
specifically dealt with elsewhere in this Section or any failure to perform any
covenant related to the registration rights granted to the Holders under the
Registration Rights Agreement (except for covenants requiring the payment of
Liquidated Damages by the Company)), and continuance of such default for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(5)           failure
by the Company to pay any indebtedness under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company in a principal
amount then


 


44

















 


outstanding in excess of $50,000,000 at final maturity
(either at its stated maturity or upon acceleration thereof), and such
indebtedness is not discharged, or such acceleration is not rescinded or
annulled, within a period of 30 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or


 


(6)           the
entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of the property thereof, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or


 


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


 


SECTION 5.2                     Acceleration of
Maturity; Rescission and Annulment.


 


If an Event of
Default (other than an Event of Default specified in Section 5.1(6) or 5.1(7))
occurs and is continuing, then the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities may, subject to the
provisions of Article XIII, declare the principal of, and accrued interest
(including Liquidated Damages, if any) on, all the Securities to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal and all
accrued interest thereon shall become immediately due and payable. If an Event
of Default specified in Section 5.1(6) or 5.1(7) occurs, the principal of, and
accrued interest (including Liquidated Damages, if any) on, all the Securities
shall, subject to the provisions of Article XIII, automatically become
immediately due and


 


45

















 


payable
without any declaration or other Act of the Holders or any act or declaration
on the part of the Trustee.


 


At any time
after such declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article V provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may, on behalf of all Holders, rescind and annul such
declaration and its consequences if:


 


(1)           the
Company has paid or deposited with the Trustee a sum sufficient to pay


 


(i)    all overdue interest (including Liquidated
Damages, if any) on all Securities,


 


(ii)   the principal of and premium, if any, on any
Securities that have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate borne by the Securities,


 


(iii)  to the extent permitted by applicable law,
interest upon overdue interest at a rate of 2.50% per annum, and


 


(iv)  all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;


 


(2)           all
Events of Default, other than the nonpayment of the principal of the Securities
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13; and


 


(3)           such
rescission and annulment would not conflict with any judgment or decree issued
in appropriate judicial proceedings regarding the payment by the Trustee to the
Holders of the amounts referred to in 5.2(1).


 


No rescission
or annulment referred to above shall affect any subsequent default or impair
any right consequent thereon.


 


SECTION 5.3                     Collection of
Indebtedness and Suits for Enforcement by Trustee.


 


The Company
covenants that if:


 


(1)           default
is made in the payment of any interest (including any Liquidated Damages) on
any Security when it becomes due and payable and such default continues for a
period of 30 days, or


 


(2)           default
is made in the payment of the principal of or premium, if any, on any Security
at the Maturity thereof,


 


46

















 


the Company
will, upon demand of the Trustee but subject to the provisions of Article XIII
pay to it, for the benefit of the Holders of such Securities the whole amount
then due and payable on such Securities for principal and interest (including
any Liquidated Damages) and interest on any overdue principal and premium, if
any, and, to the extent permitted by applicable law, on any overdue interest
(including Liquidated Damages, if any), at a rate of 2.50% per annum, and in
addition thereto, such further amount as shall be sufficient to cover the reasonable
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


If the Company
fails 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 Securities 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 Securities, wherever situated.


 


If an Event of
Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.


 


SECTION 5.4                     Trustee May File Proofs
of Claim.


 


In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or the creditors of either,
the Trustee (irrespective of whether the principal of, and any interest on, the
Securities 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
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,


 


(1)           to
file a proof of claim for the whole amount of principal, premium, if any, and
interest owing and unpaid in respect of the Securities and take such other
actions, including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter, and to file such
other papers or documents, in each of the foregoing cases, as may be 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 of Securities allowed in
such judicial proceeding, and


 


(2)           to
collect and receive any moneys or other property payable or deliverable on any
such claim and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each


 


47

















 


Holder of Securities to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amounts due the Trustee
under Section 6.7.


 


Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder of a Security any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official.


 


SECTION 5.5                     Trustee May Enforce
Claims Without Possession of Securities.


 


All rights of action and claims under this
Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such 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
Securities in respect of which judgment has been recovered.


 


SECTION 5.6                     Application of Money
Collected.


 


Subject to
Article XIII, any money collected by the Trustee pursuant to this Article V
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of 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 6.7;


 


SECOND:  To the payment of the amounts then due and
unpaid for principal of, premium, if any, or interest (including Liquidated
Damages, if any) on, the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest (including Liquidated Damages, if
any), respectively;


 


THIRD:  To such other Person or Persons, if any, to
the extent entitled thereto; and


 


FOURTH:  Any remaining amounts shall be repaid to the
Company.


 


48

















 


SECTION 5.7                     Limitation on Suits.


 


No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:


 


(1)           such
Holder has previously given written notice to the Trustee of an Event of
Default and such Event of Default is continuing at the time of such institution;


 


(2)           the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;


 


(3)           such
Holder or Holders have offered to the Trustee, and if requested, shall have
provided, reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;


 


(4)           the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity (or if requested, receipt of indemnity) has failed to institute any
such proceeding; and


 


(5)           no
direction inconsistent with such written request has been given to the Trustee
by the Holders of a majority in aggregate principal amount of the Outstanding
Securities,


 


it being understood and
intended that no one or more of such 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 of such Holders, or to
obtain or seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such Holders.


 


SECTION 5.8                                                              Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert.


 


Notwithstanding any other
provision in this Indenture, but subject to the provisions of Article XIII, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.7) interest (including Liquidated Damages, if any) on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repurchase, on the Redemption Date or
Repurchase Date, as the case may be), and to convert such Security in
accordance with Article XII, and to institute suit for the enforcement of any
such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.


 


49

















 


SECTION 5.9                     Restoration of Rights
and Remedies.


 


If the Trustee
or any Holder of a Security has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Securities shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holders shall
continue as though no such proceeding had been instituted.


 


50

















 


SECTION 5.10                   Rights and Remedies
Cumulative.


 


Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of Securities is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.


 


SECTION 5.11                   Delay or Omission Not
Waiver.


 


No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or any acquiescence therein. Every right and remedy given
by this Article V or by law to the Trustee or to the Holders of Securities may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or (subject to the limitations contained in this Indenture) by the
Holders of Securities as the case may be.


 


SECTION 5.12                   Control by Holders of
Securities.


 


Subject to Section 6.3, the Holders of a
majority in principal amount of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee; provided that:


 


(1)           such direction shall not be in
conflict with any rule of law or with this Indenture; and


 


(2)           the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction; and


 


(3)           the Trustee need not take any action
that might involve it in personal liability, unless the Trustee is offered
indemnity or security satisfactory to it, or that the Trustee determines in
good-faith would be unjustly prejudicial to the Holders of Securities not
consenting.


 


SECTION 5.13                   Waiver of Past Defaults.


 


The Holders, either (i) through the written
consent of not less than a majority in principal amount of the Outstanding
Securities or (ii) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present, by the Holders of at
least 662/3% in principal amount of the Outstanding
Securities represented at such meeting, may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default (A) in the payment of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on any Security, or (B) in respect of a
covenant or provision hereof which under Article VIII


 


51

















 


cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.


 


Upon any such waiver, 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 shall
extend to any subsequent or other default or impair any right consequent
thereon.


 


SECTION 5.14                   Undertaking for Costs.


 


All parties to
this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
any suit against the Trustee for any action taken, suffered 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, 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; but the provisions of this
Section 5.14 shall not apply to any suit instituted by the Company, 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
Outstanding Securities, or to any suit instituted by any Holder of any Security
for the enforcement of the payment of the principal of, premium, if any, or
interest on any Security on or after the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on or after the Redemption Date or Repurchase Date, as the case may
be) or for the enforcement of the right to convert any Security in accordance
with Article XII.


 


SECTION 5.15                   Waiver of Stay, Usury or
Extension Laws.


 


The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, usury or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede by reason of such
law 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.


 


ARTICLE VI

THE TRUSTEE


 


SECTION 6.1                     Certain Duties and
Responsibilities.


 


(1)           Except
during the continuance of an Event of Default:


 


52

















 


(i)            the Trustee undertakes to perform
such duties and only such duties 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 on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any such certificates or opinions which by any
provision 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 not to verify the contents
thereof.


 


(2)           In
case an Event of Default has occurred and is continuing, 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 man would exercise
or use under the circumstances in the conduct of his own affairs.


 


(3)           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:


 


(i)            this paragraph (3) shall not be
construed to limit the effect of paragraph (1) of this Section;


 


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


 


(iii)          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 a majority in principal amount
of the Outstanding Securities 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;
and


 


(iv)          no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.


 


(4)           Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.


 


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SECTION 6.2                     Notice of Defaults.


 


Within 90 days
after the occurrence of any default hereunder as to which the Trustee has
received written notice, the Trustee shall give to all Holders of Securities,
in the manner provided in Section 1.6, notice of such default, unless such
default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of, premium, if
any, or interest on any Security the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders; and provided, further, that in the case of any default of the
character specified in Section 5.1(4), no such notice to Holders of Securities
shall be given until at least 60 days after the occurrence thereof or, if
applicable, the cure period specified therein. For the purpose of this Section,
the term “default” means any event that is, or after notice or lapse of time or
both would become, an Event of Default.


 


SECTION 6.3                     Certain Rights of
Trustee.


 


Subject to the
provisions of Section 6.1:


 


(1)           the
Trustee may rely, and shall be protected in acting or refraining from acting,
upon any resolution, Officers’ Certificate, other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document (collectively, the “Documents”) believed by it to be genuine and to have
been signed or presented by the proper party or parties, and the Trustee need
not investigate any fact or matter stated in such Documents;


 


(2)           any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution;


 


(3)           whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be the one
specifically prescribed) may, in the absence of bad faith on its part, request
and rely upon an Officers’ Certificate or Opinion of Counsel;


 


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


 


(5)           the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders of Securities pursuant to this Indenture, unless such Holders shall
have offered, and, if requested by the Trustee, delivered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;


 


54

















 


(6)           the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document, but the Trustee may,
in its discretion, 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; and


 


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


 


SECTION 6.4                     Not Responsible for
Recitals or Issuance of Securities.


 


The recitals
contained herein and in the Securities (except the Trustee’s certificates of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to the
validity or sufficiency of this Indenture, of the Securities or of the Common
Stock issuable upon the conversion of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.


 


SECTION 6.5                     May Hold Securities, Act
as Trustee under Other Indentures.


 


The Trustee,
any Authenticating Agent, any Paying Agent, any Conversion Agent or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Section 6.13 and
Section 6.14, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Conversion
Agent or such other agent.


 


Subject to the
limitations posed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures
under which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding in the same manner as if it
were not Trustee hereunder.


 


SECTION 6.6                     Money Held in Trust.


 


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


 


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SECTION 6.7                     Compensation,
Reimbursement and Indemnity.


 


The Company agrees:


 


(1)           to
pay to the Trustee from time to time such reasonable compensation as the
Company and the Trustee shall from time to time agree in writing for its
acceptance of this Indenture and for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);


 


(2)           except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and


 


(3)           to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.


 


When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 5.1(6) or Section 5.1(7), the expenses (including the reasonable
charges of its counsel) and the compensation for the services are intended to
constitute expenses of the administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.


 


SECTION 6.8                     Corporate Trustee
Required; Eligibility.


 


There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, having (or be part of a
holding company group with) a combined capital and surplus of at least U.S.
$50,000,000, subject to supervision or examination by federal or state
authority, and in good standing. The Trustee or an Affiliate of the Trustee
shall maintain an established place of business in the Borough of Manhattan,
The City of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation 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 and a successor shall
be appointed pursuant to Section 6.9.


 


56

















 


SECTION 6.9                     Resignation and Removal;
Appointment of Successor.


 


(1)           No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable requirements of
Section 6.10.


 


(2)           The
Trustee may resign at any time by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 6.10
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(3)           The
Trustee may be removed at any time by an Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities, delivered to the
Trustee and the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.10 shall not have been delivered to the Trustee within 30
days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.


 


(4)           The
Trustee may be removed at any time by the Company and the Company may appoint a
successor Trustee pursuant to this Article, provided, that
(i) there is not an Event of Default that is continuing at the time of
removal, (ii) the successor Trustee appointed by the Company meets the
eligibility requirements of Section 6.8, and (iii) such removal and
resignation shall not become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of
Section 6.10.


 


(5)           If
at any time:


 


(i)    the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request therefor by the
Company or by any Holder of a Security; 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 any
such case (i) the Company by a Board Resolution may remove the Trustee, or (ii)
subject to Section 5.14, any Holder of a Security 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.


 


(6)           If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee and shall comply
with the applicable requirements of this Section and Section 6.10. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring


 


57

















 


Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.10,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the manner
required by this Section and Section 6.10, any Holder of a Security may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(7)           The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders of Securities in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


SECTION 6.10                   Acceptance of Appointment
by Successor.


 


Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments to more fully and certainly vest in and
to confirm to such successor Trustee all such rights, powers and trusts.


 


No successor
Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be eligible under this Article.


 


SECTION 6.11                   Merger, Conversion,
Consolidation or Succession to Business.


 


Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee (including the trust created by this Indenture), shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


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SECTION 6.12                   Authenticating Agents.


 


The Trustee
may, with the consent of the Company, appoint an Authenticating Agent or Agents
acceptable to the Company with respect to the Securities, which Authenticating
Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon exchange, substitution or otherwise pursuant to this
Indenture.


 


Securities
authenticated by an Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder, and every reference in this Indenture
to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be subject to acceptance
by the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent and subject to supervision or examination by government or other fiscal
authority. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.12, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 6.12.


 


Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate agency or
corporate trust business of an Authenticating Agent (including the
authenticating agency contemplated by this Indenture), shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.


 


An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.


 


The Company
agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.12.


 


If an
Authenticating Agent is appointed with respect to the Securities pursuant to
this Section 6.12, the Securities may have endorsed thereon, in addition to or
in lieu of the Trustee’s certification of authentication, an alternative
certificate of authentication in the following form:


 


59

















 


This is one of
the Securities referred to in the within-mentioned Indenture.


 


	
   

  	
  WELLS FARGO BANK MINNESOTA,

  NATIONAL ASSOCIATION

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  As
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


SECTION 6.13                   Disqualification;
Conflicting Interests.


 


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


 


SECTION 6.14                   Preferential Collection of
Claims Against Company.


 


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


 


ARTICLE VII

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


SECTION 7.1                     Company May Consolidate,
Etc. Only on Certain Terms.


 


The Company shall not
consolidate with or merge into any other Person or convey, transfer, sell or
lease its properties and assets substantially as an entirety to any Person
(other than to one or more of Company’s subsidiaries) unless:


 


(1)           the
Person formed by such consolidation or into or with which the Company is merged
or the Person to which the properties and assets of the Company are so
conveyed, transferred, sold or leased shall be a corporation, limited liability
company, partnership, trust or other business entity organized and validly
existing under the laws of the United States of America, any State thereof or
the District of Columbia and, if other than the Company, shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, premium, if any, and interest (including


 


60

















 


Liquidated Damages, if any) on the Securities and the
performance of the covenants under this Indenture;


 


(2)           immediately
after giving effect to such transaction, no Event of Default, and no event that
after notice or lapse of time or both, would become an Event of Default, shall
have occurred and be continuing; and


 


(3)           the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with, together with any documents required under Section 8.3.


 


SECTION 7.2                     Successor Substituted.


 


Upon any consolidation of the
Company with, or merger of the Company into any other Person or any conveyance,
transfer, sale or lease of the properties and assets of the Company
substantially as an entirety to any Person in accordance with Section 7.1, the
successor Person formed by such consolidation or into or with which the Company
is merged or to which such conveyance, transfer, sale or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.


 


ARTICLE VIII


SUPPLEMENTAL
INDENTURES


 


SECTION 8.1                     Supplemental Indentures
Without Consent of Holders of Securities.


 


Without the
consent of any Holders of Securities the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto for any of the following purposes:


 


(1)           to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants and obligations of the Company herein and
in the Securities as permitted by Article VII of this Indenture; or


 


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


 


(3)           to
add any additional Event of Default for the benefit of the Holders of
Securities; or


 


(4)           to
secure the Securities; or


 


61

















 


(5)           to
make provision with respect to the conversion rights of Holders of Securities
pursuant to Section 12.11 or to make provision with respect to the repurchase
rights of Holders of Securities pursuant to Section 14.5; or


 


(6)           to
make any changes or modifications to this Indenture necessary in connection
with the registration of any Registrable Securities under the Securities Act as
contemplated by Section 10.11, provided such action pursuant to this clause (6)
shall not adversely affect the interests of the Holders of Securities in any
material respect; or


 


(7)           to
comply with the requirements of the Trust Indenture Act or the rules and
regulations of the Commission thereunder in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act, as contemplated
by this Indenture or otherwise; or


 


(8)           to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee; or


 


(9)           subject
to Section 13.12, to make any change in Article XIII that would limit or
terminate the benefits available to any holder of Senior Debt under such
Article; or


 


(10)         to
cure any ambiguity, to correct or supplement any provision herein that may be
defective or may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture as the Company and the Trustee may deem necessary or desirable,
provided such action pursuant to this clause (10) shall not adversely affect
the interests of the Holders of Securities in any material respect.


 


Upon Company
Request, accompanied by a Board Resolution authorizing the execution of any
such supplemental indenture, and subject to and upon receipt by the Trustee of
the documents described in Section 8.3 hereof, the Trustee shall join with the
Company in the execution of any supplemental indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements
and stipulations that may be therein contained.


 


Notwithstanding
any other provision of the Indenture or the Securities, the Registration Rights
Agreement and the obligation to pay Liquidated Damages thereunder may be
amended, modified or waived in accordance with the provisions of the
Registration Rights Agreement.


 


SECTION 8.2                     Supplemental Indentures
with Consent of Holders of Securities.


 


With either (i) the written
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by the Act of said Holders delivered to the Company and
the Trustee, or (ii) by the adoption of a resolution, at a meeting of Holders
of the Outstanding Securities at which a quorum is present, by the Holders of
at least 662/3% in principal amount of the Outstanding
Securities represented at such meeting, the Company, when authorized by a Board
Resolution, and the Trustee may 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 of
modifying in any manner the rights of the Holders of Securities under this


 


62

















 


Indenture; provided, however,
that no such supplemental indenture shall, without the consent or affirmative
vote of the Holder of each Outstanding Security affected thereby:


 


(1)           change
the Stated Maturity of the principal of, or any installment of interest on
(including Liquidated Damages, if any) , any Security, or reduce the principal
amount of, or the premium, if any, or the rate of interest payable thereon, or
reduce the amount payable upon a redemption or mandatory repurchase, or change
the place or currency of payment of the principal of, premium, if any, or
interest (including Liquidated Damages, if any) on any Security or impair the
right to institute suit for the enforcement of any payment in respect of any
Security on or after the Stated Maturity thereof or, except as permitted by
Section 12.11, adversely affect the right of Holders to convert any Security as
provided in Article XII, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders; or


 


(2)           reduce
the requirements of Section 9.4 for quorum or voting, or reduce the percentage
in principal amount of the Outstanding Securities the consent of whose Holders
is required for any such supplemental indenture or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture; or


 


(3)           modify
the obligation of the Company to maintain an office or agency in the Borough of
Manhattan, The City of New York, pursuant to Section 10.2; or


 


(4)           modify
any of the provisions of this Section or Section 5.13 or 10.11, except to
increase any percentage contained herein or therein or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; or


 


(5)           modify
the provisions of Article XIV in a manner adverse to the Holders; or


 


(6)           modify
the provisions of Article XI in a manner adverse to the Holders; or


 


(7)           modify
any of the provisions of Section 10.9.


 


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


 


After the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of this Section 8.2, the Company shall give notice to the
Holders of Securities of such fact, setting forth in general terms the
substance of such supplemental indenture. 
Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.


 


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SECTION 8.3                     Execution of Supplemental
Indentures.


 


In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this
Article VIII or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections
6.1 and 6.3) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.


 


SECTION 8.4                     Effect of Supplemental
Indentures.


 


Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
appertaining thereto shall be bound thereby.


 


SECTION 8.5                     Reference in Securities
to Supplemental Indentures.


 


Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Company and the Trustee, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.


 


ARTICLE IX


MEETINGS OF
HOLDERS OF SECURITIES


 


SECTION 9.1                     Purposes for Which
Meetings May Be Called.


 


A meeting of
Holders of Securities may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be made, given or taken by Holders of Securities.


 


SECTION 9.2                     Call, Notice and Place
of Meetings.


 


(1)           The
Trustee may at any time call a meeting of Holders of Securities for any purpose
specified in Section 9.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of Holders of Securities, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in Section 1.6, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.


 


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(2)           In
case at any time the Company, pursuant to a Board Resolution, or the Holders of
at least 10% in principal amount of the Outstanding Securities shall have
requested the Trustee to call a meeting of the Holders of Securities for any
purpose specified in Section 9.1, 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 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities in
the amount specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
paragraph (1) of this Section.


 


SECTION 9.3                     Persons Entitled to Vote
at Meetings.


 


To be entitled
to vote at any meeting of Holders of Securities, a Person shall be (i) a Holder
of one or more Outstanding Securities, or (ii) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities by such Holder or Holders. 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, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.


 


SECTION 9.4                     Quorum; Action.


 


The Persons
entitled to vote a majority in principal amount of the Outstanding Securities
shall constitute a quorum. In the absence of a quorum within 30 minutes of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities, be dissolved. In any other case, the meeting
may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting
(subject to repeated applications of this sentence). Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 9.2(1), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the principal amount of the
Outstanding Securities that shall constitute a quorum.


 


Subject to the
foregoing, at the reconvening of any meeting adjourned for a lack of a quorum,
the Persons entitled to vote 25% in aggregate principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.


 


At a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid, any resolution and all matters (except as limited by the proviso to
Section 8.2 and except to the extent Section 10.12 requires a different vote)
shall be effectively passed and decided if passed or decided by the lesser of
(i) the Holders of not less than a majority in principal amount of


 


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Outstanding Securities and (ii)
the Persons entitled to vote not less than 662/3% in
aggregate principal amount of Outstanding Securities represented and entitled
to vote at such meeting.


 


Any resolution
passed or decisions taken at any meeting of Holders of Securities duly held in
accordance with this Section shall be binding on all the Holders of Securities
whether or not present or represented at the meeting. The Trustee shall, in the
name and at the expense of the Company, notify all the Holders of Securities of
any such resolutions or decisions pursuant to Section 1.6.


 


SECTION 9.5                     Determination of Voting
Rights; Conduct and Adjournment of Meetings.


 


(1)           Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
in regard to proof of the holding of Securities 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 deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be proved in
the manner specified in Section 1.4 or by having the signature of the Person
executing the proxy guaranteed by any bank, broker or other eligible
institution participating in a recognized medallion signature guarantee
program.


 


(2)           The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which
may be the Trustee) of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 9.2(2), in
which case the Company or the Holders of Securities 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 Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting.


 


(3)           At
any meeting, each Holder of a Security or proxy shall be entitled to one vote
for each U.S. $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security 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, except as a Holder of a Security or proxy.


 


(4)           Any
meeting of Holders of Securities duly called pursuant to Section 9.2 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in principal amount of the Outstanding Securities represented
at the meeting, and the meeting may be held as so adjourned without further
notice.


 


SECTION 9.6                     Counting Votes and
Recording Action of Meetings.


 


The vote upon any resolution
submitted to any meeting of Holders of Securities shall be by written ballots
on which shall be subscribed the signatures of the Holders of Securities or of
their


 


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representatives by proxy and
the principal amounts at Stated Maturity and serial numbers of the Outstanding
Securities 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 make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities 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 given as provided in
Section 9.2 and, if applicable, Section 9.4. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another 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.


 


ARTICLE X


COVENANTS


 


SECTION 10.1                   Payment of Principal,
Premium and Interest.


.


The Company covenants and
agrees that it will duly and punctually pay the principal of and premium, if
any, and interest (including Liquidated Damages, if any) on the Securities in
accordance with the terms of the Securities and this Indenture.


 


SECTION 10.2                   Maintenance of Offices or
Agencies.


 


The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Securities may be surrendered for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or
repurchase and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served, which shall initially be an
office or agency of the Trustee.  The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not designated or appointed by
the Trustee. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office or the office or agency of the Trustee in
the Borough of Manhattan, The City of New York.


 


The Company
may at any time and from time to time vary or terminate the appointment of any
such agent or appoint any additional agents for any or all of such purposes; provided,
however, that until all of the Securities have been delivered to the
Trustee for cancellation, or moneys sufficient to pay the principal of,
premium, if any, and interest on the Securities have been made available for
payment and either paid or returned to the Company pursuant to the provisions
of Section 10.3, the Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented or
surrendered for payment and conversion,


 


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which shall initially be Wells
Fargo Bank Minnesota, National Association office of the Trustee located at 45
Broadway, Twelfth Floor, MAC N2666-120, New York, New York 10006, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice
to the Trustee, and notice to the Holders in accordance with Section 1.6, of
the appointment or termination of any such agents and of the location and any
change in the location of any such office or agency.


 


The Company hereby initially
designates the Trustee as Paying Agent, Security Registrar and Conversion
Agent, and each of the Corporate Trust Office of the Trustee and the office or
agency of the Trustee in the Borough of Manhattan, The City of New York,
located at 45 Broadway, Twelfth Floor, MAC N2666-120, New York, New York 10006,
attention: Corporate Trust Operations (Micron Technology, Inc. 2.50%
Convertible Subordinated Notes due February 1, 2010) as one such office or
agency of the Company for each of the aforesaid purposes.


 


SECTION 10.3                   Money for Security
Payments to Be Held in Trust.


 


If the Company
shall act as its own Paying Agent, it will, on or before each due date of the
principal of, premium, if any, or interest on any of the Securities, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and the Company will promptly notify the Trustee of its action
or failure so to act.


 


Whenever the
Company shall have one or more Paying Agents, it will, no later than the
opening of business on each due date of the principal of, premium, if any, or
interest on any Securities, deposit with the Trustee a sum in funds immediately
payable on the payment date sufficient to pay the principal, premium, if any,
or interest so becoming due, such sum to be held for the benefit of the Persons
entitled to such principal, premium, if any, or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
any failure so to act.


 


The Company
will cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:


 


(1)           hold
all sums held by it for the payment of the principal of, premium, if any, or
interest on Securities for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided;


 


(2)           give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal, premium, if any, or
interest; and


 


(3)           at
any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held by such Paying
Agent.


 


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The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, premium, if any, or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security 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 all
liability of the Company as trustee thereof, shall thereupon cease.


 


SECTION 10.4                   Existence.


 


Subject to
Article VII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.


 


SECTION 10.5                   Maintenance of Properties.


 


The Company
will cause all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, and to
the extent, in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.


 


SECTION 10.6                   Payment of Taxes and Other
Claims.


 


The Company
will pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, (i) all taxes, assessments and governmental charges levied
or imposed upon the Company or upon the income, profits or property of the
Company and, (ii) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien or charge upon the property of the Company; provided,
however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a material adverse effect
on the business, properties, financial condition or results of operations of
the Company and its subsidiaries taken as a whole, or


 


69

















 


(B) if the
amount, applicability or validity of such tax, assessment, charge or claim is
being contested in good faith by appropriate proceedings.


 


SECTION 10.7                   Registration and Listing.


 


The Company
will effect all registrations with, and obtain all approvals by, all
governmental authorities that may be necessary under any United States Federal
or state law (including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) before the shares of Common Stock issuable upon
conversion of Securities are issued and delivered, and qualified or listed as
contemplated under the Registration Rights Agreement.


 


Nothing in
this Section will limit the application of Section 10.10.


 


SECTION 10.8                   Statement by Officers as
to Default.


 


The Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company ending after the date hereof, an Officers’ Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.


 


SECTION 10.9                   Delivery of Certain
Information.


 


At any time when the Company is
not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a
Holder of a Restricted Security or the holder of shares of Common Stock issued
upon conversion thereof, the Company will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such Holder of Restricted
Securities or such holder of shares of Common Stock issued upon conversion of
Restricted Securities, or to a prospective purchaser of any such security
designated by any such Holder or holder, as the case may be, to the extent
required to permit compliance by such Holder or holder with Rule 144A under the
Securities Act (or any successor provision thereto) in connection with the
resale of any such security; provided, however, that the Company
shall not be required to furnish such information in connection with any
request made on or after the date that is two years after the Issue Date.  “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).


 


SECTION 10.10                 Registration Rights.


 


The Company
agrees that the holders from time to time of Registrable Securities (as defined
below) are entitled to the benefits of a Registration Rights Agreement, dated
as of February 4, 2003 (the “Registration Rights Agreement”), executed by the
Company as it may be amended from time to time in accordance with its terms.


 


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Whenever in
this Indenture there is mentioned, in any context, the payment of interest in
respect of any Security, such mention shall be deemed to include mention of the
payment of Liquidated Damages provided for in this Section to the extent that,
in such context, Liquidated Damages are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of Liquidated Damages (if applicable) in any provisions hereof shall
not be construed as excluding Liquidated Damages in those provisions hereof
where such express mention is not made.


 


For the
purposes of the Registration Rights Agreement, “Registrable Securities” means
all or any portion of the Securities issued from time to time under this
Indenture in registered form and the shares of Common Stock issuable upon
conversion, repurchase or redemption of such Securities; except any such
Security or share of Common Stock that (i) has been effectively registered
under the Securities Act and sold in a manner contemplated by the Shelf
Registration Statement, (ii) has been transferred in compliance with
Rule 144 under the Securities Act (or any successor provision thereto) or
is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), or (iii) has otherwise been transferred and
a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with this Indenture.


 


If a Security,
or the shares of Common Stock issuable upon conversion of a Security, is a
Registrable Security, and the holder thereof elects to sell such Registrable
Security pursuant to the Shelf Registration Statement then, by its acceptance
thereof, the holder of such Registrable Security will have agreed to be bound
by the terms of the Registration Rights Agreement relating to the Registrable
Securities which are the subject of such election.


 


If Liquidated Damages are payable
under the Registration Rights Agreement, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of Liquidated
Damages that is payable and (ii) the date on which Liquidated Damages are
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 Liquidated Damages
are payable.  If Liquidated Damages have
been paid by the Company directly to the persons entitled to them, the Company
shall deliver to the Trustee a certificate setting forth the particulars of
such payment.


 


SECTION 10.11                 Waiver of Certain Covenants.


 


The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 10.5 and 10.6, inclusive (other than a covenant or condition which
under Article VIII cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected), if before the time for such
compliance the Holders shall, through (i) the written consent of not less than
a majority in principal amount of the Outstanding Securities or (ii) the
adoption of a resolution at a meeting of Holders of the Outstanding Securities
at which a quorum is present by the Holders of not less than 662/3%
in principal amount of the Outstanding Securities represented at such meeting,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except


 


71

















 


to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee or any Paying or Conversion Agent in
respect of any such covenant or condition shall remain in full force and
effect.


 


ARTICLE XI


REDEMPTION OF
SECURITIES


 


SECTION 11.1                   Right of Redemption.


 


The Securities
may be redeemed in accordance with the provisions of the form of Securities set
forth in Section 2.2.


 


SECTION 11.2                   Applicability of Article.


 


Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of the Securities or this Indenture, shall be made in
accordance with such provision and this Article XI.


 


SECTION 11.3                   Election to Redeem; Notice
to Trustee.


 


The election
of the Company to redeem any Securities shall be evidenced by a Board
Resolution. Subject to Section 11.5, in case of any redemption at the election
of the Company of any of the Securities, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date.


 


SECTION 11.4                   Selection by Trustee of
Securities to Be Redeemed.


 


If less than all the Securities
are to be redeemed, the particular Securities to be redeemed shall be selected
by the Trustee in principal amounts of $1,000 or integral multiples thereof by
lot or on a pro rata basis.


 


If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities that have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as Outstanding for the purpose of such selection.  The Trustee shall promptly notify the
Company and each Security Registrar in writing of the securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.


 


For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.


 


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SECTION 11.5                   Notice of Redemption.


 


Notice of
redemption shall be given in the manner provided in Section 1.6 to the Holders
of Securities to be redeemed not less than 20 nor more than 60 days prior to
the Redemption Date, and such notice shall be irrevocable.


 


All notices of
redemption shall state:


 


(1)           the
Redemption Date;


 


(2)           the
Redemption Price and accrued interest (including Liquidated Damages, if any)
to, but excluding, the Redemption Date;


 


(3)           if
less than all Outstanding Securities are to be redeemed, the aggregate
principal amount of Securities to be redeemed and the aggregate principal
amount of Securities which will be outstanding after such partial redemption;


 


(4)           that
on the Redemption Date the Redemption Price and accrued interest (including
Liquidated Damages, if any) to, but excluding, the Redemption Date, will become
due and payable upon each such Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date;


 


(5)           the
Conversion Rate, the date on which the right to convert the Securities to be
redeemed will terminate and the places where such Securities may be surrendered
for conversion; and


 


(6)           the
place or places where such Securities are to be surrendered for payment of the
Redemption Price and accrued interest (including Liquidated Damages, if any),
if any, to, but excluding, the Redemption Date.


 


In case of a
partial redemption, the notice shall specify the serial and CUSIP numbers (if
any) and the portions thereof called for redemption and that transfers and
exchanges may occur on or prior to the Redemption Date.


 


Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company’s written request, by the Trustee in the name of and
at the expense of the Company. Notice of redemption of Securities to be
redeemed at the election of the Company received by the Trustee shall be given
by the Trustee to each Paying Agent in the name of and at the expense of the
Company.


 


SECTION 11.6                   Deposit of Redemption
Price.


 


On or prior to
the Redemption Date, the Company shall deposit with the Trustee (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money (which shall be in immediately
available funds on such Redemption Date)


 


73

















 


sufficient to pay the
Redemption Price and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest (including Liquidated Damages, if any) to, but
excluding, the Redemption Date on all the Securities which are to be redeemed
on that date, other than any Securities called for redemption on that date
which have been converted prior to the date of such deposit.


 


If any
Security called for redemption is converted, any money deposited with the
Trustee or so segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of Section 3.7)
be returned to the Company on Company Request or, if then held by the Company,
shall be discharged from such trust.


 


SECTION 11.7                   Securities Payable on
Redemption Date.


 


Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price, including accrued interest) such Securities
shall cease to bear interest. Upon surrender of any Security for redemption in
accordance with said notice such Security shall be paid by the Company at the
Redemption Price together with accrued and unpaid interest (including
Liquidated Damages, if any) to, but excluding, the Redemption Date; provided,
however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the provisions of
Section 3.7.


 


If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal amount of, premium, if any, and, to the extent
permitted by applicable law, accrued interest on such Security shall, until
paid, bear interest from the Redemption Date at a rate of 2.50% per annum and
such Security shall remain convertible until the Redemption Price of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.


 


Any Security
that is to be redeemed only in part shall be surrendered at the Corporate Trust
Office or an office or agency of the Company designated for that purpose
pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.


 


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SECTION 11.8                   Conversion Arrangement on Call for Redemption.


 


In connection
with any redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities by an agreement with one or more investment
bankers or other purchasers (the “Purchasers”) to purchase such securities by
paying to the Trustee in trust for the Holders, on or before the Redemption
Date, an amount not less than the applicable Redemption Price, together with
interest accrued to, but excluding, the Redemption Date, of such Securities.
Notwithstanding anything to the contrary contained in this Article XI the
obligation of the Company to pay the Redemption Price, together with interest
accrued to, but excluding, the Redemption Date, shall be deemed to be satisfied
and discharged to the extent such amount is so paid by such Purchasers. If such
an agreement is entered into (a copy of which shall be filed with the Trustee
prior to the close of business on the Business Day immediately prior to the
Redemption Date), any Securities called for redemption that are not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, and consistent with
any agreement or agreements with such Purchasers, to be acquired by such Purchasers
from such Holders and (notwithstanding anything to the contrary contained in
Article XII) surrendered by such Purchasers for conversion, all as of
immediately prior to the close of business on the Redemption Date (and the
right to convert any such Securities shall be extended through such time),
subject to payment of the above amount as aforesaid. At the direction of the
Company, the Trustee shall hold and dispose of any such amount paid to it by
the Purchasers to the Holders in the same manner as it would monies deposited
with it by the Company for the redemption of Securities. Without the Trustee’s
prior written consent, no arrangement between the Company and such Purchasers
for the purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as
set forth in this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense arising out
of or in connection with any such arrangement for the purchase and conversion
of any Securities between the Company and such Purchasers, including the costs
and expenses, including reasonable legal fees, incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.


 


ARTICLE XII


CONVERSION OF SECURITIES


 


SECTION 12.1                   Conversion Privilege and
Conversion Rate.


 


Subject to and upon compliance
with the provisions of this Article, at the option of the Holder thereof, any
Security may be converted into fully paid and nonassessable shares (calculated
as to each conversion to the nearest 1/100th of a share) of Common Stock of the
Company at the Conversion Rate, determined as hereinafter provided, in effect
at the time of conversion.  Such
conversion right shall commence on the initial issuance date of the Securities
and expire at the close of business on the date of Maturity, subject, in the
case of conversion of any Global Security, to any Applicable Procedures. In
case a Security or portion thereof is called for redemption at the election of
the Company or the Holder thereof exercises its right to require the Company to
repurchase the Security, such conversion right in respect of the Security, or
portion thereof so called or submitted, shall expire at the close of business
on the Business Day immediately preceding the Redemption


 


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Date or the Repurchase Date, as
the case may be, unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be (in each case subject as aforesaid
to any Applicable Procedures with respect to any Global Security).


 


The rate at
which shares of Common Stock shall be delivered upon conversion (herein called
the “Conversion Rate”) shall be initially 84.8320 shares of Common Stock for
each U.S.$1,000 principal amount of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in this Article XII.


 


SECTION 12.2                   Exercise of Conversion Privilege.


 


In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security, duly endorsed in blank, at any office or agency
of the Company maintained for that purpose pursuant to Section 10.2,
accompanied by a duly signed conversion notice substantially in the form set
forth in Section 2.4 stating that the Holder elects to convert such Security
or, if less than the entire principal amount thereof is to be converted, the
portion thereof to be converted. Each Security surrendered for conversion (in
whole or in part) during the Record Date Period shall be accompanied by payment
in New York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of such Security (or part thereof, as the case may be) being
surrendered for conversion; provided, however, that no such
payment need be made in the case of any Security or portion thereof which has
been called for redemption on a Redemption Date, or is repurchasable on a
Repurchase Date, occurring, in either case, within the period from the close of
business on any Regular Record Date immediately preceding any Interest Payment
Date to the close of business on the third Business Day following such Interest
Payment Date and, as a result, the right to convert such Security would
otherwise terminate in such period if not exercised.  The interest so payable on such Interest Payment Date with
respect to any Security (or portion thereof, if applicable) that is surrendered
for conversion during the Record Date Period shall be paid to the Holder of
such Security as of such Regular Record Date in an amount equal to the interest
that would have been payable on such Security if such Security had been
converted as of the close of business on such Interest Payment Date.  Interest payable on any Interest Payment
Date in respect of any Security surrendered for conversion on or after such
Interest Payment Date shall be paid to the Holder of such Security as of the
Regular Record Date immediately preceding such Interest Payment Date,
notwithstanding the exercise of the right of conversion.  Except as provided in this paragraph and
subject to the last paragraph of Section 3.7, no cash payment or adjustment
shall be made upon any conversion on account of any interest accrued from the
Interest Payment Date next preceding the conversion date, in respect of any
Security (or part thereof, as the case may be) surrendered for conversion, or
on account of any dividends on the Common Stock issued upon conversion. The
Company’s delivery to the Holder of the number of shares of Common Stock (and
cash in lieu of fractions thereof, as provided in this Indenture) into which a
Security is convertible will be deemed to satisfy the Company’s obligation to
pay the principal amount of the Security.


 


Securities
shall be deemed to have been converted immediately prior to the close of
business on the day of surrender of such Securities for conversion in
accordance with the foregoing


 


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provisions, and at such time
the rights of the Holders of such Securities as Holders shall cease, and the
Person or Persons entitled to receive the Common Stock issuable upon conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock at such time. As promptly as practicable on or after the
conversion date, the Company shall issue and deliver to the Trustee, for
delivery to the Holder (unless a different Person is indicated on the
Conversion Notice), a certificate or certificates for the number of full shares
of Common Stock issuable upon conversion, together with payment in lieu of any
fraction of a share, as provided in Section 12.3.


 


All shares of
Common Stock delivered upon such conversion of Restricted Securities shall bear
restrictive legends substantially in the form of the legends required to be set
forth on the Restricted Securities pursuant to Section 3.5 and shall be subject
to the restrictions on transfer provided in such legends. Neither the Trustee
nor any agent maintained for the purpose of such conversion shall have any
responsibility for the inclusion or content of any such restrictive legends on
such Common Stock; provided, however, that the Trustee or any
agent maintained for the purpose of such conversion shall have provided, to the
Company or to the Company’s transfer agent for such Common Stock, prior to or
concurrently with a request to the Company to deliver such Common Stock,
written notice that the Securities delivered for conversion are Restricted
Securities.


 


In the case of
any Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the principal amount of such Security. A Security may be
converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of U.S. $1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.


 


If shares of
Common Stock to be issued upon conversion of a Restricted Security, or
Securities to be issued upon conversion of a Restricted Security in part only,
are to be registered in a name other than that of the beneficial owner of such
Restricted Security, then such Holder must deliver to the Conversion Agent a
Surrender Certificate, dated the date of surrender of such Restricted Security
and signed by such beneficial owner, as to compliance with the restrictions on
transfer applicable to such Restricted Security. Neither the Trustee nor any
Conversion Agent, Registrar or Transfer Agent shall be required to register in
a name other than that of the beneficial owner, shares of Common Stock or
Securities issued upon conversion of any such Restricted Security not so
accompanied by a properly completed Surrender Certificate.


 


SECTION 12.3                   Fractions of Shares.


 


No fractional shares of Common
Stock shall be issued upon conversion of any Security or Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock that would otherwise be issuable upon


 


77

















 


conversion of any Security or Securities
(or specified portions thereof), the Company shall calculate and pay a cash
adjustment in respect of such fraction (calculated to the nearest 1/100th of a
share) in an amount equal to the same fraction of the Closing Price Per Share
at the close of business on the day of conversion.


 


SECTION 12.4                   Adjustment of Conversion Rate.


 


The Conversion
Rate shall be subject to adjustments from time to time as follows:


 


(1)           In
case the Company shall pay or make a dividend or other distribution on shares
of Common Stock payable in shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. If, after any such date
fixed for determination, any dividend or distribution is not in fact paid, the
Conversion Rate shall be immediately readjusted, effective as of the date the
Board of Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would have been in effect if such determination date had
not been fixed. For the purposes of this paragraph (1), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.


 


(2)           In
case the Company shall issue rights, options or warrants to all holders of its
Common Stock entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (determined
as provided in paragraph (8) of this Section 12.4) of the Common Stock on the
date fixed for the determination of stockholders entitled to receive such
rights, options or warrants (other than any rights, options or warrants that by
their terms will also be issued to any Holder upon conversion of a Security into
shares of Common Stock without any action required by the Company or any other
Person), the Conversion Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Conversion Rate by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock that the
aggregate of the offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. If, after
any such date fixed for determination, any such rights, options or warrants are
not in fact issued, or are not


 


78

















 


exercised prior to the
expiration thereof, the Conversion Rate shall be immediately readjusted,
effective as of the date such rights, options or warrants expire, or the date
the Board of Directors determines not to issue such rights, options or
warrants, to the Conversion Rate that would have been in effect if the
unexercised rights, options or warrants had never been granted or such
determination date had not been fixed, as the case may be.  For the purposes of this paragraph (2), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.  The Company will not issue any
rights, options or warrants in respect of shares of Common Stock held in the
treasury of the Company.


 


(3)           In
case outstanding shares of Common Stock shall be subdivided into a greater
number of shares of Common Stock, the Conversion Rate in effect at the opening
of business on the day following the day upon which such subdivision becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such subdivision or
combination becomes effective shall be proportionately reduced, such increase
or reduction, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.


 


(4)           In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares of any class of capital
stock or other property (including cash or assets or securities, but excluding (i)
any rights, options or warrants referred to in paragraph (2) of this Section,
(ii) any dividend or distribution paid exclusively in cash, (iii) any dividend
or distribution referred to in paragraph (1) of this Section 12.4 and (iv) any
consideration distributed in any merger or consolidation to which Section 12.11
applies (the “Distributed Assets”)), the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by dividing the Conversion Rate
in effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (8) of this Section 12.4) of the Common
Stock on the date fixed for such determination less the then fair market value
(as determined by the Board of directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of the
portion of the assets, shares or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
distribution; provided, however, that if the Distributed Assets
consist of shares of capital stock of a Subsidiary, the Company may, at its
option and in lieu of the foregoing adjustment, elect to make adequate
provision so that each Holder of Securities shall have the right to receive,
upon conversion of the Securities, the amount of such shares of capital stock
of such Subsidiary that such Holder of Securities would have received if such
Holder had converted such Securities immediately prior to the record date for
determining the shareholders entitled to receive the distribution of such
Distributed Assets.  If after any such
date fixed for determination, any such distribution is not in fact made, the
Conversion Rate shall be


 


79

















 


immediately readjusted,
effective as of the date of the Board of Directors determines not to make such
distribution, to the Conversion Rate that would have been in effect if such
determination date had not been fixed. 
In the event that the fair market value of Distributed Assets,
applicable to one share of Common Stock, distributed to stockholders (1) equals
or exceeds the current market price of the Common Stock, or (2) such current
market price exceeds the fair market value of such Distributed Assets so
distributed by less than $1.00, then, in lieu of an adjustment in the
Conversion Rate, the Holder of a Security will be entitled to receive upon
conversion of a Security, in addition to shares of Common Stock, the kind and
amount of Distributed Assets that such Holder would have received if such
Holder had converted such Security immediately prior to the record date for
determining the stockholders entitled to receive the distribution.


 


(5)           In
case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock cash (excluding any cash that is distributed as part of a
distribution referred to in paragraph (4) of this Section or cash distributed
upon a merger or consolidation to which Section 12.11 applies) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
all-cash distributions to all holders of its Common Stock made exclusively in
cash within the twelve-month period preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this paragraph
(5) has been made and (II) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of other consideration payable
in respect of any tender offer by the Company or any of its Subsidiaries for
all or any portion of the Common Stock concluded within the twelve-month period
preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the
“combined cash and tender amount”) exceeds 10% of the product of the current
market price per share (determined as provided in paragraph (8) of this Section
12.4) of the Common Stock on the date for the determination of holders of
shares of Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date (the “aggregate current market
price”), then, and in each such case, immediately after the close of business
on such date for determination, the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Conversion Rate in
effect immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by a
fraction (i) the numerator of which shall be equal to the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for such determination less an amount equal to
the quotient of (x) the excess of such combined cash and tender amount over 10%
of such aggregate current market price divided by (y) the number of shares of
Common Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section 12.4) of the Common
Stock on such date fixed for determination.


 


(6)           In
case a tender offer made by the Company or any Subsidiary for all or any
portion of the Common Stock shall expire and such tender offer (as amended upon
the expiration thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the tender offer) of
Purchased Shares (as defined below)) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose determination
shall be


 


80

















 


conclusive and described in a
Board Resolution) that together with (I) the aggregate of the cash plus the
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), as of the expiration
of such tender offer, of other consideration payable in respect of any other
tender offer by the Company or any Subsidiary for all or any portion of the
Common Stock expiring within the twelve month period preceding the expiration
of such tender offer and in respect of which no adjustment pursuant to this
paragraph (6) has been made and (II) the aggregate amount of any cash distributions
to all holders of the Common Stock within the twelve month period preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to paragraph (5) of this Section has been made (the “combined tender and cash
amount”) exceeds 10% of the product of the current market price per share of
the Common Stock (determined as provided in paragraph (8) of this Section 12.4)
as of the last time (the “Expiration Time”) tenders could have been made
pursuant to such tender offer (as it may be amended) times the number of shares
of Common Stock outstanding (including any tendered shares) as of the
Expiration Time, then, and in each such case immediately prior to the opening
of business on the day after the date of the Expiration Time, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to close of business on the date
of the Expiration Time by a fraction (i) the numerator of which shall be equal
to (A) the product of (I) the current market price per share of the Common
Stock (determined as provided in paragraph (8) of this Section 12.4) on the
date of the Expiration Time multiplied by (II) the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration Time less
(B) the combined tender and cash amount, and (ii) the denominator of which
shall be equal to the product of (A) the current market price per share of the
Common Stock (determined as provided in paragraph (8) of this Section 12.4) as
of the Expiration Time multiplied by (B) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being referred to
as the “Purchased Shares”).


 


(7)           The
reclassification of Common Stock into securities other than Common Stock (other
than any reclassification upon a consolidation or merger to which Section 12.11
applies) shall be deemed to involve (a) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be “the date fixed for the
determination of stockholders entitled to receive such distribution” and “the
date fixed for such determination” within the meaning of paragraph (4) of this
Section), and (b) a subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall
be deemed to be “the day upon which such subdivision becomes effective” or “the
day upon which such combination becomes effective”, as the case may be, and
“the day upon which such subdivision or combination becomes effective” within
the meaning of paragraph (3) of this Section 12.4).


 


(8)           For
the purpose of any computation under paragraphs (2), (4), (5) or (6) of this
Section 12.4, the current market price per share of Common Stock on any date
shall be calculated by the Company and be the average of the daily Closing
Prices Per Share for the five consecutive


 


81

















 


Trading Days selected by the
Company commencing not more than 10 Trading Days before, and ending not later
than the earlier of the day in question and the day before the “ex date” with
respect to the issuance or distribution requiring such computation. For
purposes of this paragraph, the term “‘ex date”, when used with respect to any
issuance or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable securities
exchange without the right to receive such issuance or distribution.


 


(9)           No
adjustment in the Conversion Rate shall be required unless such adjustment
(plus any adjustments not previously made by reason of this paragraph (9))
would require an increase or decrease of at least one percent in such rate; provided,
however, that any adjustments which by reason of this paragraph (9) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.


 


(10)         The
Company may make such increases in the Conversion Rate, for the remaining term
of the Securities or any shorter term, in addition to those required by
paragraphs (1), (2), (3), (4), (5) and (6) of this Section 12.4, as it
considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase or subscribe for stock
or from any event treated as such for income tax purposes. The Company shall
have the power to resolve any ambiguity or correct any error in this paragraph
(10) and its actions in so doing shall, absent manifest error, be final and
conclusive.


 


(11)         Notwithstanding
the foregoing provisions of this Section, no adjustment of the Conversion Rate
shall be required to be made (a) upon the issuance of shares of Common Stock
pursuant to any present or future plan for the reinvestment of dividends or (b)
because of a tender or exchange offer of the character described in Rule
13e-4(h)(5) under the Exchange Act or any successor rule thereto.


 


(12)         To
the extent permitted by applicable law, the Company from time to time may
increase the Conversion Rate by any amount for any period of time if the period
is at least twenty (20) days, the increase is irrevocable during such period,
and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be
conclusive; provided, however, that no such increase shall be
taken into account for purposes of determining whether the Closing Price Per
Share of the Common Stock equals or exceeds 110% of the Conversion Price in
connection with an event which would otherwise be a Change in Control pursuant
to Section 14.4.  Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company
shall give notice of the increase to the Holders in the manner provided in
Section 1.6 at least fifteen (15) days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.


 


Notwithstanding
anything in this Section 12.4, if at any time the Company shall distribute
shares of common stock of any Subsidiary to all holders of the Company’s Common
Stock, the Company may


 


82

















 


elect to reserve a pro rata
portion of such distribution for the benefit of the Holders of the Securities
in lieu of adjusting the Conversion Price pursuant to the terms hereof.


 


SECTION 12.5                   Notice of Adjustments of Conversion Rate.


 


Whenever the
Conversion Rate is adjusted as herein provided:


 


(1)           the
Company shall compute the adjusted Conversion Rate in accordance with Section
12.4 and shall prepare a certificate signed by the Chief Financial Officer of
the Company setting forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall promptly be filed with the Trustee and with each Conversion
Agent; and


 


(2)           upon
each such adjustment, a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall be required, and
as soon as practicable after it is required, such notice shall be provided by
the Company to all Holders in accordance with Section 1.6.


 


Neither the Trustee nor any
Conversion Agent shall be under any duty or responsibility with respect to any
such certificate or the information and calculations contained therein, except
to exhibit the same to any Holder of Securities desiring inspection thereof at
its office during normal business hours, and shall not be deemed to have
knowledge of any adjustment in the Conversion Rate unless and until a
Responsible Officer of the Trustee shall have received such a certificate.  Until a Responsible Officer of the Trustee
receives such a certificate, the Trustee and each Conversion Agent may assume
without inquiry that the last Conversion Rate of which the Trustee has
knowledge of remains in effect.


 


SECTION 12.6                   Notice of Certain Corporate Action.


 


In case:


 


(1)           the
Company shall declare a dividend (or any other distribution) on its Common
Stock payable (i) otherwise than exclusively in cash or (ii) exclusively in
cash in an amount that would require any adjustment pursuant to Section 12.4;
or


 


(2)           the
Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or


 


(3)           of
any reclassification of the Common Stock, or of any consolidation, merger or
share exchange to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance, sale, transfer
or lease of all or substantially all of the assets of the Company; or


 


83

















 


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


 


then the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.2, and shall cause
to be provided to all Holders in accordance with Section 1.6, at least 20 days
(or 10 days in any case specified in clause (1) or (2) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, sale, lease,
dissolution, liquidation or winding up. Neither the failure to give such notice
or the notice referred to in the following paragraph nor any defect therein
shall affect the legality or validity of the proceedings described in clauses
(1) through (4) of this Section 12.6. If at the time the Trustee shall not be
the conversion agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.


 


The Company shall cause to be
filed at the Corporate Trust Office and each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.2, and shall
cause to be provided to all Holders in accordance with Section 1.6, notice of
any tender offer by the Company or any Subsidiary for all or any portion of the
Common Stock at or about the time that such notice of tender offer is provided
to the public generally.


 


SECTION 12.7                   Company to Reserve Common Stock.


 


The Company shall at all times
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the
conversion of all Outstanding Securities.


 


SECTION 12.8                   Taxes on Conversions.


 


Except as provided
in the next sentence, the Company will pay any and all taxes and duties that
may be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any tax or duty that may be payable in respect of
(i) income of the Holder, or (ii) any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.


 


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SECTION 12.9                   Covenant as to Common Stock.


 


The Company
agrees that all shares of Common Stock that may be delivered upon conversion of
Securities, upon such delivery, will have been duly authorized and validly
issued and will be fully paid and nonassessable and, except as provided in
Section 12.8, the Company will pay all taxes, liens and charges with respect to
the issue thereof.


 


SECTION 12.10                 Cancellation of Converted
Securities.


 


All Securities
delivered for conversion shall be delivered to the Trustee or its agent to be
canceled by or at the direction of the Trustee, which shall dispose of the same
as provided in Section 3.9.


 


SECTION 12.11                 Provision in Case of Consolidation, Merger or
Sale of Assets.


 


In case of any
consolidation or merger of the Company with or into any other Person, any
merger of another Person with or into the Company (other than a merger that
does not result in any reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the Company) or any conveyance, sale,
transfer or lease of all or substantially all of the assets of the Company
(other than a sale of all or substantially all of the assets of the Company
that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 12.1, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer or lease by a
holder of the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease, assuming such holder of Common
Stock of the Company (i) is not (A) a Person with which the Company
consolidated or merged with or into or which merged into or with the Company or
to which such conveyance, sale, transfer or lease was made, as the case may be
(a “Constituent Person”), or (B) an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, sale, transfer, or lease is not the same for each share of Common
Stock of the Company held immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease by others than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not
have been exercised (“Non-electing Share”), then for the purpose of this
Section 12.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease
by the holders of each Non-electing Share shall be deemed to be the kind and
amount so receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be


 


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as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.6 promptly upon such
execution.


 


Neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property or cash receivable by Holders of Securities upon the conversion of
their Securities after any such consolidation, merger, conveyance, transfer,
sale or lease or to any such adjustment, but may accept as conclusive evidence
of the correctness of any such provisions, and shall be protected in relying
upon, an Opinion of Counsel with respect thereto, which the Company shall cause
to be furnished to the Trustee upon request.


 


SECTION 12.12                 Rights Issued in Respect of
Common Stock.


 


Rights or warrants distributed
by the Company to all holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”):


 


(i)    are deemed to be transferred with such
shares of Common Stock;


 


(ii)   are not exercisable; and


 


(iii)  are also issued in respect of future issuances
of Common Stock


 


shall not be deemed distributed
for purposes of Section 12.4(2) until the occurrence of the earliest Trigger
Event.  In addition, in the event of any
distribution of rights or warrants, or any Trigger Event with respect thereto,
that shall have resulted in an adjustment to the Conversion Rate under Section
12.4(2), (1) in the case of any such rights or warrants that shall all have
been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such
rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of any such rights or warrants all of which
shall have expired without exercise by any holder thereof, the Conversion Price
shall be readjusted as if such issuance had not occurred.


 


SECTION 12.13                 Responsibility of Trustee for Conversion
Provisions.


 


The Trustee,
subject to the provisions of Section 6.1, and any Conversion Agent shall not at
any time be under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the Conversion
Rate, or with respect to the nature or


 


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extent of any such adjustment
when made, or with respect to the method employed, herein or in any
supplemental indenture provided to be employed, in making the same, or whether
a supplemental indenture need be entered into. Neither the Trustee, subject to
the provisions of Section 6.1, nor any Conversion Agent shall be accountable with
respect to the validity or value (or the kind or amount) of any Common Stock,
or of any other securities or property or cash, which may at any time be issued
or delivered upon the conversion of any Security; and it or they do not make
any representation with respect thereto. Neither the Trustee, subject to the
provisions of Section 6.1, nor any Conversion Agent shall be responsible for
any failure of the Company to make or calculate any cash payment or to issue,
transfer or deliver any shares of Common Stock or share certificates or other
securities or property or cash upon the surrender of any Security for the
purpose of conversion; and the Trustee, subject to the provisions of Section
6.1, and any Conversion Agent shall not be responsible for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article.


 


ARTICLE XIII


SUBORDINATION
OF SECURITIES


 


SECTION 13.1                   Securities Subordinate to Senior Debt.


 


The Company covenants and agrees, and each
Holder of a Security, by its acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article,
the indebtedness represented by the Securities and the payment of the principal
of, premium, if any, and interest (including Liquidated Damages, if any) on
each and all of the Securities or on account of the repurchase or redemption of
the Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt.  Notwithstanding the foregoing, this Article
XIII shall not apply to the application of any amounts deposited with the
Trustee or any Paying Agent pursuant to Article IV that at the time such
amounts were deposited with the Trustee or Paying Agent, as the case may be,
such deposits were not prohibited by the provisions of this Article XIII
(“Previous Payments”).


 


The expressions “prior payment in full,”
“payment in full” and “paid in full” and any other similar term or phrase when
used in this Article XIII with respect to Senior Debt shall mean in the case of
Senior Debt consisting of contingent obligations the setting apart of cash or
other payment acceptable to holders of such Senior Debt sufficient to discharge
such portion of Senior Debt in an account for the exclusive benefit of the
holders thereof, in which account such holders shall be granted by the Company
a first priority perfected security interest, which first priority perfected
security interest shall have been retained by the holders of Senior Debt for a
period of time in excess of all applicable preference or other similar periods,
if any, under applicable bankruptcy, insolvency or creditors' rights laws.


 


SECTION 13.2                   Payment Over of Proceeds Upon Dissolution, Etc.


 


In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation,
reorganization, debt restructuring or other similar case or proceeding in
connection


 


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therewith, relative to the
Company or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshaling of
assets and liabilities of the Company, then and in any such event the holders
of Senior Debt shall be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior Debt in cash or other payment
satisfactory to the holders of Senior Debt before the Holders of the Securities
are entitled to receive any payment on account of principal of, or any premium
or interest (including Liquidated Damages, if any) on, the Securities or on
account of the repurchase or redemption on the Securities (other than Previous
Payments), and to that end the holders of Senior Debt or their representative
or representatives or the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Debt may have been issued shall
be entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Securities in any such
case, proceeding, dissolution, liquidation or other winding up or event, to the
extent necessary to pay all Senior Debt in full in cash or other payment
satisfactory to the holders of Senior Debt, after giving effect to any
concurrent payment or distribution to or for the holders of other Senior Debt.


 


In the event that, notwithstanding the
foregoing provisions of this Section, the Trustee or the Holder of any Security
shall have received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, before all Senior
Debt is paid in full in cash or other payment satisfactory to the holders of
Senior Debt, then and in such event such payment or distribution shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.


 


For purposes of this Article XIII only, the
words “cash, property or securities” shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the Company
or any other corporation provided for by a plan of reorganization or
readjustment which are subordinated in right of payment to all Senior Debt
which may at the time be outstanding to substantially the same extent as, or to
a greater extent than, the Securities are so subordinated as provided in this
Article. The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in
Article VII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or
which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VII.


 


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SECTION 13.3                   Prior Payment to Senior Debt Upon Acceleration
of Securities.


 


In the event that any Securities are declared
due and payable before their Stated Maturity, then and in such event the
holders of the Senior Debt outstanding at the time such Securities so become
due and payable shall be entitled to receive payment in full in cash or other
payment satisfactory to the holders of Senior Debt of all amounts due or to
become due on or in respect of all Senior Debt before the Holders of the
Securities are entitled to receive any payment by the Company on account of the
principal of or any premium or interest (including Liquidated Damages, if any)
on the Securities or on account of the repurchase or redemption on the
Securities (other than Previous Payments). 
If the payment of Securities is accelerated because of an Event of
Default, the Company and the Trustee shall promptly notify holders of Senior
Debt of the acceleration.


 


In the event that, notwithstanding the
foregoing, the Company shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such payment, have been made known
to the Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.


 


The provisions of this Section shall not
apply to any payment with respect to which Section 13.2 would be
applicable.


 


SECTION 13.4                   No Payment in Certain Circumstances.


 


The Company may not make any payment of
principal of, or premium, if any, or interest (including Liquidated Damages, if
any) on the Securities or on account of the repurchase or redemption on the
Securities (other than Previous Payments), if:


 


(i)      a
default in the payment of principal, premium, if any, or interest (including a
default under any redemption or repurchase obligation) or other amounts with
respect to any Senior Debt occurs and is continuing (or, in the case of Senior
Debt for which there is a period of grace, in the event of such a default that
continues beyond the period of grace, if any, specified in the instrument or
lease evidencing such Senior Debt) unless and until such default shall have
been cured or waived or shall have ceased to exist; or


 


(ii)     a
default, other than a payment default, on any Designated Senior Debt occurs and
is continuing that then permits holders of such Designated Senior Debt to
accelerate its maturity and the Trustee receives a notice of the default (a
“Payment Blockage Notice”) from the Company, a holder of such Designated Senior
Debt or a Representative of such Designated Senior Debt. 


 


If the Trustee receives any Payment Blockage
Notice pursuant to clause (ii) above, no subsequent Payment Blockage Notice
shall be effective for purposes of this Section unless and until at least 365
days shall have elapsed since the initial effectiveness of the immediately
prior Payment Blockage Notice.  No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice.


 


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The Company may and shall resume payments on
and distributions in respect of the Securities and may repurchase or redeem on
the Securities, upon the earlier of:


 


(1)           in
the case of a default referred to in clause (i) above, the date upon which the
default is cured or waived or ceases to exist, or


 


(2)           in
the case of a default referred to in clause (ii) above, upon the earlier of (A)
when the default is cured, waived or ceases to exist, or (B) 179 days pass
after the Payment Blockage Notice is received,


 


unless this Article XIII otherwise prohibits
the payment, distribution, repurchase or redemption at the time of such payment
at the time of such payment, distribution, repurchase or redemption (including,
without limitation, in the case of a default referred to in clause (ii) above,
as a result of a payment default with respect to the applicable Senior Debt as
a consequence of the acceleration of the maturity thereof or otherwise).


 


In the event that, notwithstanding the
foregoing, the Company shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this Section, and if
such fact shall, at or prior to the time of such payment, have been made known
to the Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.


 


The provisions of this Section shall not
apply to any payment with respect to which Section 13.2 would be
applicable.


 


SECTION 13.5                   Payment
Permitted if No Default.


 


Nothing contained in this Article or
elsewhere in this Indenture or in any of the Securities shall prevent
(a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, debt restructuring,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 13.2 or under the
conditions described in Section 13.3 or 13.4, from making payments at any
time of principal of and any premium or interest (including Liquidated Damages,
if any) on the Securities or on account of the repurchase or redemption of
Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of and any
premium or interest (including Liquidated Damages, if any) on the Securities or
on account of the repurchase or redemption of Securities or the retention of
such payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge that such payment would have been prohibited
by the provisions of this Article.


 


SECTION 13.6                   Subrogation to Rights of Holders of Senior Debt.


 


Subject to the payment in full of all Senior
Debt, the Holders of the Securities shall be subrogated to the rights of the
holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
and any premium and interest (including Liquidated Damages, if any) on the
Securities shall be paid in full. For


 


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purposes of such subrogation,
no payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of
the Senior Debt.


 


SECTION 13.7                   Provisions Solely to Define Relative Rights.


 


The provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Senior Debt on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Securities the principal of and any premium and interest
(including Liquidated Damages, if any) on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Debt; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior Debt
to receive cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder.


 


SECTION 13.8                   Trustee to Effectuate Subordination.


 


Each Holder of a Security by its acceptance
thereof authorizes and directs the Trustee on its behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee its attorney-in-fact for any
and all such purposes.


 


SECTION 13.9                   No Waiver of Subordination Provisions.


 


No right of any present or future holder of
any Senior Debt to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.


 


Without in any way limiting the generality of
the foregoing paragraph, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt, or otherwise amend or supplement in any manner Senior Debt
or any instrument


 


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evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise dispose of any property pledged, mortgaged or otherwise securing
Senior Debt; (iii) release any Person liable in any manner for the collection
of Senior Debt; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.


 


SECTION 13.10                 Notice to Trustee.


 


The Company shall give prompt written notice
to the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Debt or from any trustee or
other Representative therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.1, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section by at least 12:00 noon New York City time one Business Day prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of and any
premium or interest (including Liquidated Damages, if any) on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it after 12:00 noon New
York City time one Business Day prior to such date.


 


Subject to the provisions of
Section 6.1, the Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Senior
Debt (or a trustee or other Representative therefor) to establish that such
notice has been given by a holder of Senior Debt (or a trustee or other
Representative therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article XIII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XIII, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.


 


SECTION 13.11                 Reliance on Judicial Order or Certificate of
Liquidating Agent.


 


Upon any payment or distribution of assets of
the Company referred to in this Article, the Trustee, subject to the provisions
of Section 6.1, and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating


 


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trustee, custodian, assignee
for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XIII.


 


SECTION 13.12                 Trustee Not Fiduciary for Holders of Senior Debt.


 


The Trustee, in its capacity as trustee under
this Indenture, shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.


 


SECTION 13.13                 Rights of Trustee as Holder
of Senior Debt; Preservation of Trustee’s Rights.


 


The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.


 


Nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.7.


 


SECTION 13.14                 Article Applicable to Paying Agents.


 


In case at any time any Paying Agent other
than the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or
in place of the Trustee; provided, however, that
Section 13.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.


 


SECTION 13.15                 Obligations
of Company and Right to Convert Unconditional.


 


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


 


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respect of cash, property or
securities of the Company received upon the exercise of any such remedy.


 


Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article XII (if applicable).


 


SECTION 13.16                 Reliance by Holders of Senior Debt on
Subordination Provisions.


 


Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Securities, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders of Senior Debt unless such holders shall have agreed in
writing hereto.


 


SECTION 13.17                 Certain Conversions and Repurchases Deemed
Payment.


 


For the
purposes of this Article XIII only, (i) the issuance and delivery of junior
securities upon conversion of Securities in accordance with Article XII or upon
the repurchase of Securities in accordance with Article XIV shall not be deemed
to constitute a payment or distribution on account of the principal of or
premium or interest (including Liquidated Damages, if any) on Securities or on
account of the purchase or other acquisition of Securities, and (ii) the
payment, issuance or delivery of cash (except in satisfaction of fractional
shares pursuant to Section 12.3 or 14.3(7)), property or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute
payment on account of the principal of such Security. For the purposes of this
Section, the term “junior securities” means (a) shares of any stock of any
class of the Company and securities into which the Securities are convertible
pursuant to Article XII and (b) securities of the Company which are
subordinated in right of payment to all Senior Debt that may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article XIII.  Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of the Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article XII or to exchange such Security for Applicable Stock
in accordance with Article XIV if the Company elects to satisfy the obligations
under Article XIV by the delivery of Applicable Stock.


 


94

















 


ARTICLE XIV


REPURCHASE OF SECURITIES AT THE OPTION OF THE


HOLDER UPON A CHANGE IN CONTROL


 


SECTION 14.1                   Right to Require
Repurchase.


 


In the event
that a Change in Control (as defined in Section 14.2) shall occur, then each
Holder shall have the right, at the Holder’s option, but subject to the
provisions of Section 14.2, to require the Company to repurchase, and upon the
exercise of such right the Company shall repurchase, all of such Holder’s
Securities not theretofore called for redemption, or any portion of the
principal amount thereof that is equal to U.S. $1,000 or any integral multiple
of U.S. $1,000 in excess thereof (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such Security
to be Outstanding after such repurchase is equal to U.S. $1,000 or integral
multiples of U.S. $1,000 in excess thereof), on the date (the “Repurchase
Date”) that is 30 days after the date of the Company Notice (as defined in
Section 14.3) at a purchase price equal to 100% of the principal amount of the
Securities to be repurchased plus interest (including Liquidated Damages, if
any) accrued to, but excluding, the Repurchase Date (the “Repurchase Price”); provided,
however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Repurchase Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on the relevant Record Date according to their terms and the provisions of
Section 3.7. Such right to require the repurchase of the Securities shall not
continue after a discharge of the Company from its obligations with respect to
the Securities in accordance with Article IV, unless a Change in Control shall have
occurred prior to such discharge. At the option of the Company, the Repurchase
Price may be paid in cash or, subject to the fulfillment by the Company of the
conditions set forth Section 14.2, by delivery of shares of Applicable Stock
having a fair market value equal to the Repurchase Price. Whenever in this
Indenture (including Sections 2.2, 3.1, 5.1(1) and 5.8) there is a reference,
in any context, to the principal of any Security as of any time, such reference
shall be deemed to include reference to the Repurchase Price payable in respect
of such Security to the extent that such Repurchase Price is, was or would be
so payable at such time, and express mention of the Repurchase Price in any
provision of this Indenture shall not be construed as excluding the Repurchase
Price in those provisions of this Indenture when such express mention is not
made; provided, however, that for the purposes of Article XIII
such reference shall be deemed to include reference to the Repurchase Price
only to the extent the Repurchase Price is payable in cash.


 


SECTION 14.2                                                          Conditions
to the Company’s Election to Pay the Repurchase Price in Applicable Stock.


 


The Company
may elect to pay the Repurchase Price by delivery of shares of Applicable Stock
pursuant to Section 14.1 if and only if the following conditions shall have
been satisfied:


 


(1)           The
shares of Applicable Stock deliverable in payment of the Repurchase Price shall
have a fair market value as of the Repurchase Date of not less than the
Repurchase Price. For


 


95

















 


purposes of Section 14.1 and
this Section 14.2, the fair market value of shares of Common Stock shall be
determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share of the Applicable Stock for the five consecutive
Trading Days immediately preceding the second Trading Day prior to the
Repurchase Date;


 


(2)           The
Repurchase Price shall be paid only in cash in the event any shares of
Applicable Stock to be issued upon repurchase of Securities hereunder (i)
require registration under any federal securities law before such shares may be
freely transferable without being subject to any transfer restrictions under
the Securities Act upon repurchase and if such registration is not completed or
does not become effective prior to the Repurchase Date, and/or (ii) require
registration with or approval of any governmental authority under any state law
or any other federal law before such shares may be validly issued or delivered
upon repurchase and if such registration is not completed or does not become
effective or such approval is not obtained prior to the Repurchase Date;


 


(3)           Payment
of the Repurchase Price may not be made in Applicable Stock unless such stock
is, or shall have been listed on a national securities exchange or approved for
quotation on the Nasdaq National Market, in either case, prior to the
Repurchase Date; and


 


(4)           All
shares of Applicable Stock that may be issued upon repurchase of Securities
will be issued out of the Company’s authorized but unissued Common Stock or, in
the event of a merger, consolidation, or other similar transaction involving
the Company that is otherwise permitted under the terms of this Indenture in
which the Company is not the surviving corporation, out of the authorized but
unissued common stock, common equity interests, ordinary shares or American
Depositary Shares of the surviving corporation or its direct or indirect parent
corporation and, will upon issue, be duly and validly issued and fully paid and
non-assessable and free of any preemptive or similar rights.


 


If all of the
conditions set forth in this Section 14.2 are not satisfied in accordance with
the terms thereof, the Repurchase Price shall be paid by the Company only in
cash.


 


SECTION 14.3                   Notices; Method of
Exercising Repurchase Right, Etc.


 


(1)           Unless the Company shall have
theretofore called for redemption all of the Outstanding Securities, on or
before the 30th day after the occurrence of a Change in Control, the Company
or, at the request and expense of the Company on or before the 15th day after
such occurrence, the Trustee, shall give to all Holders of Securities, in the
manner provided in Section 1.6, notice (the “Company Notice”) of the occurrence
of the Change in Control and of the repurchase right set forth herein arising
as a result thereof.  The Company shall
also deliver a copy of such Company Notice to the Trustee.


 


Each Company
Notice shall state:


 


(i)            the Repurchase Date;


 


(ii)           the date by which the repurchase
right must be exercised;


 


96

















 


(iii)          the Repurchase Price, and whether the
Repurchase Price shall be paid by the Company in cash or by delivery of shares
of Applicable Stock;


 


(iv)          a description of the procedure that a
Holder must follow to exercise a repurchase right, and the place or places
where such Securities are to be surrendered for payment of the Repurchase Price
and accrued interest (including Liquidated Damages, if any), if any to the
Repurchase Date;


 


(v)           that on the Repurchase Date the
Repurchase Price, and accrued interest (including Liquidated Damages, if any),
if any to the Repurchase Date, will become due and payable upon each such
Security designated by the Holder to be repurchased, and that interest thereon
shall cease to accrue on and after said date;


 


(vi)          the Conversion Rate then in effect,
the date on which the right to convert the principal amount of the Securities
to be repurchased will terminate and the place or places where such Securities
may be surrendered for conversion;


 


(vii)         the place or places that the Security
certificate with the Election of Holder to Require Repurchase as specified in
Section 2.2 shall be delivered, and if the Security is a Restricted Securities
Certificate the place or places that the Surrender Certificate required by
Section 14.3(9) shall be delivered; and


 


(viii)        the Holder’s right to withdraw a
completed Company Notice and the procedures for withdrawing a Company Notice
pursuant to clause (2) below.


 


No failure of
the Company to give the foregoing notices or defect therein shall limit any
Holder’ s right to exercise a repurchase right or affect the validity of the
proceedings for the repurchase of Securities.


 


If any of the
foregoing provisions or other provisions of this Article XIV are inconsistent
with applicable law, such law shall govern.


 


(2)           To
exercise a repurchase right, a Holder shall deliver to the Trustee on or before
the second Business Day immediately preceding the 30th day after the date of
the Company Notice (i) written notice of the Holder’s exercise of such right,
which notice shall set forth the name of the Holder, the principal amount of
the Securities to be repurchased (and, if any Security is to repurchased in
part, the serial number thereof, the portion of the principal amount thereof to
be repurchased and the name of the Person in which the portion thereof to
remain Outstanding after such repurchase is to be registered) and a statement
that an election to exercise the repurchase right is being made thereby, and,
in the event that the Repurchase Price shall be paid in shares of Applicable
Stock, the name or names (with addresses) in which the certificate or
certificates for shares of Applicable Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is being exercised.  Notwithstanding anything in this Indenture
to the contrary, any Holder which has delivered a completed Company Notice to
the Trustee shall have the right to


 


97

















 


withdraw such Company Notice by
delivery of a written notice of withdrawal delivered to the Corporate Trust
Office of the Trustee in accordance with the Company Notice at any time prior
to the close of business on the second Business Day immediately preceding the
Repurchase Date specifying:


 


(i)            the certificate number, if any, of
the Security in respect of which such notice of withdrawal is being submitted;


 


(ii)           the principal of the Security with
respect to which such notice of withdrawal is being submitted; and


 


(iii)          the principal, if any, of such
Security which remains subject to the original Purchase Notice and which has
been or will be delivered for purchase by the Company.


 


The Trustee shall promptly
notify the Company of the receipt by it of any Company Notice or written notice
of withdrawal thereof.


 


                The right of the Holder to convert the
Securities with respect to which the repurchase right is being exercised shall
continue until the close of business on the Business Day immediately preceding
the Repurchase Date.


 


(3)           In
the event a repurchase right shall be exercised in accordance with the terms
hereof, the Company shall pay or cause to be paid to the Trustee the Repurchase
Price in cash or shares of Applicable Stock, as provided above, for payment to
the Holder on the Repurchase Date or, if shares of Applicable Stock are to be
paid, on the date that is 30 days after the date of the Company Notice,
together with accrued and unpaid interest to the Repurchase Date payable with
respect to the Securities as to which the repurchase right has been exercised; provided,
however, that installments of interest that mature on or prior to the
Repurchase Date shall be payable in cash to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of business
on the relevant Regular Record Date.


 


(4)           If
any Security (or portion thereof) surrendered for repurchase shall not be so
paid on the Repurchase Date, the principal amount of such Security (or portion
thereof, as the case may be) shall, until paid, bear interest to the extent
permitted by applicable law from the Repurchase Date at the rate of 2.50% per
annum, and each Security shall remain convertible into Common Stock until the
principal of such Security (or portion thereof, as the case may be) shall have
been paid or duly provided for.


 


(5)           Any
Security that is to be repurchased only in part shall be surrendered to the
Trustee (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and
conditions, each in an authorized


 


98

















 


denomination in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.


 


(6)           Any
issuance of shares of Applicable Stock in respect of the Repurchase Price shall
be deemed to have been effected immediately prior to the close of business on
the Repurchase Date and the Person or Persons in whose name or names any
certificate or certificates for shares of Applicable Stock shall be issuable
upon such repurchase shall be deemed to have become on the Repurchase Date the
holder or holders of record of the shares represented thereby; provided,
however, that any surrender for repurchase on a date when the stock
transfer books of the Company shall be closed shall constitute the Person or
Persons in whose name or names the certificate or certificates for such shares
are to be issued as the record holder or holders thereof for all purposes at
the opening of business on the next succeeding day on which such stock transfer
books are open. No payment or adjustment shall be made for dividends or distributions
on any Applicable Stock issued upon repurchase of any Security declared prior
to the Repurchase Date.


 


(7)           No
fractions of shares shall be issued upon repurchase of Securities. If more than
one Security shall be repurchased from the same Holder and the Repurchase Price
shall be payable in shares of Applicable Stock, the number of full shares that
shall be issuable upon such repurchase shall be computed on the basis of the
aggregate principal amount of the Securities so repurchased. Instead of any fractional
share of Applicable Stock that would otherwise be issuable on the repurchase of
any Security or Securities, the Company will deliver to the applicable Holder
its check for the current market value of such fractional share. The current
market value of a fraction of a share is determined by multiplying the current
market price of a full share by the fraction, and rounding the result to the
nearest cent. For purposes of this Section, the current market price of a share
of Applicable Stock is the Closing Price Per Share of the Applicable Stock on
the Trading Day immediately preceding the Repurchase Date.


 


(8)           Any
issuance and delivery of certificates for shares of Applicable Stock on
repurchase of Securities shall be made without charge to the Holder of
Securities being repurchased for such certificates or for any tax or duty in
respect of the issuance or delivery of such certificates or the securities
represented thereby; provided, however, that the Company shall
not be required to pay any tax or duty that may be payable in respect of (i)
income of the Holder or (ii) any transfer involved in the issuance or delivery
of certificates for shares of Applicable Stock in a name other than that of the
Holder of the Securities being repurchased, and no such issuance or delivery
shall be made unless and until the Person requesting such issuance or delivery
has paid to the Company the amount of any such tax or duty or has established,
to the satisfaction of the Company, that such tax or duty has been paid.


 


(9)           If shares
of Applicable Stock to be delivered upon repurchase of a Security are to be
registered in a name other than that of the beneficial owner of such Security,
then such Holder must deliver to the Trustee a Surrender Certificate, dated the
date of surrender of such Restricted Security and signed by such beneficial
owner, as to compliance with the restrictions on transfer applicable to such
Restricted Security. Neither the Trustee nor any Registrar or Transfer Agent or
other agents shall be required to register in a name other than that of the
beneficial owner shares of Applicable


 


99

















 


Stock issued upon repurchase of
any such Restricted Security not so accompanied by a properly completed
Surrender Certificate.


 


(10)         All
Securities delivered for repurchase shall be delivered to the Trustee to be
canceled at the direction of the Trustee, which shall dispose of the same as
provided in Section 3.9.


 


SECTION 14.4                   Certain Definitions.


 


For purposes of this Article XIV,


 


(1)           the term “beneficial owner” shall be determined in
accordance with Rule 13d-3, as in effect on the date of the original
execution of this Indenture, promulgated by the Commission pursuant to the
Exchange Act;


 


(2)           a
“Change in Control” shall be deemed to have occurred at the time, after the
original issuance of the Securities, of:


 


(i)            any Person acquires beneficial
ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of capital stock
of the Company entitling such person to exercise 50% or more of the total
voting power of all shares of capital stock of the Company entitled to vote
generally in the elections of directors, other than any such acquisition by the
Company, any subsidiary of the Company or any employee benefit plan of the
Company; or


 


(ii)           the Company merges or consolidates
with or into any other Person, any merger of another Person into the Company,
or any sale, transfer or lease of all or substantially all of the assets of the
Company to another Person (other than to one or more wholly-owned subsidiaries
of the Company), other than any such transaction (A) pursuant to which the
holders of 50% or more of the total voting power of all shares of the Company’s
capital stock entitled to vote generally in the election of directors
immediately prior to such transaction have or have the entitlement to receive,
directly or indirectly, at least 50% or more of the total voting power of all
shares of capital stock entitled to vote generally in the election of directors
of the continuing or surviving corporation immediately after such transaction
or (B) any transaction which is effected solely to change the jurisdiction
of incorporation of the Company and results in a reclassification, conversion
or exchange of outstanding shares of Common Stock into solely shares of common
stock;


 


provided,
however, that a Change in Control shall not be deemed to have occurred
if either (I) the Closing Price Per Share of the Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the Change in Control or the public announcement
of the Change in Control (in the case of a Change in Control under clause (i)
above) or the period of 10 consecutive Trading Days ending immediately before
the Change in Control (in the case of a Change in Control under
clause (ii) above) shall equal or exceed 110% of the Conversion Price of
the Securities in effect on each such Trading Day or (II) all of the
consideration (excluding cash payments for fractional shares and cash payments
made pursuant to dissenters’


 


100

















 


appraisal rights) in a merger
or consolidation otherwise constituting a Change in Control under clause
(i) above and/or clause (ii) above consists of shares of common
stock, depository receipts or other certificates representing common equity
interests traded on a national securities exchange or quoted on the Nasdaq
National Market (or will be so traded or quoted immediately following such
Change in Control) and as a result of such transaction or transactions the
notes become convertible into such common stock, depository receipts or other
certificates representing common equity interests; and


 


(3)           for
purposes of Section 14.4(2)(i), the term “person” shall include any syndicate
or group which would be deemed to be a “person” under Section 13(d)(3) of the
Exchange Act, as in effect on the date of the original execution of this
Indenture.


 


SECTION 14.5                   Consolidation, Merger, etc.


 


In the case of
any merger, consolidation, sale, conveyance, transfer or lease of all or
substantially all of the assets of the Company to which Section 12.11 applies,
in which the Common Stock of the Company is changed or exchanged as a result
into the right to receive shares of stock and other securities or property or
assets (including cash) which includes shares of Common Stock of the Company or
common stock of another Person that are, or upon issuance will be, traded on a
United States national securities exchange or approved for trading on an
established automated over-the-counter trading market in the United States and
such shares constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate fair market value of such shares of stock and
other securities, property and assets (including cash) (as determined by the
Company, which determination shall be conclusive and binding), then the Person
formed by such consolidation or resulting from such merger or combination or
which acquires the properties or assets (including cash) of the Company, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
(which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) modifying the provisions of this
Indenture relating to the right of Holders to cause the Company to repurchase
the Securities following a Change in Control, including without limitation the
applicable provisions of this Article XIV and the definitions of the Common
Stock and Change in Control, as appropriate, and such other related definitions
set forth herein as determined in good faith by the Company (which
determination shall be conclusive and binding), to make such provisions apply
in the event of a subsequent Change in Control to the common stock and the
issuer thereof if different from the Company and Common Stock of the Company
(in lieu of the Company and the Common Stock of the Company).


 


ARTICLE XV


HOLDERS LISTS
AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE


 


SECTION 15.1                   Company to Furnish Trustee Names and Addresses
of Holders.


 


The Company
will furnish or cause to be furnished to the Trustee:


 


101

















 


(1)           semi-annually,
not more than 15 days after the Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Securities as of such Regular Record Date; and


 


(2)           at
such other times as the Trustee may reasonably request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;


 


provided, however, that no such list
need be furnished so long as the Trustee is acting as Security Registrar.


 


SECTION 15.2                   Preservation of
Information.


 


(1)           The Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in
Section 15.1 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list, if any,
furnished to it as provided in Section 15.1 upon receipt of a new list so
furnished.


 


(2)           After
this Indenture has been qualified under the Trust Indenture Act, the rights of
Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights, and
duties of the Trustee, shall be as provided by the Trust Indenture Act.


 


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


 


SECTION 15.3                   Reports by Trustee.


 


(1)           After
this Indenture has been qualified under the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.


 


(2)           After
this Indenture has been qualified under the Trust Indenture Act, a copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange.


 


SECTION 15.4                   Reports by Company.


 


After this Indenture has been
qualified under the Trust Indenture Act, the Company shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and


 


102

















 


other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.


 


ARTICLE XVI


IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS


 


SECTION 16.1                   Indenture and Securities
Solely Corporate Obligations.


 


No recourse for the payment of
the principal of or premium, if any, or interest on any Security 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 Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, 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 waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.


 


This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.


 


103

















 


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


 


	
   

  	
  MICRON
  TECHNOLOGY, INC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W. G.
  Stover, Jr.

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Wilbur G.
  Stover, Jr.

  
	
   

  	
  Title:

  	
  Vice
  President of Finance and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK MINNESOTA, NATIONAL ASSOCIATION

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  G. Slade

  	
   

  
	
   

  	
  Name:

  	
  Michael G.
  Slade

  
	
   

  	
  Title:

  	
  Corporate
  Trust Officer

  
					



 


104

















 


ANNEX A -- Form of Unrestricted Securities Certificate


 


UNRESTRICTED SECURITIES CERTIFICATE


 


(For removal of Restricted Securities Legend
pursuant to Section 3.5(3))


 


Wells Fargo
Bank Minnesota, National Association


Corporate
Trust Operations


MAC N9303-121


Sixth and
Marquette


Minneapolis,
Minnesota 55479


 


RE:                              2.50%
Convertible Subordinated Notes Due February 1, 2010 of Micron Technology, Inc.
(the “Securities”)


 


Reference is
made to the Indenture, dated as of February 4, 2003 (the “Indenture”), from
Micron Technology, Inc (the “Company”) to Wells Fargo Bank Minnesota, National
Association, as Trustee.  Terms used
herein and defined in the Indenture or in Rule 144 under the U.S. Securities
Act of 1933 (the “Securities Act”) are used herein as so defined.


 


This
certificate relates to
U.S.$                         
principal amount of Securities, which are evidenced by the following certificate(s)
(the “Specified Securities”):


 


CUSIP No. 595112 AF 0


 


CERTIFICATE No(s).
                                


 


The person in
whose name this certificate is executed below (the “Undersigned”) hereby
certifies that either (i) it is the sole beneficial owner of the Specified
Securities or (ii) it is acting on behalf of all the beneficial owners of the
Specified Securities and is duly authorized by them to do so. Such beneficial
owner or owners are referred to herein collectively as the “Owner”. If the
Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.  If the
Specified Securities are not represented by a Global Security, they are
registered in the name of the Undersigned, as or on behalf of the Owner.


 


The Owner has
requested that the Specified Securities be exchanged for Securities bearing no
Restricted Securities Legend pursuant to Section 3.5(3) of the Indenture. In
connection with such exchange, the Owner hereby certifies that the exchange is
occurring after a period of at least two years has elapsed since the date the
Specified Securities were acquired from the Company or from an “affiliate” (as
such term is defined in Rule 144) of the Company, whichever is later, and the
Owner is not, and during the preceding three months has not been, an affiliate
of the Company.  The Owner


 

















 


also acknowledges that any
future transfers of the Specified Securities must comply with all applicable
securities laws of the states of the United States and other jurisdictions.


 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company and the Initial Purchasers.


 


	
  Dated:

  	
   

  	
   

  
	
   

  
	
  (Print the
  name of the Undersigned, as such term is defined in the second paragraph of
  this certificate.)

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
							



 


(If the
Undersigned is a corporation, partnership or fiduciary, the title of the person
signing on behalf of the Undersigned must be stated.)


 


2

















 


ANNEX B -- Form of Surrender Certificate


 


In connection with the
certification contemplated by Section 12.2 or 14.3(9) relating to compliance
with certain restrictions relating to transfers of Restricted Securities, such
certification shall be provided substantially in the form of the following
certificate, with only such changes thereto as shall be approved by the Company
and Goldman, Sachs & Co.:


 


CERTIFICATE


 


MICRON TECHNOLOGY, INC.


 


2.50% CONVERTIBLE SUBORDINATED NOTES DUE FEBRUARY 1, 2010


 


This is to certify that as of
the date hereof with respect to U.S. $         
principal amount of the above-captioned securities surrendered on the date
hereof (the “Surrendered Securities”) for registration of transfer, or for
conversion or repurchase where the securities issuable upon such conversion or
repurchase are to be registered in a name other than that of the undersigned
Holder (each such transaction being a “transfer”), the undersigned Holder (as
defined in the Indenture) certifies that the transfer of Surrendered Securities
associated with such transfer complies with the restrictive legend set forth on
the face of the Surrendered Securities for the reason checked below:


 


o                                    The
transfer of the Surrendered Securities complies with Rule 144A under the
Securities Act; or


 


o                                    The
transfer of the Surrendered Securities complies with Rule 144 under the United
States Securities Act of 1933, as amended (the “Securities Act”); or


 


o                                    The
transfer of the Surrendered Securities has been made to an institution that is
an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act in a transaction exempt from the registration
requirements of the Securities Act and a signed letter containing certain
representations and agreements relating to restrictions on transfer of the
Securities (and if such transfer is for an aggregate principal amount less than
$250,000 an opinion of counsel acceptable to the Company if requested by the
Company, that such transfer is exempt from registration); or


 


o                                    The
transfer of the Surrendered Securities has been made pursuant to an exemption
from registration under the Securities Act and an opinion of counsel has been
delivered to the Company with respect to such transfer.


 


[Name of
Holder]


 


	
  Dated:

  	
   

  	
   

  
	
  *To be dated
  the date of surrender

  



 


3