Exhibit
4.1


 


Execution
Copy


 




 


 





YAHOO! INC.


 


as Issuer


 


 


AND


 


 


U.S. BANK NATIONAL
ASSOCIATION


 


as Trustee


 












 


Indenture


 


Dated as of April 9, 2003


 












 


Zero Coupon Senior
Convertible Notes Due 2008




 


 





 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  
	
   

  
	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  
	
   

  
	
  Section
  1.01.  Definitions

  
	
  Section 1.02.  Compliance Certificates And Opinions

  
	
  Section 1.03.  Form Of Documents Delivered To Trustee

  
	
  Section 1.04.  Acts Of Holders; Record Dates

  
	
  Section 1.05.  Notices, Etc., to Trustee and Company

  
	
  Section 1.06.  Notice To Holders; Waiver

  
	
  Section 1.07.  Conflict With Trust Indenture Act

  
	
  Section 1.08.  Effect Of Headings And Table Of Contents

  
	
  Section 1.09.  Successors And Assigns

  
	
  Section 1.10.  Separability Clause

  
	
  Section 1.11.  Benefits Of Indenture

  
	
  Section 1.12.  Governing Law

  
	
  Section 1.13.  Legal Holiday

  
	
   

  
	
  ARTICLE 2

  
	
   

  
	
  SECURITY FORMS

  
	
   

  
	
  Section 2.01.  Forms Generally

  
	
  Section 2.02.  Form Of Face Of Security

  
	
  Section 2.03.  Form Of Reverse Of Security

  
	
  Section 2.04.  Form Of Trustee’s Certificate Of Authentication

  
	
  Section 2.05.  Legend On Restricted Securities

  
	
   

  
	
  ARTICLE 3

  
	
   

  
	
  THE SECURITIES

  
	
   

  
	
  Section 3.01.  Title And Terms

  
	
  Section 3.02.  Denominations

  
	
  Section 3.03.  Execution, Authentication, Delivery And Dating

  
	
  Section 3.04.  Temporary Securities

  
	
  Section 3.05.  Registration; Registration Of Transfer And Exchange Restrictions On
  Transfer

  
	
  Section 3.06.  Mutilated, Destroyed, Lost And Stolen Securities

  
	
  Section 3.07.  Persons Deemed Owners

  
	
  Section 3.08.  Book-entry Provisions For Global Securities

  



 


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  Section 3.09.  Cancellation

  
	
  Section 3.10.  Special Transfer Provision

  
	
  Section 3.11.  CUSIP Numbers

  
	
  Section 3.12.  Ranking

  
	
   

  
	
  ARTICLE 4

  
	
   

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  
	
  Section 4.01.  Satisfaction And Discharge Of Indenture

  
	
  Section 4.02.  Application Of Trust Money

  
	
   

  
	
  ARTICLE 5

  
	
   

  
	
  REMEDIES

  
	
   

  
	
  Section 5.01.  Events Of Default

  
	
  Section 5.02.  Acceleration Of Maturity; Rescission And Annulment

  
	
  Section 5.03.  Other Remedies

  
	
  Section 5.04.  Collection Of Indebtedness And Suits For Enforcement By Trustee

  
	
  Section 5.05.  Trustee May File Proofs Of Claim

  
	
  Section 5.06.  Application Of Money Collected

  
	
  Section 5.07.  Limitation On Suits

  
	
  Section 5.08.  Unconditional Right Of Holders To Receive Payment

  
	
  Section 5.09.  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

  
	
  Section 5.13.  Waiver Of Past Defaults

  
	
  Section 5.14.  Undertaking For Costs

  
	
  Section 5.15.  Waiver Of Stay Or Extension Laws

  
	
   

  
	
  ARTICLE 6

  
	
   

  
	
  THE TRUSTEE

  
	
   

  
	
  Section 6.01.  Certain Duties And Responsibilities

  
	
  Section 6.02.  Notice Of Defaults

  
	
  Section 6.03.  Certain Rights Of Trustee

  
	
  Section 6.04.  Not Responsible For Recitals

  
	
  Section 6.05.  May Hold Securities

  
	
  Section 6.06.  Money Held In Trust

  
	
  Section 6.07.  Compensation And Reimbursement

  
	
  Section 6.08.  Disqualification; Conflicting Interests

  
	
  Section 6.09.  Corporate Trustee Required; Eligibility

  
	
  Section 6.10.  Resignation And Removal; Appointment Of Successor

  



 


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  Section 6.11.  Acceptance Of Appointment By Successor

  
	
  Section 6.12.  Merger, Conversion, Consolidation Or Succession To Business

  
	
  Section 6.13.  Preferential Collection Of Claims Against

  
	
   

  
	
  ARTICLE 7

  
	
   

  
	
  HOLDERS’ LISTS AND REPORTS
  BY TRUSTEE AND THE COMPANY

  
	
   

  
	
  Section 7.01.  Company To Furnish Trustee Names And Addresses Of Holders

  
	
  Section 7.02.  Preservation Of Information; Communications To Holders

  
	
  Section 7.03.  Reports By Trustee

  
	
  Section 7.04.  Reports By Company

  
	
   

  
	
  ARTICLE 8

  
	
   

  
	
  CONSOLIDATION,
  MERGER, CONVEY, TRANSFER OR LEASE

  
	
   

  
	
  Section 8.01.  Company May Consolidate, Etc., Only On Certain Terms

  
	
  Section 8.02.  Successor Substituted

  
	
   

  
	
  ARTICLE 9

  
	
   

  
	
  SUPPLEMENTAL
  INDENTURES

  
	
   

  
	
  Section 9.01.  Supplemental Indentures Without Consent Of Holders

  
	
  Section 9.02.  Supplemental Indentures With Consent Of Holders

  
	
  Section 9.03.  Execution Of Supplemental Indentures

  
	
  Section 9.04.  Effect Of Supplemental Indentures

  
	
  Section 9.05.  Conformity With Trust Indenture Act

  
	
  Section 9.06.  Reference In Securities To Supplemental Indentures

  
	
   

  
	
  ARTICLE 10

  
	
   

  
	
  COVENANTS

  
	
   

  
	
  Section 10.01.  Payments

  
	
  Section 10.02.  Maintenance Of Office Or Agency

  
	
  Section 10.03.  Money For Security Payments To Be Held In Trust

  
	
  Section 10.04.  Statement By Officers As To Default

  
	
  Section 10.05.  Existence

  
	
  Section 10.06.  Reports And Delivery Of Certain Information

  
	
  Section 10.07.  Resale Of Certain Securities

  
	
  Section 10.08.  Book-Entry System

  
	
  Section 10.09.  Additional Interest Amounts Under The Registration Rights Agreement

  
	
  Section 10.10.  Information For IRS Filings

  



 


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  Section 10.11.  Further Instruments And Acts

  
	
   

  
	
  ARTICLE 11

  
	
   

  
	
  REDEMPTION AND REPURCHASES

  
	
   

  
	
  Section 11.01.  No Redemption By The Company

  
	
  Section 11.02.  Repurchase Of Securities At Option Of The Holder Upon Fundamental
  Change.

  
	
  Section 11.03.  The Company’s Right To Elect Manner Of Payment Of Fundamental Change
  Repurchase Price

  
	
  Section 11.04.  Effect Of Fundamental Change Repurchase Notice

  
	
  Section 11.05.  Deposit Of Fundamental Change Repurchase Price

  
	
  Section 11.06.  Securities Repurchased In Part

  
	
  Section 11.07.  Covenant To Comply With Securities Laws Upon Repurchase Of Securities

  
	
  Section 11.08.  Repayment To The Company

  
	
   

  
	
  ARTICLE 12

  
	
   

  
	
  PAYMENTS OF ADDITIONAL
  INTEREST AMOUNTS ON THE SECURITIES

  
	
   

  
	
  Section 12.01.  Payment Of Additional Interest Amounts; Interest Rights Preserved

  
	
   

  
	
  ARTICLE 13

  
	
   

  
	
  CONVERSION

  
	
   

  
	
  Section 13.01.  Right To Convert

  
	
  Section 13.02.  Conversion Procedure

  
	
  Section 13.03.  Cash Payments In Lieu Of Fractional Shares

  
	
  Section 13.04.  Adjustment Of Conversion Price

  
	
  Section 13.05.  Effect Of Reclassification, Consolidation, Merger Or Sale

  
	
  Section 13.06.  Taxes On Shares Issued

  
	
  Section 13.07.  Reservation Of Shares; Shares To Be Fully Paid; Compliance With
  Governmental Requirements; Listing Of Common Stock

  
	
  Section 13.08.  Responsibility Of Trustee

  
	
  Section 13.09.  Notice To Holders Prior To Certain Actions

  
	
  Section 13.10.  Cash Conversion Option.

  
	
  Section 13.11.  Company Determination Final

  



 


iv

















 


INDENTURE, dated as of April 9, 2003, between YAHOO!
INC., a corporation duly organized and existing under the laws of the State of
Delaware, as Issuer (herein called the “Company”),
having its principal office at 701 First Avenue, Sunnyvale, California 94089,
and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly
organized and existing under the laws of the United States, as Trustee (herein
called the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly authorized the creation of an
issue of Zero Coupon Senior Convertible Notes Due 2008 (each a “Security” and collectively, 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 executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with the terms of the Securities
and the Indenture, have been done.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE
1

Definitions And Other Provisions Of General
Application


 


Section 1.01. 
Definitions.  For
all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:


 


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


 


(ii)           all other terms used herein which are
defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;


 


(iii)          all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with GAAP; and


 


(iv)          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, has the meaning specified in Section
1.04.


 


“Additional Interest Amount” shall have the
meaning given to such term in the Registration Rights Agreement.


 

















 


“Additional Interest
Payment Date” means each April 15 and October 15 of each
year, as provided in the Registration Rights Agreement.


 


“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 Members”
has the meaning specified in Section 3.08.


 


“Applicable Stock” means (i) the Common
Stock or (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 depositary shares or other certificates
representing common equity interests of such surviving corporation or its
direct or indirect parent corporation.


 


“Board of Directors”
means, with respect to any Person, either the board of directors of such Person
or any duly authorized committee of that board.


 


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


 


“Business Day”
means any day other than a Saturday, a Sunday or a day on which banking
institutions in The City of New York are authorized or obligated by law, or
executive order or governmental decree to be closed.


 


“Capital Stock”
means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, including, without
limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.


 


“Cash Settlement Averaging Period” has the
meaning specified in Section 13.10.


 


“Cash Settlement Notice Period” has the
meaning specified in Section 13.10.


 


“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
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 shares of Common Stock, par value $0.001 per share, of the Company as
it exists on the date of this Indenture or any other shares of Capital Stock of
the Company into which the Common Stock shall be reclassified or changed.


 


2

















 


“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 Request”
or “Company Order” means a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief
Operating Officer or any Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.


 


“Continuing Director”
means, at any date, a member of the Company’s Board of Directors (i) who was a
member of such board on April 1, 2003 or (ii) who was nominated or elected
by at least a majority of the directors who were Continuing Directors at the
time of such nomination or election or whose election to the Company’s Board of
Directors was recommended or endorsed by at least a majority of the directors
who were Continuing Directors at the time of such nomination or election or
such lesser number comprising a majority of a nominating committee comprised of
independent directors if authority for such nominations or elections has been
delegated to a nominating committee whose authority and composition have been
approved by at least a majority of the directors who were Continuing Directors
at the time such committee was formed. (Under this definition, if the Board of
Directors of the Company as of the date of this Indenture were to approve a new
director or directors and then resign, no Change in Control would occur even
though the current Board of Directors would thereafter cease to be in office).


 


“Conversion Agent”
means the Trustee or such other office or agency designated by the Company
where Securities may be presented for conversion.


 


“Conversion Date” has the meaning specified
in Section 13.02.


 


“Conversion Notice”
has the meaning specified in Section 13.02.


 


“Conversion Obligation” has the meaning
specified in Section 13.10.


 


“Conversion Price” has the meaning specified
in the Securities.


 


“Conversion Retraction Period” has the
meaning specified in Section 13.10.


 


“Corporate Trust
Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which
office at the date of the execution of this Indenture is located at 180 East
Fifth Street, St. Paul, Minnesota 55101, Attention: Corporate Trust Department
(Yahoo! Inc. — Zero Coupon Senior Convertible Notes Due 2008) or at any other
time at such other address as the Trustee may designate from time to time by
notice to the Company.


 


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


 


“Current Market
Price” has the meaning specified in Section 13.04.


 


3

















 


“Default”
means any event that is or with the passage of time or the giving of notice or
both would become an Event of Default.


 


“Depositary”
means The Depository Trust Company until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean such successor Depositary.


 


“Distributed
Securities” has the meaning specified in Section 13.04.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Event of Default”
has the meaning specified in Section 5.01.


 


“Excess Amount” has the meaning specified in
Section 13.04.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.


 


“Ex-Dividend Date” means, with respect to
any issuance or distribution on shares of Common Stock, the first Trading Day
on which the shares of Common Stock trade regular way on the principal
securities market on which the shares of Common Stock are then traded without
the right to receive such issuance or distribution.


 


“Expiration Time”
has the meaning specified in Section 13.04.


 


“fair market value”
has the meaning specified in Section 13.04.


 


“Final Maturity Date” means April 1, 2008.


 


“Final Notice Date” has the meaning
specified in Section 13.10.


 


“Fundamental Change”
has the meaning specified in Section 11.02.


 


“Fundamental Change Company Notice” has the
meaning specified in Section 11.02.


 


“Fundamental Change
Repurchase Date” has the meaning specified in Section 11.02.


 


“Fundamental Change
Repurchase Notice” has the meaning specified in Section 11.02.


 


“Fundamental Change
Repurchase Price” has the meaning specified in Section 11.02.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, in
each case, as in effect in the United States on the date hereof.


 


4

















 


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


 


“Holder”
or “Securityholder” means a Person
in whose name a 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 Purchaser”
means Credit Suisse First Boston LLC.


 


“Investment Company
Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.


 


“Issue Date”
means the date the Securities are originally issued as set forth on the face of
the Security under this Indenture.


 


“Maturity”,
when used with respect to any Security, means the date on which the principal,
Purchase Price or Fundamental Change Repurchase Price of such Security becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or Fundamental Change Repurchase Date, or by declaration of acceleration or
otherwise.


 


“nonelecting share”
has the meaning specified in Section 13.05.


 


“Non-U.S. Person”
means a Person who is not a U.S. person, as defined in Regulation S.


 


“Notice of Default”
has the meaning specified in Section 5.01.


 


“Officers’
Certificate” means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by 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 10.04 shall
be the principal executive, financial or accounting officer of the Company.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be external or in-house counsel for
the Company, and who shall be reasonably acceptable to the Trustee.


 


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


 


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


 


(ii)           Securities, or portions thereof, for
whose payment in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the


 


5

















 


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; and


 


(iii)          Securities which have been paid 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 protected purchaser in whose hands such
Securities are valid obligations of the Company;


 


provided,
however, that, in determining
whether the Holders of the requisite Principal Amount of the Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver 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
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows 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 establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.


 


“Paying Agent”
means any Person authorized by the Company to pay the principal of, and
Additional Interest Amounts or Fundamental Change Repurchase Price of any
Securities on behalf of the Company. 
The Trustee shall initially be the Paying Agent.


 


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


 


“Physical Securities”
means permanent certificated Securities in registered form issued in
denomination of $1,000 Principal Amount and integral multiples thereof.


 


“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 3.06 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.


 


“Principal Amount”
of a Security means the Principal Amount as set forth on the face of the
Security.


 


“Purchase Agreement”
means the Purchase Agreement, dated as of April 3, 2003, entered into by the
Company and the Initial Purchaser in connection with the sale of the
Securities.


 


“Purchase Price”
has the meaning specified in the Securities.


 


“Purchased Shares”
has the meaning specified in Section 13.04.


 


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“Qualified
Institutional Buyer” or “QIB”
shall have the meaning specified in Rule 144A.


 


“Record Date”
has the meaning specified in Section 13.04.


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of
April 9, 2003, between the Company and the Initial Purchaser, for the benefit
of themselves and the Holders, as the same may be amended or modified from time
to time in accordance with the terms thereof.


 


“Regular Record Date”
for the Additional Interest Amounts payable on any Additional Interest Payment
Date means April 1 or October 1 (whether or not a Business Day) next preceding
such Additional Interest Payment Date.


 


“Regulation S”
means Regulation S under the Securities Act.


 


“Resale Registration
Statement” means a registration statement under the Securities Act
registering the Securities for resale pursuant to the terms of the Registration
Rights Agreement.


 


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


 


“Restricted Global
Security” means a Global Security representing Restricted
Securities.


 


“Restricted Security”
or “Restricted Securities” has the
meaning specified in Section 2.05.


 


“Rule 144”
means Rule 144 under the Securities Act (including any successor rule thereto),
as the same may be amended from time to time.


 


“Rule 144A”
means Rule 144A under the Securities Act (including any successor rule
thereto), as the same may be amended from time to time.


 


“Rule 144A
Information” has the meaning specified in Section 2.03.


 


“Sale Price” of a share of Applicable Stock
on any date means the closing per share sale price (or if no closing sale price
is reported, the average of the average bid and the average ask prices) as
reported in composite transactions for the principal U.S. securities exchange
on which the common stock is traded or, if the common stock is not listed on a
U.S. national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation system or by the National
Quotation Bureau Incorporated.  In the
absence of such a quotation, the Company shall be entitled to make a good faith
determination of the sale price on the basis it considers appropriate.


 


7

















 


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


 


“Security”
or “Securities” has the meaning
specified in the first paragraph of the Recitals of the Company.


 


“Security Register”
and “Security Registrar” have the
respective meanings specified in Section 3.05.


 


“significant
subsidiary” has the meaning given to that term in Rule 1-02 of Regulation
S-X under the Exchange Act, except that references to income from continuing
operations are changed to revenues.


 


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


 


“Stock Transfer
Agent” means EquiServe Trust Company, N.A. or such other Person
designated by the Company as the transfer agent for the Common Stock.


 


“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 which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.


 


“Surviving Entity”
has the meaning specified in Section 8.01.


 


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


 


“Trigger Event”
has the meaning specified in Section 13.04.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939 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 as so amended.


 


“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.


 


8

















 


“Unrestricted Global
Security” means a Global Security representing Securities which are
not Restricted Securities.


 


“Vice President,”
when used with respect to the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president”.


 


Section 1.02.  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
such certificates and opinions as may be required under the Trust Indenture
Act.  Each such certificate or opinion
shall be given in the form of an Officers’ Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.


 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:


 


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


 


(b)        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;


 


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


 


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


 


Section 1.03.  Form Of
Documents Delivered To 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 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 his
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 stating that the
information with respect to such factual matters is in the possession of the
Company, 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.


 


9

















 


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 1.04.  Acts Of Holders; Record Dates.  (a)  Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company.  Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments.  Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.


 


(b)        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.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
reasonably deems sufficient.


 


(c)        The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by
Holders.  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 7.01) prior to such first solicitation or vote, as the case may
be.  With regard to any record date,
only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.


 


(d)        The ownership of Securities shall be
proved by the Security Register.


 


(e)        Any request, demand, authorization,
direction, notice, consent, 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.


 


Section 1.05.  Notices,
Etc., to Trustee and Company. 
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:


 


10

















 


(i)            the Trustee by any Holder or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office; or


 


(ii)           the Company by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention:  General Counsel.


 


Section 1.06.  Notice To Holders; Waiver.  Where
this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at such Holder’s address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice.  In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders.  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 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.


 


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 as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.


 


Section 1.07.  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.


 


Section 1.08.  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 1.09.  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 1.10.  Separability
Clause.  In
case any provision in this Indenture or in 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 1.11.  Benefits Of
Indenture.  Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their respective


 


11

















 


successors hereunder and the Holders of Securities, any benefit or any
legal or equitable right, remedy or claim under this Indenture.


 


Section 1.12.  Governing
Law.  This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York.


 


Section 1.13.  Legal
Holiday.  If
any specified date (including a date for giving notice) is a Legal Holiday, the
action shall be taken on the next succeeding day that is not a Legal Holiday,
and, if the action to be taken on such date is a payment in respect of the
Securities, no interest, if any, shall accrue for the intervening period.


 


ARTICLE 2

SECURITY FORMS


 


Section 2.01.  Forms
Generally.  The
Securities and the Trustee’s certificates of authentication shall be in
substantially the forms 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 or Depositary
therefor, the Internal Revenue Code of 1986, as amended, and regulations
thereunder, or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.


 


The Securities shall be initially issued in the form
of permanent Global Securities in registered form in substantially the form set
forth in this Article.  The aggregate
Principal Amount of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided.


 


Section 2.02.  Form Of Face Of Security.  [INCLUDE IF SECURITY IS A RESTRICTED SECURITY
— THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
REGULATION S THEREUNDER.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
YAHOO! INC. THAT (A) THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS


 


12

















 


DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.  IN ANY CASE,
THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTIONS WITH REGARD TO THE SECURITIES EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT.


 


THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND
PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS SECURITY 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 SECURITY
SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY TO HAVE AGREED TO ANY SUCH
AMENDMENT OR SUPPLEMENT.


 


THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED
TO THE BENEFITS OF,  A REGISTRATION
RIGHTS AGREEMENT, DATED AS OF APRIL 9, 2003, ENTERED INTO BY THE COMPANY FOR
THE BENEFIT OF CERTAIN HOLDERS OF SECURITIES FROM TIME TO TIME.]


 


[INCLUDE
IF SECURITY IS A GLOBAL SECURITY — THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.  THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE
OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 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


 


13

















 


IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]


 


[INCLUDE IF THE SECURITY IS NOT A GLOBAL SECURITY — THE NOTE
EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS (A) A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) A NON-U.S.
PERSON; (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS
NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT (A) TO
YAHOO!, OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN
A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), IT WILL FURNISH TO U.S. BANK
NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.  IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE).  IF TRANSFEREE
IS A PURCHASER WHO IS NOT A UNITED STATES PERSON, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS SUCH 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.  THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF


 


14

















THE TRANSFER OF THIS NOTE
PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).  AS USED HEREIN, THE TERMS “UNITED STATES”
AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.  THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.


 


YAHOO! INC.


 


Zero
Coupon Senior Convertible Notes Due 2008


 


	
  No.
  [    ]

  	
  CUSIP NO. [             ]

  	
  U.S.
  $[                        ]

  



 


Yahoo! Inc., a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the “Company”), which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to
                ,
or registered assigns, the principal sum of [                ]
United States Dollars
($                   )
[INCLUDE IF SECURITY IS A GLOBAL SECURITY — (which
amount may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depositary, in accordance with
the rules and procedures of the Depositary)] on
April 1, 2008.  Payment of the principal
of this Security shall be made by check mailed to the address of the Holder of
this Security specified in the register of Securities, or, at the option of the
Holder of this Security, at the Corporate Trust Office, in such lawful money of
the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.


 


Reference is made to the further provisions of this
Security set forth on the reverse hereof, including, without limitation,
provisions giving the Holder of this Security the right to convert this
Security into Common Stock of the Company in certain circumstances and the
right to require the Company to repurchase this Security upon certain events on
the terms and subject to the limitations referred to on the reverse hereof and
as more fully specified in the Indenture. 
Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.


 


This Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State.


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


 


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


 


15

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  YAHOO! INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Section
2.03.  Form Of
Reverse Of Security.  This
Security is one of a duly authorized issue of Securities of the Company,
designated as its Zero Coupon Senior Convertible Notes Due 2008 (herein called
the “Securities”), all issued or
to be issued under and pursuant to an Indenture dated as of April 9, 2003
(herein called the “Indenture”),
between the Company and U.S. Bank National Association (herein called the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities.


 


The indebtedness evidenced by the Securities is
unsecured and unsubordinated indebtedness of the Company and ranks equally with
the Company’s other unsecured and unsubordinated indebtedness.


 


Purchase By the Company
at the Option of the Holder. 
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to repurchase the Securities
if a Fundamental Change occurs at any time prior to April 1, 2008 at 100% of
the Principal Amount (the “Fundamental Change
Repurchase Price”), which Fundamental Change Repurchase Price shall
be paid in cash, shares of the Company’s Common Stock, shares of common stock
of the surviving corporation or a combination of cash and shares of the
applicable common stock.


 


Holders have the right to withdraw any Fundamental
Change Repurchase Notice by delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the Indenture.


 


If cash and/or shares of applicable common stock
sufficient to pay the Fundamental Change Repurchase Price of all Securities or
portions thereof to be purchased on a Fundamental Change Repurchase Date are
deposited with the Paying Agent on the Business Day following the Fundamental
Change Repurchase Date, the Holder thereof shall have no other rights as such
(other than the right to receive the Fundamental Change Repurchase Price, upon
surrender of such Security).


 


Conversion.  Subject to and in compliance with the provisions
of the Indenture (including without limitation the conditions of conversion of
this Security set forth in Section 13.01 thereof, the Holder hereof has the
right, at its option, to convert the Principal Amount hereof or any portion of
such principal which is $1,000 or an integral multiple thereof, into, subject
to Section 13.02 of the Indenture, that number of fully paid and non-assessable
shares of Common Stock, as said shares shall be constituted at the date of
conversion, obtained by dividing the Principal


 


16

















 


Amount of this Security or portion thereof to be converted by the
conversion price of $41.000 (the “Conversion
Price”) as adjusted from time to time as provided in the Indenture,
upon surrender of this Security, together with a Conversion Notice as provided
in the Indenture, to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at the option of such Holder, the Corporate Trust Office, and, unless the
shares issuable on conversion are to be issued in the same name as this
Security, duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or by his duly
authorized attorney.  No fractional
shares will be issued upon any conversion, but an adjustment and payment in
cash will be made, as provided in the Indenture, in respect of any fraction of
a share which would otherwise be issuable upon the surrender of any Securities
for conversion. Securities in respect of which a Holder is exercising its right
to require repurchase on a Fundamental Change Repurchase Date may be converted
only if such Holder withdraws its election to exercise such right in accordance
with the terms of the Indenture.


 


Upon conversion, the Company may choose to deliver
cash in lieu of shares of Common Stock.


The Company will notify
Holders of any event triggering the right to convert the Securities as
specified above in accordance with the Indenture.


 


[INCLUDE
IF SECURITY IS A GLOBAL SECURITY — In the event of a deposit
or withdrawal of an interest in this Security, including an exchange, transfer,
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 rules and procedures of the
Depositary.]


 


[INCLUDE
IF SECURITY IS A RESTRICTED SECURITY — Subject to certain limitations in
the Indenture, at any time when the Company is not subject to Section 13 or
15(d) of the United States Securities Exchange Act of 1934, as amended, upon
the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the “Securities Act”).  “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).]


 


If an Event of Default shall occur and be continuing,
the Principal Amount plus accrued but unpaid Additional Interest Amounts, if
any, may be declared due and payable in the manner and with the effect provided
in the Indenture.


 


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 the consent
of the Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Securities.  The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate Principal Amount of the Outstanding Securities, on behalf of


 


17

















 


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 upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.


 


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 with respect to the Securities, 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
satisfactory to it, and the Trustee shall not have received from the Holders of
a majority in Principal Amount of Outstanding Securities 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 said principal hereof on or after the respective due dates
expressed herein or for the enforcement of any conversion right.


 


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 Principal Amount
or Fundamental Change Repurchase Price of, and Additional Interest Amounts, if
any, on, this Security at the times, place and rate, and in the coin or
currency, herein prescribed.


 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in The City of New York, 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 hereof 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.


 


The Securities are issuable only in registered form in
denominations of $1,000 and any integral multiple of $1,000 above that amount,
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 a different authorized
denomination, as requested by the Holder surrendering the same.


 


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 cover any tax or other governmental charge payable in
connection therewith.


 


18

















 


Prior to due presentment 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 this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.


 


This
Security shall be governed by and construed in accordance with the laws of the
State of New York.


 


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


 


19

















 


ASSIGNMENT
FORM


 


If you want to assign this Security, fill in the form
below and have your signature guaranteed:


 


I or we assign and transfer this Security to:


 


	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type
  name, address and zip code and social security or tax ID number of assignee)

  



 


and irrevocably appoint
                                                                 agent
to transfer this Security on the books of the Company.  The agent may substitute another to act for
him.


 


	
  Date: 

  	
   

  	
   

  	
  Signed: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (Sign exactly as your
  name appears on the other side of this Security)

  
	
   

  
	
  Signature Guarantee:

  	
   

  
						



 


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


 


20

















 


In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration statement
under the Securities Act of 1933, as amended (the “Securities Act”), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) April 9, 2005, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Security is being transferred:


 


[Check One]


 


	
  (1)

  	
  o

  	
  to the Company or a
  subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  to a “Qualified
  Institutional Buyer” pursuant to and in compliance with Rule 144A
  under the Securities Act; or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  outside the United
  States to a “foreign person” in
  compliance with Rule 904 of Regulation S under the Securities Act; or

  
	
   

  	
   

  	
   

  
	
  (4)

  	
  o

  	
  pursuant to the
  exemption from registration provided by Rule 144 under the Securities Act, or

  



 


Unless one of the boxes is checked, the Trustee will
refuse to register any of the Securities evidenced by this certificate in the
name of any Person other than the registered Holder thereof, provided that if box (3) or (4) is
checked, the Company may require, prior to registering any such transfer of the
Securities, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3)) and other information
as the Company may reasonably request 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.


 


If none of the foregoing boxes is checked, the Trustee
or Security Registrar shall not be obligated to register this Security in the
name of any Person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 3.10 of
the Indenture shall have been satisfied.


 


	
  Date: 

  	
   

  	
   

  	
  Signed: 

  	
   

  
	
   

  
	
  (Sign exactly as
  your name appears on the other side of this Security)

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
							



 


21

















 


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


 


22

















 


TO BE COMPLETED BY
PURCHASER IF (2) ABOVE IS CHECKED


 


The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such account
is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  
	
  NOTICE:  To be executed by an executive officer.

  	
   

  



 


23

















 


CONVERSION NOTICE


 


If you want to convert this Security into Common Stock
(or cash if the Company so elects)  of
the Company, check the box: o


 


To convert only part of this Security, state the
Principal Amount to be converted (which must be $1,000 or an integral multiple
of $1,000):


 


$


 


If you want the stock certificate made out in another
person’s name, fill in the form below:


 


 


	
   

  
	
  (Insert other
  person’s social security or tax ID no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type
  other person’s name, address and zip code)

  



 


	
  Date: 

  	
   

  	
   

  	
  Signed: 

  	
   

  
	
  (Sign exactly as your
  name appears on the other side of this Security)

  
	
  Signature Guarantee:

  	
   

  
						



 


 


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


 


24

















 


Section
2.04.  Form Of Trustee’s
Certificate Of Authentication.   This
is one of the Securities referred to in the within-mentioned Indenture.


 


	
  Dated:

  	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


Section
2.05.  Legend On
Restricted Securities.  During
the period beginning on April 9, 2003 and ending on the date two years from
such date, any Security including any Security issued in exchange therefor or
in lieu thereof, shall be deemed a “Restricted
Security” and shall be subject to the restrictions on transfer
provided in the legends set forth on the face of the form of Security in
Section 2.02; provided, however,
that the term “Restricted Security”
shall not include any Securities as to which restrictions have been terminated
in accordance with Section 3.05.  All
Securities shall bear the applicable legends set forth on the face of the form
of Security in Section 2.02.  Except as
provided in Section 3.05 and Section 3.10, the Trustee shall not issue any
unlegended Security until it has received an Officers’ Certificate from the
Company directing it to do so.


 


ARTICLE 3


THE SECURITIES


 


Section
3.01.  Title And
Terms.  The aggregate
Principal Amount of Securities which may be authenticated and delivered under
this Indenture is limited to $750,000,000, except for Securities authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 3.04, 3.06, 9.06, 11.06 or 13.02.


 


The Securities shall be known and designated as the “Zero
Coupon Senior Convertible Notes Due 2008” of the Company.  The Principal Amount shall be payable on
April 1, 2008.


 


The Principal Amount of and Additional Interest
Amounts, if any, on the Securities shall be payable at the office or agency of
the Company in The City of New York maintained for such purpose and at any
other office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payments may be made by wire transfer or by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.


 


The Securities shall not have the benefit of a sinking
fund.


 


The Securities shall not be superior in right of
payment to, and shall rank pari passu
with, all other unsecured and unsubordinated indebtedness of the Company.


 


25

















 


Section
3.02. 
Denominations.  The
Securities shall be issuable only in registered form without coupons and in
denominations of $1,000 and any integral multiple of $1,000 above that amount.


 


Section
3.03.  Execution,
Authentication, Delivery And Dating.  The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its Chief Operating Officer or one of its
Assistant Secretaries.  The signature of
any of these officers on the Securities may be manual or facsimile.


 


Securities bearing the manual or facsimile signatures
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 for authentication, together with a Company Order
for the authentication and delivery of such Securities.  The Company Order shall specify the amount
of Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical
Securities.  The Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.


 


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, 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
3.04.  Temporary
Securities.  Pending the
preparation of definitive Securities, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.


 


If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay.  After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at any office or agency
of the Company designated pursuant to Section 10.02, without charge to the
Holder.  Upon surrender for cancellation
of any one or more temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like Principal
Amount of definitive Securities of authorized denominations.  Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.


 


26

















 


Section
3.05. 
Registration; Registration Of Transfer And Exchange Restrictions On
Transfer.  (a)  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section
10.02 being herein sometimes collectively 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” (the “Security Registrar”)
for the purpose of registering Securities and transfers 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
10.02 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 tenor, each such Security bearing such
restrictive legends as may be required by this Indenture (including Section
2.02, 2.05 and 3.10).


 


At the option of the Holder and subject to the other
provisions of this Section 3.05 and to Section 3.10, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate Principal Amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.


 


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.


 


Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be 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.  As a condition to the
registration of transfer of any Restricted Securities, the Company or the
Trustee may require evidence satisfactory to them as to the compliance with the
restrictions set forth in the legend on such securities.


 


Except as provided in the following sentence and in
Section 3.10, all Securities originally issued hereunder and all Securities
issued upon registration of transfer or exchange or replacement thereof shall
be Restricted Securities and shall bear the legend required by Section 2.02 and
2.05, unless the Company shall have delivered to the Trustee (and the Security
Registrar, if other than the Trustee) a Company Order stating that the Security
is not a Restricted Security and may be issued without such legend
thereon.  Securities which are issued
upon registration of transfer of, or in exchange for, Securities which are not
Restricted Securities shall not be Restricted Securities and shall not bear
such legend.


 


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


 


27

















 


exchange of Securities, other than exchanges pursuant to Section 3.04
or 9.06 not involving any transfer.


 


The Company shall not be required to exchange or
register a transfer of any Security (i) that has been surrendered for
conversion or (ii) as to which a Fundamental Change Repurchase Notice has been
delivered and not withdrawn, except, where such Fundamental Change Repurchase
Notice provides that such Security is to be purchased only in part, the Company
shall be required to exchange or register a transfer of the portion thereof not
to be purchased.


 


(b)        Beneficial ownership of every Restricted
Security shall be subject to the restrictions on transfer provided in the
legends required to be set forth on the face of each Restricted Security
pursuant to Section 2.02 and 2.05, unless such restrictions on transfer shall
be terminated in accordance with this Section 3.05(b) or Section 3.10.  The Holder of each Restricted Security, by
such Holder’s acceptance thereof, agrees to be bound by such restrictions on
transfer.


 


The restrictions imposed by this Section 3.05 and
Section 2.02, 2.05 and 3.10 upon the transferability of any particular
Restricted Security shall cease and terminate upon delivery by the Company to
the Trustee of an Officers’ Certificate stating that such Restricted Security
has been sold pursuant to an effective Resale Registration Statement under the
Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto). 
Any Restricted Security as to which the Company has delivered to the
Trustee an Officers’ Certificate that such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon
surrender of such Restricted Security for exchange to the Security Registrar in
accordance with the provisions of this Section 3.05, be exchanged for a new
Security, of like tenor and aggregate Principal Amount, which shall not bear
the restrictive legends required by Section 2.02 and 2.05.  The Company shall inform the Trustee in
writing of the effective date of any Resale Registration Statement registering
the Securities under the Securities Act. 
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 Resale
Registration Statement.


 


As used in the preceding two paragraphs of this
Section 3.05, the term “transfer” encompasses any sale, pledge, transfer or
other disposition of any Restricted Security.


 


(c)        Neither the Trustee nor any of its
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
3.06.  Mutilated,
Destroyed, Lost And 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 shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them 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


 


28

















 


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 may, instead of issuing a new Security, pay such Security.


 


Upon the issuance of any new Security under this
Section, 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 and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.


 


Every new Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and 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 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.


 


Section
3.07.  Persons
Deemed Owners.  Prior to due
presentment of a 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 of such Security for the
purpose of receiving payment of principal on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


Section
3.08.  Book-entry
Provisions For Global Securities.  (a)  The Global Securities initially shall (i) be
registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear
legends as set forth on the face of the form of Security in Section 2.02.


 


Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Global Security, and
the Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Security for all
purposes whatsoever.  Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of any Holder.


 


(b)        Transfers of the Global Securities shall
be limited to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. 
Interests of beneficial owners in a Global Security may be transferred
or exchanged, in whole or in part, for Physical Securities


 


29

















 


in accordance with the rules and procedures of the
Depositary and the provisions of Section 3.10. 
In addition, Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Global Securities if
(A) such Depositary has notified the Company (or the Company becomes aware)
that the Depositary (i) is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act when the Depositary is required to be so registered to
act as such Depositary and, in both such cases, no successor Depositary shall
have been appointed within 90 days of such notification or of the Company
becoming aware of such event or (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security and the
Outstanding Securities shall have become due and payable pursuant to Section
5.02 and the Trustee requests that Physical Securities be issued; provided that Holders of Physical
Securities offered and sold in reliance on Rule 144A shall have the right,
subject to applicable law, to request that such Securities be exchanged for
interests in the applicable Global Security.


 


(c)        In connection with any transfer or
exchange of a portion of the beneficial interest in the Global Security to
beneficial owners pursuant to paragraph (b), the Security Registrar shall (if
one or more Physical Securities are to be issued) reflect on its books and
records the date and a decrease in the Principal Amount of the Global Security
in an amount equal to the Principal Amount of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Securities of like tenor
and amount.


 


(d)        In connection with the transfer of the
entire Global Security to beneficial owners pursuant to paragraph (b), the
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Global Security, an equal aggregate
Principal Amount of Physical Securities of authorized denominations and the
same tenor.


 


(e)        Any Physical Security constituting a
Restricted Security delivered in exchange for an interest in the Global
Security pursuant to paragraph (c) or (d) shall, except as otherwise provided
by paragraphs (a)(i)(x) and (c) of Section 3.10, bear the legend regarding
transfer restrictions applicable to the Physical Securities set forth on the
face of the form of Security in Section 2.02.


 


(f)         The Holder of the Global Securities may
grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.


 


Section
3.09. 
Cancellation.  The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold.  The
Trustee shall cancel and dispose of all Securities surrendered for registration
of transfer, exchange, payment, purchase, repurchase, redemption, conversion
(pursuant to Article 13 hereof) or cancellation in accordance with its
customary practices.  If the Company
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the


 


30

















 


indebtedness represented by such Securities unless and until the same
are delivered to the Trustee for cancellation. 
The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.


 


Section
3.10.  Special
Transfer Provision.  (a)  Transfers
to Non-U.S. Persons.  The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security constituting a Restricted Security to any
Non-U.S. Person to which Securities in the form of Global Securities cannot be
issued:


 


(i)    the
Security Registrar shall register the transfer of any Security constituting a
Restricted Security, whether or not such Security bears the legend required by
Section 2.02 and 2.05, if (x) the requested transfer is after April 9, 2005 or
(y) the proposed transferor has delivered to the Security Registrar a
certificate substantially in the form of Exhibit
A hereto, together with such other certifications, legal
opinions or other information as the Company may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act; and


 


(ii)   if the
proposed transferor is an Agent Member holding a beneficial interest in the
Global Security, upon receipt by the Security Registrar of (x) the certificate,
if any, required by paragraph (i) above and instructions given in accordance
with the Depositary’s and the Security Registrar’s procedures,


 


whereupon (1) the
Security Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical Securities) a
decrease in the Principal Amount of the Global Security in an amount equal to
the Principal Amount of the beneficial interest in the Global Security to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.


 


(b)        Transfers
to QIBs.  The following
provisions shall apply with respect to the registration of any proposed
transfer of a Security constituting a Restricted Security to a QIB (excluding
transfers to Non-U.S. Persons):


 


(i)    the
Security Registrar shall register the transfer if such transfer is being made
by a proposed transferor who has checked the box provided for on the form of
Security stating, or has otherwise advised the Company and the Security Registrar
in writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided for on the
form of Security stating, or has otherwise advised the Company and the Security
Registrar in writing, that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as it
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and


 


31

















 


(ii)   if the
proposed transferee is an Agent Member, and the Securities to be transferred consist
of Physical Securities which after transfer are to be evidenced by an interest
in the Global Security, upon receipt by the Security Registrar of instructions
given in accordance with the Depositary’s and the Security Registrar’s
procedures, the Security Registrar shall reflect on its books and records the
date and an increase in the Principal Amount of the Global Security in an
amount equal to the Principal Amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.


 


(c)        Private
Placement Legend.  Upon the
registration of transfer, exchange or replacement of Securities not bearing the
legends required by Section 2.02 and 2.05, the Security Registrar shall deliver
Securities that do not bear such legends. 
Upon the registration of transfer, exchange or replacement of Securities
bearing the legends required by Section 2.02 and 2.05, the Security Registrar
shall deliver only Securities that bear such legends unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 3.10 exists or
(ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.


 


(d)        General.  By its acceptance of any Security bearing
the legends required by Section 2.02 and 2.05, each Holder of such a Security acknowledges the restrictions on transfer of
such Security set forth in this Indenture and in such legends and agrees that
it will transfer such Security only as provided in this Indenture.


 


The Security Registrar shall retain, in accordance
with its customary procedures, copies of all letters, notices and other written
communications received pursuant to this Section 3.10.  The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Security Registrar.


 


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


 


Section
3.12. 
Ranking.  The
indebtedness of the Company arising under or in connection with this Indenture
and every outstanding Security issued under this Indenture from time to time
constitutes and will constitute a senior unsecured general obligation of the
Company, ranking equally with other existing and future senior unsecured and
unsubordinated Indebtedness of the Company and ranking senior in right of
payment to any future Indebtedness of the Company that is expressly made
subordinate to the Securities by the terms of such Indebtedness.  For purposes of this Section 3.12 only,
“Indebtedness” means, without duplication, the principal or face amount of (i)
all obligations for borrowed money, (ii) all obligations evidenced by
debentures,


 


32

















 


 notes or other similar
instruments, (iii) all obligations in respect of letters of credit or bankers
acceptances or similar instruments (or reimbursement obligations with respect
thereto), (iv) all obligations to pay the deferred purchase price of property
or services, (v) all obligations as lessee which are capitalized in accordance
with generally accepted accounting principles, and (vi) all Indebtedness of
others guaranteed by the Company or any of its Subsidiaries or for which the
Company or any of its Subsidiaries is legally responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds or to invest in,
others).


 


ARTICLE 4


SATISFACTION AND
DISCHARGE


 


Section
4.01. 
Satisfaction And Discharge Of Indenture.  This Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when


 


(a)        either


 


(i)    all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (B) Securities for whose payment money has
theretofore been deposited with the Trustee 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 10.03) have been delivered to the Trustee for
cancellation; or


 


(ii)   all such
Securities not theretofore delivered to the Trustee for cancellation
have become due and payable and the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness evidenced by such
Securities not theretofore delivered to the Trustee for cancellation.


 


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


 


(c)        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 6.07 and, if money shall have been deposited with the
Trustee pursuant to subclause (ii) of Clause (a) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive.


 


Section
4.02.  Application
Of Trust Money.  Subject to
the provisions of the last paragraph of Section 10.03, all money deposited with
the Trustee pursuant to Section 4.01 shall


 


33

















 


be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and Additional Interest Amounts, if any, for whose payment such money has been
deposited with the Trustee.


 


ARTICLE 5


REMEDIES


 


Section
5.01.  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 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):


 


(a)        default in the payment of the Principal
Amount (or premium, if any) or Fundamental Change Repurchase Price on any
Security when it becomes due and payable; or


 


(b)        default in the payment of Additional
Interest Amounts upon any Security, when such amounts become due and payable,
and continuance of such default for a period of 30 days; or


 


(c)        default in the performance of any
covenant, agreement or condition of the Company in this Indenture or the
Securities (other than a default specified in (a) or (b) above), 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
and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or


 


(d)        failure by the Company to give the
Fundamental Change Company Notice; or


 


(e)        the entry by a court having jurisdiction
in the premises of (i) a decree or order for relief in respect of the Company
or any of its significant subsidiaries of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company as 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 (iii) appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, 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


 


(f)         the commencement by the Company or any
of its significant subsidiaries 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


 


34

















 


bankrupt or insolvent, or the consent by it 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 it, or the filing by it of a petition or answer or
consent seeking reorganization or 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 its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due.


 


Section
5.02. 
Acceleration Of Maturity; Rescission And Annulment.  (a)  If an Event of Default (other than those specified in Section
5.01(e) and 5.01(f)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate Principal Amount of
the Outstanding Securities may declare the Principal Amount (or premium, if
any) plus Additional Interest Amounts, if any, on all the Outstanding
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such Principal Amount plus accrued but unpaid Additional Interest Amounts, if
any, shall become immediately due and payable.


 


Notwithstanding the foregoing, in the case of an Event
of Default specified in Section 5.01(e) or 5.01(f), the Principal Amount plus
accrued but unpaid Additional Interest Amounts, if any, on all Outstanding
Securities will ipso facto become
due and payable without any declaration or other Act on the part of the Trustee
or any Holder.


 


(b)        At any time after such a 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
provided, the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:


 


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


 


(A)     the Principal Amount plus accrued but
unpaid Additional Interest Amounts, if any, or Fundamental Change Repurchase
Price, as applicable, on any Securities which have become due otherwise than by
such declaration of acceleration, and


 


(B)      all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.07; and


 


(ii)   all Events of Default, other than the
non-payment of the Principal Amount plus accrued but unpaid Additional Interest
Amounts, if any, on Securities which have


 


35

















 


become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.


 


No such rescission shall affect any subsequent default
or impair any right consequent thereon.


 


Section
5.03.  Other
Remedies.  If an Event of
Default occurs and is continuing, the Trustee may, but shall not be obligated
to, pursue any available remedy to collect the payment of the principal amount
plus accrued but unpaid Additional Interest Amounts, if any, on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.  The Trustee may maintain a
proceeding even if the Trustee does not possess any of the Securities or does
not produce any of the Securities in the proceeding.  A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of, or acquiescence in, the Event of
Default.  No remedy is exclusive of any
other remedy.  All available remedies
are cumulative.


 


Section
5.04.  Collection
Of Indebtedness And Suits For Enforcement By Trustee.  (a) The Company covenants that if:


 


(i)          default is made in the payment of any
Additional Interest Amounts on any Security when such amounts become due and
payable, and such default continues for a period of 30 days, or


 


(ii)         default is made in the payment of the
Principal Amount plus accrued but unpaid Additional Interest Amounts, if any,
at the Stated Maturity thereof or in the payment of the Fundamental Change Repurchase Price in respect of any
Security,


 


the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.


 


Payments of principal, premium, if any, and Additional
Interest Amounts, if any, on the notes, if any, that are not made when due will
accrue interest at the annual rate of 1% above the then applicable interest
rate from the required payment date.


 


Section
5.05.  Trustee May
File Proofs Of Claim.  In
case of any judicial proceeding relative to the Company (or any other obligor
upon the Securities), its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims 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 Holder 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, to pay to the Trustee
any amount due it for


 


36

















 


the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 6.07.


 


No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.


 


Section
5.06.  Application
Of Money Collected.  Any
money collected by the Trustee pursuant to this Article 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 to Holders, 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 6.07; and


 


SECOND:  To the
payment of the amounts then due and unpaid on the Securities for the Principal
Amount, Fundamental Change Repurchase Price or Additional Interest Amounts, if
any, as the case may be, 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.


 


Section
5.07.  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 (other than in the case of an
Event of Default specified in Section 5.01(a) or 5.01(b)), unless:


 


(i)          such Holder has previously given
written notice to the Trustee of a continuing Event of Default;


 


(ii)         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;


 


(iii)        such Holder or Holders have offered to
the Trustee indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in compliance with such request;


 


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


 


(v)        no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities;


 


it being understood and intended that no one or more Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference


 


37

















 


over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders.


 


Section
5.08. 
Unconditional Right Of Holders To Receive Payment.  Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the
Principal Amount, Fundamental Change Repurchase Price or Additional Interest
Amounts, if any, in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities or on or after any
Fundamental Change Repurchase Date, as applicable, and to convert the
Securities in accordance with Article 13, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of such
Holder.  For purposes of clarification,
prior to the occurrence of a Fundamental Change, the provisions relating to the
right to receive payment upon a Fundamental Change Repurchase Date may be
modified in the manner set forth in Section 9.02.


 


Section
5.09.  Restoration
Of Rights And Remedies.  If
the Trustee or any Holder 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 shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.


 


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 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders 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 an
acquiescence therein.  Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.


 


Section
5.12.  Control By
Holders.  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:


 


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


 


38

















 


(ii)         the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.


 


Section
5.13.  Waiver Of
Past Defaults.  The Holders
of not less than a majority in Principal Amount of the Outstanding Securities
may on behalf of the Holders of all the Securities waive any past Default
hereunder and its consequences, except a Default:


 


(i)          Described in Section 5.01(a) or
5.01(b); or


 


(ii)         in respect of a covenant or provision
hereof which under Article 9 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.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, in either case in
respect of the Securities, a court may require any party litigant in such suit
to file an undertaking to pay the costs of the suit, and the court may assess
reasonable costs, including reasonable attorney’s fees, against any party
litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant; but the provisions of this
Section 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 for the
enforcement of the payment of the Principal Amount or accrued but unpaid
Additional Interest Amounts, if any, on any Security on or after Maturity of
such Security or the Fundamental Change Purchase Price.


 


Section
5.15.  Waiver Of
Stay 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, or extension law wherever enacted, now
or at any time hereafter in force, which 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 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 6


THE TRUSTEE


 


Section
6.01.  Certain
Duties And Responsibilities.  The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act.  In case an Event of
Default with respect to the Securities has occurred (which has not been cured
or waived), the Trustee shall exercise the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in


 


39

















 


their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.  Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.  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.


 


Section
6.02.  Notice Of
Defaults.  The Trustee shall
give the Holders notice of any Default hereunder within 60 days after the
occurrence thereof or, if later, within 15 days after it is known to the
Trustee, unless such Default shall have been cured or waived before the giving
of such notice; provided, that
(except in the case of any Default in the payment of Principal Amount, premium
or Additional Interest Amount, if any, on any of the Securities or the Fundamental
Change Repurchase Price), the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors or trustees and/or a
Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interest of the holders of Securities.


 


Section
6.03.  Certain
Rights Of Trustee.  Subject
to the provisions of Section 6.01:


 


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


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


 


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


 


(d)        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;


 


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


 


(f)         the Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or


 


40

















 


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


 


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


 


(h)        the Trustee shall not be charged with
knowledge of any Default or Event of Default with respect to the Securities
unless either (i) a Responsible Officer shall have actual knowledge of such
Default or Event of Default or (ii) written notice of such Default or Event of
Default shall have been given to the Trustee by the Company or any other
obligor on such Securities or by any Holder of such Securities;


 


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


 


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


 


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


 


Section
6.04.  Not Responsible
For Recitals.  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 or of the Securities.  The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.


 


Section
6.05.  May Hold
Securities.  The Trustee, any
Paying Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Section 6.08 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.


 


Section
6.06.  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


 


41

















 


under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.


 


Section
6.07.  Compensation
And Reimbursement.  The
Company agrees:


 


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


 


(ii)         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


 


(iii)        to indemnify the Trustee and any
predecessor Trustee for, and to hold it harmless against, any loss, liability
or expense including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) 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 (whether assessed by the Company, by any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.


 


The obligations of the Company under this Section 6.07
shall survive the resignation or removal of the Trustee and the satisfaction
and discharge of this Indenture.  To
secure the Company’s payment obligations in this Section 6.07, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on the Securities.  Such lien
shall survive the resignation or removal of the Trustee and the satisfaction
and discharge of this Indenture.  When
the Trustee incurs expenses or renders services after a Default or an Event of
Default specified in Section 5.01(e) and 5.01(f) hereof occurs, the expenses
and the compensation for the services (including, the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
U.S. Code, Title 11 or any other similar foreign, federal or state law for the
relief of debtors.


 


Section
6.08. 
Disqualification; Conflicting Interests.  If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.


 


Section
6.09.  Corporate
Trustee Required; Eligibility.  There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. 
If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said


 


42

















 


supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


Section
6.10.  Resignation
And Removal; Appointment Of Successor.   
(a)  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 under Section 6.11.


 


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


 


(c)        The Trustee may be removed at any time
by Act of the Holders of a majority in Principal Amount of the Outstanding
Securities, delivered to the Trustee and to the Company.  If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days after
the notice of removal, the Trustee being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities.


 


(d)        If at any time:


 


(i)          the Trustee shall fail to comply with
Section 6.08 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or


 


(ii)         the Trustee shall cease to be eligible
under Section 6.09 and shall fail to resign after written request therefor by
the Company or by any such Holder, or


 


(iii)        the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent, or


 


(iv)       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, (A) the Company by a Company Order may remove
the Trustee, or (B) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


(e)        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 Company Order, shall promptly appoint
a successor Trustee.  If, within one year
after such resignation, removal or


 


43

















 


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 Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, 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 and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.


 


(f)         The Company shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 1.06.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


Section
6.11.  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 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 for
more fully and certainly vesting in and confirming 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 qualified
and eligible under this Article.


 


Section
6.12.  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 the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and 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.


 


Section
6.13. 
Preferential Collection Of Claims Against.  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).


 


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Article 7


HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY


 


Section
7.01.  Company To
Furnish Trustee Names And Addresses Of Holders.  The Company will furnish or cause to be furnished to
the Trustee:


 


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


 


(ii)         at such other times as the Trustee may
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;


 


excluding from any
such list names and addresses received by the Trustee in its capacity as
Security Registrar; provided, however,
that no such list need be furnished so long as the Trustee is acting as
Security Registrar.


 


Section
7.02. 
Preservation Of Information; Communications To Holders.  (a)  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 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar.  The Trustee may destroy any
list furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.


 


(b)        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.


 


(c)        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
7.03.  Reports By
Trustee.  (a)  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.  Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than July 15 in each calendar year, commencing in
July 15, 2003.  Each such report shall
be dated as of a date not more than 60 days prior to the date of transmission.


 


(b)        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 shall notify the Trustee promptly whenever the
Securities become listed on any stock exchange or of any delisting thereof.


 


Section
7.04.  Reports By
Company.  The Company shall
file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such


 


45

















 


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.  In the event the Company is not subject to
Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.  Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates). 
It is expressly understood that materials transmitted electronically by
the Company to the Trustee shall be deemed filed with the Trustee for purposes
of this Section 7.04.


 


Article 8


CONSOLIDATION, MERGER, CONVEY,
TRANSFER OR LEASE


 


Section
8.01.  Company May
Consolidate, Etc., Only On Certain Terms. 
The Company shall not consolidate with or merge into any
other Person, unless:


 


(a)        either (i) the Company shall be the
continuing Person or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety (the “Surviving
Entity”), (1) shall be organized and validly existing under the laws
of the United States of America, any State thereof or the District of Columbia
and (2) the Surviving Entity shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, all of the
obligations of the Company under the Securities and this Indenture;


 


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


 


(c)        the Company or the Surviving Entity 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 comply with this Article 8 and Article
9, respectively.


 


Section
8.02.  Successor
Substituted.  Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 8.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except


 


46

















 


in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.


 


ARTICLE 9


SUPPLEMENTAL INDENTURES


 


Section
9.01. 
Supplemental Indentures Without Consent Of Holders.  Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may amend, modify or supplement this
Indenture or the Securities, in form satisfactory to the Trustee, for any of
the following purposes:


 


(i)          to evidence the succession of another
Person to the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or


 


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


 


(iii)        to provide for a successor Trustee with
respect to the Securities; or


 


(iv)       to add any additional Events of Default
with respect to the Securities; or


 


(v)        to cure any ambiguity or defect, to
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided that
such action pursuant to this clause (iv) shall not adversely affect the
interests of the Holders in any material respect; or


 


(vi)       to secure the Securities; or


 


(vii)      to reduce the Conversion Price; provided,
however, that such reduction in the Conversion Price is in
accordance with the terms of this Indenture or shall not adversely affect the
interests of the Holders of Securities (after taking into account tax and other
consequences of such reduction) in any material respect; or


 


(viii)     to supplement any of the provisions of the
Indenture to such extent as shall be necessary to permit or facilitate the
discharge of the Securities; provided, however that such change or
modification does not adversely affect the interests of the Holders of the
Securities; or


 


(ix)        to make any changes or modifications
necessary in connection with the registration of the Securities under the
Securities Act as contemplated in the Registration Rights Agreement; provided,
however, that such change or modification does not adversely affect
the interests of the Holders of Securities; or


 


47

















 


(x)         to add or modify any other provisions
herein with respect to matters or questions arising hereunder which the Company
and the Trustee may deem necessary or desirable and which would not reasonably
be expected to adversely affect the interests of the Holders of Securities in
any material respect; or


 


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


 


(xii)       to comply with any requirements of the
Commission in connection with the qualification of this Indenture under the
Trust Indenture Act.


 


Section
9.02.  Supplemental
Indentures With Consent Of Holders.  (a)
With the consent of the Holders of not less than a majority in
Principal Amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, 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 under this Indenture; provided,
however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:


 


(i)          change the stated Maturity of any
Security; or


 


(i)          reduce the Principal Amount of, or the
premium amount of, any Security; or


 


(ii)         reduce the amount of principal payable
upon acceleration of the Stated Maturity of any Security after the occurrence
of an Event of Default giving rise to such acceleration; or


 


(iii)        reduce the Fundamental Change Repurchase
Price of any Security; or


 


(iv)       after the occurrence of a Fundamental
Change, make any change that adversely affect the right of Holders of the
Securities to require the Company to repurchase such Securities in accordance
with the terms thereof and this Indenture; or


 


(v)        change the place or the currency of any
payment amount of any Security from U.S. Dollars or shares of Additional Stock
as provided herein; or


 


(vi)       make any change that impairs the right of
Holders of Securities to convert any Security; or


 


(vii)      make any change that impairs the right of
Holders to institute suit for payment of the Securities; or


 


(viii)     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


 


48

















 


provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture; or


 


(ix)        change the ranking of the notes in any
manner that adversely affects the rights of Holders of Securities under this
Indenture;


 


(x)         reduce the percentage of the principal
amount of the outstanding Securities the written consent or affirmative vote of
whose Holders is required to take specific actions under the Indenture; or


 


(xi)        modify the obligation of the Company to
maintain an agency in The City of New York as required under this Indenture; or


 


(xii)       modify any of the provisions of this
Section or Section 5.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby.


 


(b)        The Holders of not less than a majority
in aggregate Principal Amount of the Outstanding Securities may, on behalf of
the Holders of all of the Securities, waive any past default and its
consequences under this Indenture, except a default (i) in the payment of the
Principal Amount of or any premium or Additional Interest Amount, if any, on or
with respect to the Securities or (ii) in respect of a covenant or provision
that cannot be modified without the consent of the Holder of each Security
affected thereby as set forth in paragraph (a) above.


 


It shall not be necessary for any Act of Holders 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.


 


Section
9.03.  Execution
Of Supplemental Indentures.  In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, in addition
to the documents required by Section 1.02, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.  Subject to the preceding
sentence, the Trustee shall sign such supplemental indenture if the same does
not adversely affect the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.  The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which adversely affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.


 


Section
9.04.  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
shall be bound thereby.


 


49

















 


Section
9.05.  Conformity
With Trust Indenture Act.  Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.


 


Section
9.06.  Reference
In Securities To Supplemental Indentures. 
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article shall 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
Trustee and the Company, 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 10


COVENANTS


 


Section
10.01. 
Payments.  The Company
shall duly and punctually make all payments in respect of the Securities in
accordance with the terms of the Securities and this Indenture.


 


Any payments made or due pursuant to this Indenture
shall be considered paid on the applicable date due if by 10:00 a.m., New York
City time, on such date the Paying Agent holds, in accordance with this Indenture,
cash or securities, if permitted hereunder, sufficient to pay all such amounts
then due.  Payment of the principal of
and Additional Interest Amounts, if any, on the Securities shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts or in Applicable Stock, as
the case may be.


 


Section
10.02.  Maintenance
Of Office Or Agency.  The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
repurchase or conversion 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 the Corporate Trust Office of the Trustee.  The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.


 


The Company may also from time to time designate one
or more other offices or agencies (in or outside the Borough of Manhattan, The
City of New York) where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in the Borough of Manhattan, The City of New
York, for such purposes.  The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.


 


50

















 


Section
10.03.  Money For
Security Payments To Be Held In Trust.  If
the Company shall at any time act as its own Paying Agent, it shall, on or
before each due date of any payment in respect of any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to make the payment so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of its action or failure so to act.


 


Whenever the Company shall have one or more Paying
Agents, it will, prior to each due date of any payment in respect of any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.


 


The Company shall 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 (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.


 


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 making of payments in
respect of any Security and remaining unclaimed for two years after such
payment has become due 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; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining shall be
repaid to the Company.


 


Section
10.04.  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 knowledge of the signers thereof the
Company is in Default in the performance and observance of any of the terms,
provisions and


 


51

















 


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.


 


The Company shall deliver to the Trustee, as soon as
possible and in any event within five days after the Company becomes aware of
the occurrence of any Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers’
Certificate setting forth the details of such Event of Default or default and
the action which the Company proposes to take with respect thereto.


 


Section
10.05. 
Existence.  Subject to
Article 8, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders.


 


Section
10.06.  Reports And
Delivery Of Certain Information.  Whether
or not required by the rules and regulations of the Commission, so long as any
Securities are outstanding, the Company shall promptly furnish to the Trustee
(i) all quarterly and annual financial information that is substantially
equivalent to that which would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” section and, with respect to the annual information
only, a report thereon by the Company’s certified independent accountants and
(ii) all reports that are substantially equivalent to that which would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports; provided that
in each case the delivery of materials to the Trustee by electronic means shall
be deemed to be “furnished” to the Trustee for purposes of this Section
10.06.  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).  In addition, whether or
not required by the rules and regulations of the Commission, the Company shall
file a copy of all such information with the Commission for public availability
(unless the Commission will not accept such a filing) and make such information
available to investors who request it in writing.  So long as any of the Securities remain Outstanding, the Company
shall make available the information required by Rule 144A(d)(4) under the
Securities Act to any Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock, or to a prospective purchaser of
any such security designated by any such 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 in connection with the resale of any such security.


 


Section
10.07.  Resale Of
Certain Securities.  During
the period beginning on the Issue Date and ending on the date that is two years
from the Issue Date, the Company shall not resell any Securities which
constitute “restricted securities”
under Rule 144 that have been reacquired


 


52

















 


by any of them.  The Trustee
shall have no responsibility in respect of the Company’s performance of its
agreement in the preceding sentence.


 


Section
10.08.  Book-Entry
System.  If the Securities
cease to trade in the Depositary’s book-entry settlement system, the Company
covenants and agrees that it shall use reasonable efforts to make such other
book–entry arrangements that it determines are reasonable for the
Securities.


 


Section
10.09.  Additional
Interest Amounts Under The Registration Rights Agreement.  If at any time Additional
Interest Amounts become payable by the Company pursuant to the Registration
Rights Agreement, the Company shall promptly deliver to the Trustee a
certificate to that effect and stating (i) the amount of such Additional
Interest Amounts that are payable and (ii) the date on which such Additional
Interest Amounts are payable pursuant to the terms of the Registration Rights
Agreement.  Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Additional Interest Amounts are payable.  If the Company has paid Additional Interest
Amounts directly to the Persons entitled to such Additional Interest Amounts,
the Company shall deliver to the Trustee a certificate setting forth the particulars
of such payment.


 


Section
10.10.  Information
For IRS Filings.  The Company
shall provide to the Trustee on a timely basis such information as the Trustee
requires to enable the Trustee to prepare and file any form required to be
submitted by the Company with the Internal Revenue Service and the Holders of
the Notes.


 


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


 


ARTICLE 11


REDEMPTION AND REPURCHASES


 


Section
11.01.  No
Redemption By The Company.  The
Securities may not be redeemed by the Company prior to the Maturity Date.


 


Section
11.02.  Repurchase
Of Securities At Option Of The Holder Upon Fundamental Change.


 


(a)        General.


 


(i)    If at any time prior to the Maturity Date
there shall have occurred a Fundamental Change, Securities shall be purchased
by the Company at the option of the Holder, in whole or in part, as of the date
that is 30 days after the date of the mailing of the Fundamental Change Company
Notice under Section 11.02(b) (the “Fundamental Change Repurchase Date”) at a
purchase price equal to 100% of the principal amount of the Securities to be
repurchased (the “Fundamental Change Repurchase Price”),


 


53

















 


subject to satisfaction
by or on behalf of any Holder of the requirements set forth in Section
11.02(c).


 


(ii)   Notwithstanding the foregoing provisions, the
Company shall not be required to repurchase the Securities of the Holders
pursuant to this Section 11.02 if the Sale Price per share of Common Stock for
any five Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the Fundamental Change or the public
announcement of the Fundamental Change equals or exceeds 105% of the Conversion
Price of the Securities in effect on each of those five Trading Days.


 


A ‘‘Fundamental Change’’ is any transaction or
event (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) in connection with which all or substantially all of the Common
Stock is exchanged for, converted into, acquired for or constitutes solely the
right to receive, consideration which is not all or substantially all common
stock or American Depositary Shares that (i) is listed on, or immediately after
the transaction or event will be listed on, a United States national securities
exchange, or (ii) is approved, or immediately after the transaction or event
will be approved, for quotation on the NASDAQ National Market or any similar
United States system of automated dissemination of quotations of securities
prices.


 


(b)        Notice of Fundamental Change.  Within 30 days after the occurrence of a
Fundamental Change, the Company shall mail a written notice of Fundamental
Change (the “Fundamental Change Company
Notice”) by first-class mail to the Trustee and to each Holder (and
to beneficial owners as required by applicable law).  The notice shall include a form of Fundamental Change Repurchase
Notice to be completed by the Securityholder and shall state:


 


(i)          the events causing a Fundamental
Change and the date of such Fundamental Change;


 


(ii)         that the Holder has a right to require
the Company to repurchase the Holder’s Securities;


 


(iii)        the date by which the Fundamental Change
Repurchase Notice pursuant to this Section 11.02 must be delivered to the
Paying Agent in order for a Holder to exercise the Fundamental Change
repurchase right;


 


(iv)       the Fundamental Change Repurchase Date;


 


(v)        the Fundamental Change Repurchase Price;


 


(vi)       whether the Fundamental Change Repurchase
Price will be paid in cash or shares of Applicable Stock, or a combination
thereof and, in the case of a combination, the percentage of each;


 


(vii)      if the Company elects to pay the
Fundamental Change Repurchase Price in shares of Applicable Stock or a
combination of cash and shares of Applicable Stock, that the number of shares
of Applicable Stock each Holder will receive will equal the quotient obtained
by dividing the amount of the Fundamental Change Repurchase Price to be paid


 


54

















 


in shares of Applicable
Stock by 97.5% of the average if the Sale Price of the Applicable Stock for the
5 Trading Days immediately preceding the second Business Day immediately
preceding the Fundamental Change Repurchase Date;


 


(viii)     if the Company elects to pay the
Fundamental Change Repurchase Price in shares of Applicable Stock or a
combination of cash and shares of Applicable Stock, the method of calculating
the Sale Price of the shares of Applicable Stock;


 


(ix)        that because the Sale Price of the
shares of Applicable Stock will be determined prior to the Fundamental Change
Repurchase Date, Holders of the Securities will bear the market risk that the
shares of Applicable Stock to be received will decline in value between the
date such Sale Price is determined and the Fundamental Change Repurchase Date;


 


(x)         the name and address of the Paying
Agent and the Conversion Agent;


 


(xi)        the Conversion Price applicable on the
Fundamental Change Company Notice Date;


 


(xii)       that Securities as to which a Fundamental
Change Repurchase Notice has been given may be converted pursuant to Article 13
hereof only if the Fundamental Change Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;


 


(xiii)      that Securities must be surrendered to the
Paying Agent for cancellation to collect payment;


 


(xiv)      that the Fundamental Change Repurchase
Price for any Security as to which a Fundamental Change Repurchase Notice has
been duly given and not withdrawn will be paid promptly following the later of
the Fundamental Change Repurchase Date and the time of surrender of such
Security as described in (xiii);


 


(xv)       the procedures the Holder must follow to
exercise rights under this Section 11.02;


 


(xvi)      the conversion rights, if any, of the
Securities;


 


(xvii)     the procedures for withdrawing a
Fundamental Change Repurchase Notice; and


 


(xviii)    the CUSIP number of the Securities.


 


At the Company’s request, the Trustee shall give such
Fundamental Change Company Notice in the Company’s name and at the Company’s
expense; provided, however, that,
in all cases, the text of such Fundamental Change Company Notice shall be
prepared by the Company.


 


55

















 


(c)        Fundamental Change Repurchase Notice.  A Holder may exercise its right specified in
Section 11.02(a) upon delivery of a written notice of repurchase (a “Fundamental
Change Repurchase Notice”), substantially in the form of Exhibit B
hereto, at any time from the opening of business on the date of the Fundamental
Change Company Notice until the close of business on the Fundamental Change
Repurchase Date, stating:


 


(i)          the certificate number of the Security
which the Holder will deliver to be repurchased;


 


(ii)         the portion of the Principal Amount of
the Security which the Holder will deliver to be repurchased, which portion
must be in a Principal Amount of $1,000 or an integral multiple thereof;


 


(iii)        that such Security shall be repurchased
with respect to the Fundamental Change Repurchase Date pursuant to the terms
and conditions specified in the Securities and in this Indenture; and


 


(iv)       in the event the Company elects, pursuant
to Section 11.03, to pay the Fundamental Change Repurchase Price, in whole or
in part, in shares of Applicable Stock but such portion of the Fundamental
Change Repurchase Price shall ultimately be paid to such Holder entirely in
cash because any of the conditions to payment of the Fundamental Change
Repurchase Price in shares of Applicable Stock is not satisfied prior to 5:00
p.m. (New York City time), on the Business Day immediately preceding the
Fundamental Change Repurchase Date, as set forth in Section 11.03, whether such
Holder elects to (A) withdraw such Fundamental Change Repurchase Notice as to
some or all of the Securities to which such Fundamental Change Repurchase
Notice relates (stating the principal amount and certificate numbers, if any,
or the appropriate Depositary procedures, if applicable, of the Securities as
to which such withdrawal shall relate), or (B) receive cash in respect of the
entire Fundamental Change Repurchase Price for all Securities (or portions
thereof) to which such Fundamental Change Repurchase Notice relates.


 


The delivery of such Security to the Paying Agent
with, or at any time after delivery of, the Fundamental Change Repurchase
Notice (together with all necessary endorsements) at the offices of the Paying
Agent shall be a condition to the receipt by the Holder of the Fundamental
Change Repurchase Price therefor; provided, however, that such Fundamental
Change Repurchase Price shall be so paid pursuant to this Section 11.02 only if
the Security so delivered to the Paying Agent shall conform in all respects to
the description thereof set forth in the related Fundamental Change Repurchase
Notice.


 


If a Holder, in such Holder’s Fundamental Change
Repurchase Notice and in any written notice of withdrawal delivered by such
Holder pursuant to the terms of Section 11.04 fails to indicate such Holder’s
choice with respect to the election set forth in Section 11.02(c)(iv), such
Holder shall be deemed to have elected to receive cash in respect of the entire
Fundamental Change Repurchase Price for all Securities subject to such
Fundamental Change Repurchase Notice in the circumstances set forth in such
Section 11.02(c)(iv).


 


56

















 


The Company shall repurchase from the Holder thereof,
pursuant to this Section 11.02, a portion of a Security, so long as the
Principal Amount of such portion is $1,000 or an integral multiple
thereof.  Provisions of this Indenture
that apply to the repurchase of all of a Security also apply to the repurchase
of such portion of such Security.


 


Any repurchase by the Company contemplated pursuant to
the provisions of this Section 11.02 shall be consummated by the delivery of
the consideration to be received by the Holder promptly following the later of
the Fundamental Change Repurchase Date and the time of delivery of the
Security;
provided, however, that if the Fundamental Change Repurchase Notice
is delivered after a date which is 2 Business Days prior to the Fundamental
Change Repurchase Date, such payment may be made as promptly after such
Fundamental Change Repurchase Date as is practicable.


 


Notwithstanding anything contained herein to the
contrary, any Holder delivering to the Paying Agent the Fundamental Change
Repurchase Notice contemplated by this Section 11.02(c) shall have the right to
withdraw such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 11.04.


 


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


 


Section
11.03.  The
Company’s Right To Elect Manner Of Payment Of Fundamental Change Repurchase
Price.  (a)  The Securities to be repurchased with respect
to any Fundamental Change Repurchase Date pursuant to Section 11.02(a) may be
paid for at the election of the Company in cash or shares of Applicable Stock,
or in any combination of cash and shares of Applicable Stock, subject to the
conditions set forth in Section 11.03(b). 
The Company shall designate, in the notice of Fundamental Change
delivered pursuant to Section 11.02(b), whether the Company will repurchase the
Securities for cash or shares of Applicable Stock, or, if a combination
thereof, the percentages of the Fundamental Change Repurchase Price in respect
of which it will pay in cash or shares of Applicable Stock; provided, however,  that the Company
will pay cash for fractional interests in shares of Applicable Stock.  For purposes of determining the existence of
potential fractional interests, all Securities subject to repurchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). 
Each Holder whose Securities are repurchased pursuant to Section 11.02
shall receive the same percentage of cash or shares of Applicable Stock in
payment of the Fundamental Change Repurchase Price for such Securities, except
(i) as provided in this Section 11.03(a) with regard to the payment of cash in
lieu of fractional shares of Applicable Stock and (ii) in the event that the Company is unable to purchase the Securities
of a Holder or Holders for shares of Applicable Stock because any necessary
qualifications or registrations of the shares of Applicable Stock under
applicable securities laws cannot be obtained, the Company may purchase the
Securities of such Holder or Holders for cash.  The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Company has given its notice of Fundamental Change to Holders except
in the event of a failure to satisfy, prior to 5:00 p.m. (New York City time),
on the Business Day immediately preceding the Fundamental Change


 


57

















 


Repurchase Date, any condition to the payment of the Fundamental Change
Repurchase Price in whole or in part, in shares of Applicable Stock.


 


(b)        If the Company elects to pay the
Fundamental Change Repurchase Price by delivering shares of Applicable Stock in
lieu of cash or by delivering a combination of Applicable Stock and cash, the
number of shares of Applicable Stock to be issued shall be equal to the
relevant amount of the Fundamental Change Repurchase Price to be paid divided
by 97.5% of the average of the Sale Prices of the Applicable Stock for the 5
consecutive Trading Days immediately preceding the second Business Day
immediately preceding the Fundamental Change Repurchase Date.


 


(c)        The Company will not issue any fraction
of a share of Applicable Stock in payment of the Fundamental Change Repurchase
Price.  Instead, the Company will make a
cash payment (calculated to the nearest cent) equal to such fraction multiplied
by the Sale Price of one share of Applicable Stock on the second Business Day
immediately preceding the Fundamental Change Repurchase Date.  If a Holder elects to have more than one
Security purchased, the number of shares of Applicable Stock shall be based on
the aggregate amount of Securities to be purchased.


 


(d)        The Company’s right to exercise its
election to repurchase Securities through the issuance of shares of Applicable
Stock shall be conditioned upon satisfaction of the following conditions prior
to 5:00 p.m. (New York City time), on the Business Day immediately preceding
the Fundamental Change Repurchase Date:


 


(i)          the registration of such shares of
Applicable Stock to be issued upon repurchase under the Securities Act and the
Exchange Act, in each case, if required;


 


(ii)         any qualification or registration of
such shares of Applicable Stock to be issued upon repurchase under applicable
state securities laws, if necessary, or the availability of an exemption from
such qualification and registration;


 


(iii)        the listing of such shares of Applicable
Stock on a United States national securities exchange or the quotation of such
shares of Applicable Stock on an inter-dealer quotation system of any
registered United States national securities association; and


 


(iv)       the receipt by the Trustee of an
Officers’ Certificate stating (A): that the terms of the issuance of the shares
of Applicable Stock are in conformity with this Indenture; (B) that the shares
of Applicable Stock to be issued in payment of the Fundamental Change
Repurchase Price in respect of Securities have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment of the
Fundamental Change Repurchase Price in respect of Securities, will be validly
issued, fully paid, non assessable and free from preemptive rights; (C) that
the conditions above and the condition set forth in the second succeeding
sentence have been satisfied in all material respects; and (D) the number of
shares of Applicable Stock to be issued for each $1,000 Principal Amount of
Securities and the Sale Price of a share of Applicable Stock on each Trading
Day during the period commencing on the first Trading Day of the period during
which the Sale Price is calculated and ending on the Trading Day immediately
preceding the Fundamental Change Repurchase Date; and


 


58

















 


(v)        the receipt by the Trustee of an Opinion
of Counsel stating that: (A)  the shares
of Applicable Stock to be issued by the Company in payment of the Fundamental
Change Repurchase Price in respect of Securities have been duly authorized, and
when issued and delivered pursuant to the terms of this Indenture in payment of
the Fundamental Change Repurchase Price in respect of Securities, will be
validly issued, fully paid and non assessable and, to the best of such
counsel’s knowledge, free from preemptive rights under the Company’s
certificate of incorporation, bylaws or any material contract; and (B) the
conditions in clause (i) above have been satisfied in all material respects.


 


If the foregoing conditions are not satisfied with
respect to a Holder or Holders prior to 5:00 p.m. (New York City time) on the
Business Day immediately preceding the Fundamental Change Repurchase Date, and
the Company has elected to repurchase the Securities pursuant to this Section
11.03, in whole or in part, through the issuance of shares of Applicable Stock,
the Company shall pay the entire Fundamental Change Repurchase Price of the
Securities of such Holder or Holders in cash. 
Upon determination of the actual number of shares of Applicable Stock to
be issued upon repurchase of Securities, the Company shall be required to
disseminate a press release through a public medium as is customary for such a
press release.


 


Section
11.04.  Effect Of
Fundamental Change Repurchase Notice.  Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section 11.02(c), the Holder of the Security in respect of which
such Fundamental Change Repurchase Notice was given shall (unless such
Fundamental Change Repurchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Fundamental Change
Repurchase Price with respect to such Security. Such Fundamental Change Repurchase
Price shall be paid to such Holder, subject to receipt of funds by the Paying
Agent, promptly following the later of (x) the Fundamental Change Repurchase
Date with respect to such Security (provided the conditions in Section 11.02(c)
have been satisfied) and (y) the time of delivery of such Security to the
Paying Agent by the Holder thereof in the manner required by Section
11.02(c).  Securities in respect of
which a Fundamental Change Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article 13 hereof on or after the date
of the delivery of such Fundamental Change Repurchase Notice unless such
Fundamental Change Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.


 


A Fundamental Change Repurchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Paying Agent in accordance with the procedures set forth in the Fundamental
Change Company Notice at any time prior to the close of business on the
Business Day prior to the Fundamental Change Repurchase Date specifying:


 


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


 


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


 


59

















 


(iii)        the Principal Amount, if any, of such
Security which remains subject to the original Fundamental Change Repurchase
Notice and which has been or will be delivered for repurchase by the Company.


 


There shall be no purchase of any Securities pursuant
to Section 11.02 if there has occurred (prior to, on or after, as the case may
be, the giving, by the Holders of such Securities, of the required Fundamental
Change Repurchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Fundamental Change Repurchase Price with respect
to such Securities). The Paying Agent will promptly return to the respective
Holders of any Securities (x) with respect to which a Fundamental Change
Repurchase Notice has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default
in the payment of the Fundamental Change Repurchase Price with respect to such
Securities) in which case, upon such return, the Fundamental Change Repurchase
Notice with respect thereto shall be deemed to have been withdrawn.


 


Section
11.05.  Deposit Of
Fundamental Change Repurchase Price.  Prior
to 10:00 a.m. (New York City time) on the Business Day following the
Fundamental Change Repurchase Date, the Company shall deposit with the Trustee
or with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of
any of them is acting as the Paying Agent, shall segregate and hold in trust as
provided herein) an amount of cash (in immediately available funds if deposited
on such Business Day) and/or Applicable Stock, if permitted hereunder,
sufficient to pay the aggregate Fundamental Change Repurchase Price of all the
Securities or portions thereof which are to be repurchased on such Fundamental
Change Repurchase Date.


 


If the Paying Agent holds, in accordance with the
terms hereof, at 10:00 a.m. (New York City time) on the Business Day immediately
following the applicable Fundamental Change Repurchase Date, cash and/or
Applicable Stock, if permitted hereunder, sufficient to pay the Fundamental
Change Repurchase Price of any Securities for which a Fundamental Change
Repurchase Notice has been tendered and not withdrawn pursuant to Section
11.04, then, immediately after such Fundamental Change Repurchase Date, such
Securities will cease to be outstanding, and the rights of the Holders in
respect thereof shall terminate (other than the right to receive the
Fundamental Change Repurchase Price upon delivery of such Securities).


 


As soon as practicable on and after the Fundamental
Change Repurchase Date, the Company shall deliver to each Holder entitled to
receive shares of Applicable Stock through the Paying Agent, a certificate
(other than in the case of Holders of Securities in book-entry form with the
Depositary, which shares shall be delivered in accordance with the Depositary
customary practices) for the number of full shares of Applicable Stock issuable
in payment of the Fundamental Change Repurchase Price and cash in lieu of any
fractional interests.  The person in
whose name the certificate for the shares of Applicable Stock is registered
shall be treated as a holder of record of Applicable Stock on the Fundamental
Change Repurchase Date.  No payment or
adjustment will be made for dividends on the shares of Applicable Stock the
record date for which occurred on or prior to the Fundamental Change Repurchase
Date.


 


Section
11.06.  Securities Repurchased
In Part.  Any Security which
is to be repurchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory


 


60

















 


to the Company and the Trustee duly executed by, the Holder thereof or
such Holder’s attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver 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 portion of the Principal Amount of
the Security so surrendered which is not purchased.


 


Section
11.07.  Covenant To
Comply With Securities Laws Upon Repurchase Of Securities.  In connection with any offer to
repurchase Securities under Section 11.02 hereof (provided that such offer or
repurchase constitutes an “issuer tender offer” for purposes of Rule 13e-4
(which term, as used herein, includes any successor provision thereto) under
the Exchange Act at the time of such offer or purchase), and subject to any
exemptions under applicable law, the Company shall (i) comply with
Rule 13e-4 and Rule 14e-1 (or any successor provision) under the
Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with all
Federal and state securities laws so as to permit the rights and obligations
under Section 11.02 to be exercised in the time and in the manner specified in
Section 11.02.


 


To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Article 11, the
Company’s compliance with such laws and regulations including the extension of
the payment or notice periods contemplated by this Article, shall not in and of
itself cause a breach of their obligations under this Article 11.


 


Section
11.08.  Repayment
To The Company.  The Trustee
and the Paying Agent shall return to the Company any cash or shares of
Applicable Stock that remains unclaimed, together with interest or dividends,
if any, thereon, held by them for the payment of the Fundamental Change
Repurchase Price; provided, however, that to the extent that the
aggregate amount of cash or shares of Applicable Stock deposited by the Company
pursuant to Section 11.05 exceeds the aggregate Fundamental Change Repurchase
Price of the Securities or portions thereof which the Company is obligated to
purchase as of the Fundamental Change Repurchase Date then on the Business Day
following Fundamental Change Repurchase Date the Trustee or the Paying Agent,
as the case may be, shall return any such excess to the Company.


 


ARTICLE 12


PAYMENTS OF ADDITIONAL INTEREST
AMOUNTS ON THE SECURITIES


 


Section
12.01.  Payment Of
Additional Interest Amounts; Interest Rights Preserved.  (a)  Accrued but unpaid Additional Interest Amounts, if any, on any
Security that is payable, and is punctually paid or duly provided for, on any
Additional Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for such
purpose.  Each installment of Additional
Interest Amounts, if any on any Security shall be made by check mailed to the
address of the Holder specified in the register of Securities, or, at the
option of the Holder, at the Corporate Trust Office, in such lawful money of
the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts; provided,
however, that, with respect to any Holder of Securities with an aggregate


 


61

















 


principal amount in excess of $5,000,000, at the request of such Holder
in writing to the Company, Additional Interest Amounts, if any on such Holder’s
Securities shall be paid by wire transfer in immediately available funds in
accordance with the written wire transfer instruction supplied by such Holder
from time to time to the Trustee and Paying Agent (if different from the
Trustee) at least two days prior to the applicable Regular Record Date.  In the case of a permanent Global Security,
interest payable on any Additional Interest Payment Date will be paid to the
Depositary, with respect to that portion of such permanent Global Security held
for its account by Cede & Co. for the purpose of permitting such party to
credit the interest received by it in respect of such permanent Global Security
to the accounts of the beneficial owners thereof.


 


ARTICLE 13


CONVERSION


 


Section
13.01.  Right To
Convert.  (a)  Subject to and upon compliance with the provisions
of this Indenture, each Holder shall have the right, at such Holder’s option,
at any time following the Issue Date of the Securities hereunder through the
close of business on the Final Maturity Date to convert the Principal Amount of
any such Securities, or any portion of such Principal Amount which is $1,000 or
an integral multiple thereof at the Conversion Price then in effect, if:


 


(i)          during any fiscal quarter (beginning
with the third fiscal quarter of 2003) the Sale Price of the Common Stock for
at least 20 Trading Days in the 30 Trading Day period ending on the last
Trading Day of the immediately preceding fiscal quarter exceeds 110% of the
Conversion Price in effect as of the 30th Trading Day of that
period; or


 


(ii)         during the period beginning January 1,
2008 through the Final Maturity Date, the Sale Price of the Common Stock on the
immediately preceding Trading Day was 110% or more of the then current
Conversion Price; or


 


(iii)        as provided in Section 13.01(b).


 


(b)        In addition, in the event that:


 


(i)        (A)      the
Company distributes to Holders of Common Stock rights entitling them to
purchase Common Stock at less than the average Sale Price of the Common Stock
for the 10 Trading Day immediately preceding the declaration for such
distribution;


 


(B)         the Company distributes to Holders of
Common Stock cash or other assets, debt securities or certain rights to
purchase the Company’s securities, which distribution has a per share value as
determined by the Board of Directors of the Company exceeding 15% of the Sale
Price of the Common Stock on the Business Day immediately preceding the
declaration for such distribution; or


 


62

















 


(C)         a Fundamental Change occurs but Holders
of Securities do not have the right to require the Company to purchase their
Securities as a result of such Fundamental Change, because of the provisions
set forth in Section 11.02(a);


 


then, in each case, the Company must notify, in
writing, Holders of Securities of the occurrence of such an event at least 20
days prior to the Ex-Dividend Date for any distribution specified in clauses
(A) and (B) or within 30 days of the occurrence of the Fundamental Change
specified in clause (C), as the case may be. 
Once the Company has given such notice, Holders may surrender their
Securities for conversion at any time (1) until the earlier of the close of
business on the Business Day immediately preceding the Ex-Dividend Date or the
date of announcement by the Company that the distribution will not take place,
in the case of (A) and (B) above or (2) within 30 days of the Fundamental
Change Company Notice, in the case of (C) above.  In the case of a (A) and (B) above, no adjustment shall be made
to the ability of a Holder of Securities to convert if such Holder may
participate in the distribution without conversion.


 


(ii)         the Company becomes party to a
consolidation, merger, binding share exchange or sale of all or substantially
all of the assets of the Company pursuant to which the Common Stock of the
Company would be converted into cash, securities or other property, a Holder
may surrender the Securities for conversion at any time from and after the date
which is 15 days prior to the anticipated effective date of the transaction
until 15 days after the actual date of the transaction. If the Company becomes
party to a consolidation, merger or binding share exchange pursuant to which
the Common Stock of the Company would be converted into cash, securities or
other property, then at the effective time of the transaction, the right to
convert the Securities into Common Stock shall be changed into a right to
convert a Security into the kind and amount of cash, securities or other
property which the Holder would have received if the Holder had converted such
Securities immediately prior to the transaction.  If the transaction also constitutes a Fundamental Change, the
Holder shall have the rights set forth in Article 11 above.


 


(c)        Notwithstanding the foregoing, a
Security in respect of which a Holder has delivered a Fundamental Change
Repurchase Notice exercising such Holder’s option to require the Company to
repurchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with Article 11 hereof prior to the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase
Date, as the case may be.


 


Section
13.02.  Conversion
Procedure.  (a)  Each Security shall be convertible at the
office of the Conversion Agent into fully paid and nonassessable shares
(calculated to the nearest 1/100th of a share) of Common Stock.  The Security will be converted into shares
Common Stock at the Conversion Price therefor.


 


(b)        In order to exercise the conversion
privilege with respect to any Securities in certificated form, the Holder of
any such Securities to be converted, in whole or in part, shall:


 


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(i)          complete and manually sign the
conversion notice provided on the back of the Security (the “Conversion
Notice”) and deliver such notice to a Conversion Agent;


 


(ii)         surrender the Security to a Conversion
Agent;


 


(iii)        furnish appropriate endorsements and
transfer documents, if required; and


 


(iv)       pay any transfer or similar tax, if
required.


 


The date on which the Holder satisfies all of the requirements set
forth in (i) through (iv) above is the “Conversion Date.”  Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. All such Securities
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such Securities, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the Holder or his duly authorized attorney.


 


In order to exercise the conversion privilege with
respect to any interest in Securities in global form, the Holder must complete
the appropriate instruction form for conversion pursuant to the Depositary’s
book-entry conversion program, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or Conversion Agent, and
pay the funds, if any, required by this Section 13.02 and any transfer taxes if
required pursuant to Section 13.06.


 


(c)        As promptly as practicable after
satisfaction of the requirements for conversion set forth above (but in no
event later than 3 Business Days after the Conversion Date), subject to
compliance with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Holder (as if such transfer
were a transfer of the Securities (or portion thereof) so converted), the Company
shall issue and shall deliver to such Holder at the office of the Conversion
Agent, a certificate or certificates for the number of full shares of Common
Stock issuable upon the conversion of such Securities or portion thereof in
accordance with the provisions of this Article and a check or cash in respect
of any fractional interest in respect of a share of Common Stock arising upon
such conversion, as provided in Section 13.03. In case any Securities of a
denomination greater than $1,000 shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of the Securities so surrendered, without charge to him, new Securities
in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Securities.


 


Each conversion shall be deemed to have been effected
as to any such Securities (or portion thereof) on the date on which the
requirements set forth above in this Section 13.02 have been satisfied as to
such Securities (or portion thereof), and the person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the Holder of
record of the shares represented thereby; provided,
however, that in case of any such
surrender on any date when the stock transfer books of the Company shall be
closed, the person or persons in whose name the certificate or certificates for
such shares are to be issued shall be deemed to have become the record Holder
thereof for all purposes on the next day on which such stock transfer books are


 


64

















 


open, but such conversion shall be at the Conversion Price in effect on
the date upon which such Securities shall be surrendered.


 


(d)        Upon the conversion of an interest in Global Securities, the
Trustee (or other Conversion Agent appointed by the Company) shall make a
notation on such Global Securities as to the reduction in the Principal Amount
represented thereby. The Company shall notify the Trustee in writing of any
conversions of Securities effected through any Conversion Agent other than the
Trustee.


 


(e)        Each stock certificate representing Common Stock issued upon
conversion of the Securities that are Restricted Securities shall bear the
legend in substantially the form of Exhibit C hereto.


 


Section
13.03.  Cash Payments In Lieu Of Fractional
Shares.  The Company will not issue
fractional shares of Common Stock upon conversion of Securities. If multiple
Securities shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion shall be
computed on the basis of the aggregate Principal Amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If
any fractional share of stock would be issuable upon the conversion of any
Securities, the Company shall make payment therefor in cash equal to the
fraction of a share of Common Stock otherwise issuable multiplied by the
Current Market Price (as defined in Section 13.05(g) to the Holder of
Securities.


 


Section
13.04.  Adjustment Of Conversion Price.  The Conversion Price shall
be adjusted from time to time by the Company as follows:


 


(a)        In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, pay a dividend or make a
distribution in shares of Common Stock to all holders of its outstanding shares
of Common Stock, then the Conversion Price in effect at the opening of business
on the date following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be adjusted by
multiplying such Conversion Price by a fraction, (i) the numerator of which
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination, and (ii) the denominator of
which shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution.  Such reduction becomes effective immediately after the opening of
business on the day following the date fixed for such determination. If any
dividend or distribution of the type described in this Section 13.04(a) is
declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend or
distribution had not been declared.


 


(b)           In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, issue to all holders of its outstanding shares of
Common Stock rights or warrants entitling them (for a period of not more than
60 days after such issuance) to subscribe for or purchase shares of Common Stock
(or securities convertible into or exchangeable or exercisable for Common
Stock) at a price per share (or having a conversion, exchange or exercise price
per share) less than the Sale Price of Common Stock on the Business Day
immediately preceding the date of announcement of such issuance, the Conversion
Price


 


65

















 


shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date of such announcement by a fraction, (i) the numerator of which shall be
the number of shares of Common Stock outstanding at the close of business on
the date of announcement, plus the number of shares which the aggregate
offering price of the total number of shares so offered would purchase at such
Sale Price of Common stock on the Business Day immediately preceding the date
of announcement of such issuance determined by multiplying such total number of
shares so offered by the exercise price of such rights or warrants and dividing
the product so obtained by such Sale Price), and (ii) the denominator of which
shall be the number of shares of Common Stock outstanding at the close of
business on the date of announcement plus the total number of additional shares
of Common Stock offered for subscription or purchase or into which convertible,
exchangeable or exercisable, securities so offered are convertible,
exchangeable or exercisable.


 


Such adjustment shall become effective immediately
after the opening of business on the day following the date of announcement of
such issuance.


 


To the extent that shares of Common Stock (or
securities convertible into or exchangeable or exercisable for shares of Common
Stock) are not delivered pursuant to such rights or warrants, upon the
expiration or termination of such rights or warrants, the Conversion Price
shall be readjusted to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on
the basis of the delivery of only the number of shares of Common Stock (or
securities convertible into or exchangeable or exercisable for shares of Common
Stock) actually delivered.  In the event
that such rights or warrants are not so issued, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
the date fixed for the determination of stockholders entitled to receive such
rights or warrants had not been fixed. 
In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such Sale Price,
and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received for such rights or
warrants and the value of such consideration, if other than cash, to be
determined in good faith by the Board of Directors of the Company.


 


(c)           In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock, then the Conversion Price in
effect at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and conversely,
in case the Company shall, at any time or from time to time while any of the
Securities are outstanding, combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock, then the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased.  In each such case, the Conversion Price
shall be adjusted by multiplying such Conversion Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such subdivision or combination and the denominator of
which shall be the number of shares of Common Stock outstanding immediately
after giving effect to such subdivision or combination.  Such reduction or increase, as the case may
be, shall become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes effective.


 


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(d)           (i)
In case the Company shall, at any time or from time to time while the
Securities are outstanding, by dividend or otherwise, distribute to all holders
of its Common Stock shares of any class of capital stock of the Company (other
than any dividends or distributions to which Section 13.04(a) applies) or
evidences of its indebtedness or assets (including securities, but excluding
any rights or warrants referred to in Section 13.04(b), and excluding any
dividend or distribution (x) paid exclusively in cash or (y) referred to in
Section 13.04(a)) (any of the foregoing hereinafter in this Section 13.04(d)) called the “Distributed Securities”), then, in each
such case, the Conversion Price shall be reduced so that the same shall be
equal to the price determined by multiplying the Conversion Price in effect on
the Record Date with respect to such distribution by a fraction:


 


(A)        the numerator of which shall be the
Current Market Price per share of the Common Stock on such Record Date less the
fair market value (as determined by the Board of Directors, whose good faith
determination shall be conclusive, and described in a resolution of the Board
of Directors) on the Record Date of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock, and


 


(B)         the denominator of which shall be the
Current Market Price per share of the Common Stock.


 


Such reduction shall become effective immediately
prior to the opening of business on the day following the Record Date for such
distribution.  If the Board of Directors
determines the fair market value of any distribution for purposes of this
Section 13.04(d) by reference to the actual or when issued trading market for
any securities, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common Stock.


 


Each share of Common Stock issued upon conversion of
securities pursuant to this Article 13 shall be entitled to receive the
appropriate number of common stock or preferred stock purchase rights, if any,
as may be provided by the terms of any stockholder rights plan adopted by the
Company (notwithstanding the occurrence of an event causing such rights to
separate from the Common Stock at or prior to the time of conversion). Any
distribution of rights or warrants pursuant to a stockholder rights plan
complying with the requirements set forth in the immediately preceding sentence
of this paragraph shall not constitute a distribution of rights or warrants for
the purposes of Section 13.04(b) or this Section 13.04(d).


 


(ii)           For the purposes of this  Section 13.04(d), Rights or warrants
distributed by the Company to all holders of its Common Stock entitling them to
subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger
Event”): (A) are deemed to be transferred with such shares of Common
Stock; (B) are not exercisable; and (C) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 13.04(d) (and no adjustment to the Conversion Price
under this Section 13.04(d) will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any


 


67

















 


is required) to the Conversion Price shall be made
under this Section 13.04(d). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of this Indenture,
are subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or
other assets, then the date of the occurrence of any and each such event shall
be deemed to be the date of distribution and record date with respect to new
rights or warrants with such rights (and a termination or expiration of the
existing rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Price under this Section 13.04(d) was made, (1) in the case of any such rights
or warrants which shall all have been redeemed or repurchased without exercise
by any Holders thereof, the Conversion Price 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 applicable holders of Common Stock as of the
date of such redemption or repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by any
holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.


 


(iii)          For purposes of this Section 13.04(d)
and Section 13.04(a), 13.04(b), and 13.04(c), any dividend or distribution to
which this Section 13.04(d) is applicable that also includes (x) shares of
Common Stock, (y) rights or warrants to subscribe for or purchase shares of
Common Stock or securities convertible into or exercisable or exchangeable for
Common Stock to which Section 13.04(b) applies (or any combination thereof), or
(z) a subdivision or combination of shares of Common Stock to which Section
13.04(c) applies or shall be deemed instead to be:


 


(A)          a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or warrants,
other than such shares of Common Stock, such rights or warrants or securities
convertible into or exercisable or exchangeable for Common Stock or such
subdivision or combination to which Section 13.04(a), 13.04(b), and 13.04(c)
apply, respectively (and any Conversion Price reduction required by this
Section 13.04(d) with respect to such dividend or distribution shall then be
made), immediately followed by,


 


(B)           a dividend or distribution of such
shares of Common Stock, such rights or warrants or securities convertible into
or exercisable or exchangeable for Common Stock or such subdivision or
combination (and any further Conversion Price reduction required by Section
13.04(a), 13.04(b), and 13.04(c) with respect to such dividend or distribution
shall then be made), except:


 


(1)           the Record Date of such dividend or
distribution shall be substituted as (x) “the date fixed for the determination
of stockholders


 


68

















 


entitled to receive such dividend or other
distribution,” and “the date fixed for such determination” within the meaning
of Section 13.04(a), (y) “the date fixed for the determination of stockholders
entitled to receive such rights or warrants,” within the meaning of Section
13.04(b) and (z) “the day upon which such subdivision becomes effective” and
“the day upon which such combination becomes effective” within the meaning of
Section 13.04(c); and


 


(2)           any shares of Common Stock included
in such dividend or distribution shall not be deemed “outstanding at the close
of business on the date fixed for such determination” within the meaning of
Section 13.04(a) and any reduction or increase in the number of shares of
Common Stock resulting from such subdivision or combination shall be
disregarded in connection with such dividend or distribution.


 


(e)           In
case the Company shall, at any time or from time to time while any of the
Securities are outstanding, by dividend or otherwise, distribute to all holders
of its shares of Common Stock, cash (excluding any cash that is distributed
upon a merger or consolidation to which Section 13.05 applies or as part of a
distribution referred to in Section 13.04(d)), in an aggregate amount that,
combined together with:


 


(i)    the aggregate amount of any other such
distributions to all holders of shares of Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to this Section 13.04(e) has been made;
and


 


(ii)   the aggregate amount of any cash, plus the
fair market value (as determined by the Board of Directors of the Company,
whose good faith determination shall be conclusive and described in a
resolution of the Board of Directors of the Company) of other consideration
paid in respect of any tender offer by the Company or any of its subsidiaries
for all or any portion of the shares of Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to Section 13.04(f) has been made;


 


exceeds 10% of the product of the Sale Price of the Common Stock on the
Record Date with respect to such distribution, times the number of shares of
Common Stock outstanding on such date (such excess over 10%, the “Excess Amount”), then, and in each case,
immediately after the close of business on such date, the Conversion Price
shall be adjusted so that the same shall equal the rate determined by
multiplying the Conversion Price in effect immediately prior to the close of
business of such Record Date by a fraction:


 


(A)               the numerator of which shall be
equal to the Current Market Price on the Record Date, less an amount equal to
the quotient of (y) the Excess Amount and (z) the number of shares of Common
Stock outstanding on the Record Date; and


 


69

















 


(B)               the denominator of which shall be
equal to the Current Market Price on such date.


 


(f)            In
case a tender offer made by the Company or any of its subsidiaries 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 good
faith determination shall be conclusive and described in a resolution of the
Board of Directors) that combined together with:


 


(i)    the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose good faith determination
shall be conclusive and described in a resolution of the Board of Directors),
as of the expiration of such tender offer, of any other consideration payable
in respect of any other tender offers, by the Company or any of its
subsidiaries for all or any portion of the Common Stock expiring within the 12
months preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to this Section 13.04(f) has been made, and


 


(ii)   the aggregate amount of any distributions to
all holders of shares of Common Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to Section 13.04(e) has been made;


 


exceeds 10% of the product of the Sale Price of the Common Stock 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) at 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 Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to close of business on the date of the Expiration Time by a fraction (A)
the numerator of which shall be the product of (1) the number of shares of
Common Stock outstanding (including any tendered shares) at the Expiration Time
and (2) the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and (B) the denominator of which shall be the
sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender offer) 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”) and (y) the product of
the number of shares of Common Stock outstanding (less any Purchased Shares) at
the Expiration Time and the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time.  Such reduction (if any) shall become effective immediately prior
to the opening of business on the Business Day following the Expiration Time.
In the event that the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such tender offer had not been made. If the application of
this Section 13.04(f) to any


 


70

















 


tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section 13.04(f).


 


(g)           For
purposes of this Section 13.04, the following terms shall have the meaning
indicated:


 


(1)           “Current
Market Price” on any date means the average of the Sales Prices per
share of Common Stock for the 10 consecutive Trading Days immediately preceding
the day before the record date (or, if earlier, the Ex-Dividend date) with
respect to any distribution, issuance or other event requiring such
computation.


 


(2)           “fair
market value” shall mean the amount which a willing buyer would pay
a willing seller in an arm’s length transaction.


 


(3)           “Record
Date” shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of Common Stock have the right
to receive any cash, securities or other property or in which the Common Stock
(or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).


 


(h)           The
Company may make such decreases in the Conversion Price, in addition to any
adjustments required by Section 13.04(a), 13.04(b), 13.04(c), 13.04(d),
13.04(e) or 13.04(f), as the Board of Directors considers to be advisable to
avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or rights
to acquire stock) or from any event treated as such for income tax purposes.


 


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


 


(j)            No
adjustment in the Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this Section 13.04(j) are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article 13 shall be made by the Company
and shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be. No adjustment need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest. To the


 


71

















 


extent the Securities become convertible into cash, assets, property or
securities (other than capital stock of the Company), no adjustment need be
made thereafter as to the cash, assets, property or such securities. Interest
will not accrue on the cash.


 


(k)           Whenever
the Conversion Price is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent an Officers’ Certificate setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until a
Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Price and may assume without inquiry that the last
Conversion Price of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Price setting forth the adjusted Conversion Price
and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Price to each Holder of Securities
at such Holder’s last address appearing on the list of Security holders
provided for in Section 3.05 of this Indenture, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.


 


(l)            In
any case in which this Section 13.04 provides that an adjustment shall become
effective immediately after a Record Date for an event, the Company may defer
until the occurrence of such event (i) issuing to the Holder of any Securities
converted after such Record Date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such Holder any amount in cash in lieu of any fraction pursuant to Section
13.03.


 


(m)          For
purposes of this Section 13.04, 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 so long as the Company does not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.


 


(n)           No
adjustment to the Conversion Price shall be made pursuant to this Section 13.04
if the Holders of the Securities may participate in the transaction that would
otherwise give rise to an adjustment pursuant to this Section 13.04.


 


Section
13.05.  Effect Of
Reclassification, Consolidation, Merger Or Sale.  If any of the following events occur, namely:


 


(i)    any reclassification or change of shares of
Common Stock issuable upon conversion of the Securities (other than a change in
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination, or any other change for
which an adjustment is provided in Section 13.04(c));


 


(ii)   any consolidation or merger or combination to
which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than in par value, or from par


 


72

















 


value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in outstanding shares of
Common Stock; or


 


(iii)  any sale or conveyance of all or substantially
all of the properties and assets of the Company to any other person as a result
of which holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange for
such Common Stock


 


then the Company or the successor or purchasing person, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act of 1939 as in force at the date of execution of
such supplemental indenture) providing that such Securities shall be
convertible into the kind and amount of shares of stock, securities or other
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance by a holder of a
number of shares of Common Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of authorized shares of
Common Stock available to convert all such Securities) immediately prior to
such reclassification, change, consolidation, merger, combination, sale or
conveyance, assuming such holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of securities, cash or other
property receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance (provided
that, if the kind or amount of stock, securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance is not the same for each share of
Common Stock in respect of which such rights of election shall not have been
exercised (“nonelecting share”),
then for the purposes of this Section 13.05, the kind and amount of stock,
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article 13.  If, in the case of any such
reclassification, change, consolidation, merger, combination, sale or
conveyance, the stock, securities or other property or assets (including cash)
receivable thereupon by a holder of Common Stock includes shares of stock,
securities or other property or assets (including cash) of a corporation other
than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.


 


The Company shall cause notice of the execution of
such supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the register of the Securities maintained by the Registrar,
within 20 days after execution thereof. 
Failure to deliver such notice shall not affect the legality or validity
of such supplemental indenture.  The
above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.  If this Section 13.05
applies to any event or occurrence, Section 13.04 shall not apply.


 


73

















 


Section
13.06.  Taxes On
Shares Issued.  The issue of
stock certificates on conversions of Securities shall be made without charge to
the converting Holder for any documentary, transfer, stamp or any similar tax
in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes 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 such tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the Holder of any
Securities converted, and the Company shall not be required to issue or deliver
any such stock certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has
been paid.


 


Section
13.07.  Reservation
Of Shares; Shares To Be Fully Paid; Compliance With Governmental Requirements;
Listing Of Common Stock.  The
Company shall provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Securities from time to time as such
Securities are presented for conversion (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would
be held by a single Holder).


 


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


 


The Company covenants that all shares of Common Stock
which may be issued upon conversion of Securities shall be newly issued shares
or Treasury shares, shall be duly authorized, validly issued, fully paid and
non-assessable and shall be free from preemptive rights and free from any lien
or adverse claim.


 


The Company shall use its reasonable efforts to list
or cause to have quoted any shares of Common Stock to be issued upon conversion
of Securities on each national securities exchange or over-the-counter or other
domestic market on which the Common Stock is then listed or quoted.


 


Section
13.08. 
Responsibility Of Trustee.  The
Trustee and any other Conversion Agent shall not at any time be under any duty
or responsibility to any Holder of Securities to determine the Conversion Price
or whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. The
Trustee and any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Securities; and the Trustee and any other Conversion
Agent make no representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any


 


74

















 


Securities for the purpose of conversion or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture entered into pursuant
to Section 13.05 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders upon the
conversion of their Securities after any event referred to in such Section
13.05 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 6.01, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, the
Officers’ Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.


 


Section
13.09.  Notice To
Holders Prior To Certain Actions.  In
case,


 


(a)           the
Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Price pursuant to
Section 13.04; or


 


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


 


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


 


(d)           of
the voluntary or involuntary dissolution, liquidation or winding up of the
Company or any of its significant subsidiaries;


 


then, in each case, the Company shall cause to be filed with the
Trustee and the Conversion Agent and to be mailed to each Holder of Securities
at such Holder’s address appearing on the list of Security holders provided for
in Section 3.05 of this Indenture, as promptly as practicable but in any event
at least 15 days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or
occur, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.


 


75

















 


Section
13.10.  Cash
Conversion Option.


 


(a)           In
the event that, on or prior to the date that is five days prior to the Stated
Maturity of a Security (the “Final Notice Date”), a Holder elects to
convert all or any portion of a Security into shares of Common Stock as set
forth in Section 13.01, the Company may choose to satisfy all of its conversion
obligation (the “Conversion Obligation”)
in cash if the Company notifies such Holder through the Trustee of the dollar
amount to be satisfied in cash at any time on or before the date that is two
Business Days following receipt of written notice of conversion as specified in
Section 13.02 (such period, the “Cash
Settlement Notice Period”). 
If the Company timely elects to pay cash for any portion of the shares
of Common Stock otherwise issuable to the Holder, the Holder may retract the
Conversion Notice at any time during the two Business Day period beginning on
the day after the final day of the Cash Settlement Notice Period (a “Conversion Retraction Period”); no such
retraction may be made (and a conversion notice shall be irrevocable) if the
Company does not elect to deliver cash in lieu of shares (other than cash in
lieu of fractional shares).  If the
conversion notice has not been retracted, then settlement (in cash) will occur
on the Business Day following the final Trading Day of the five Trading Day
period beginning on the first Trading Day after the final day of the Conversion
Retraction Period (the “Cash Settlement
Averaging Period”). 
Settlement amounts will be computed as follows:


 


(i)    if the Company elects to satisfy the
Conversion Obligation in shares of Common Stock, the Company will deliver to
such Holder a number of shares of Common Stock equal to  the quotient of the aggregate original
Principal Amount of the Securities to be converted divided by the Conversion
Price;


 


(ii)   if the Company elects to satisfy the
Conversion Obligation in cash, the Company will deliver to such Holder cash in
an amount equal to the product of:


 


(A)        a number equal to the quotient of the
aggregate original Principal Amount of Securities to be converted divided by
the Conversion Price, and


 


(B)         the average Sale Price of the Common
Stock during the Cash Settlement Averaging Period.


 


Notwithstanding the foregoing, a Security in respect
of which a Holder has delivered a Fundamental Change Repurchase Notice
exercising such Holder’s option to require the Company to repurchase such
Security may be converted as described in this Section 13.10(a) only if such
notice of exercise is withdrawn in accordance with the terms of Article 11
hereof.


 


(b)           If
a Holder elects to convert all or any portion of a Security into shares of
Common Stock after the Final Notice Date, the Company may choose to satisfy all
of the Conversion Obligation in cash provided that the Company notifies such
Holder through the Trustee of the dollar amount to be satisfied in cash at any
time on or before the final day of the Cash Settlement Notice Period.  Settlement amounts will be computed and
settlement dates will be determined in the same manner as set forth in (a)
above except that the “Cash Settlement Averaging Period” shall be the 5 Trading
Day period beginning on the first Trading Day after the Stated Maturity.  If the Company timely elects to pay cash for
any portion of the shares of Common Stock


 


76

















 


otherwise issuable to the Holder, the Holder may retract the Conversion
Notice at any time during the Conversion
Retraction Period; no such retraction may be made (and a conversion
notice shall be irrevocable) if the Company does not elect to deliver cash in
lieu of shares (other than cash in lieu of fractional shares).  If the conversion notice has not been
retracted, then settlement (in cash) will occur on the Business Day following
the final day of such Cash Settlement Averaging Period.


 


Section
13.11.  Company
Determination Final.  Any
determination that the Company or the Board of Directors must make pursuant to
this Article 13 shall be conclusive if made in good faith and in accordance
with the provisions of this Article, absent manifest error, and set forth in a
Board Resolution.


 


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.


 


77

















 


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


 


	
   

  	
  YAHOO! INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
  /s/ Susan Decker

  
	
   

  	
   

  	
  Susan Decker

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
  /s/ Frank Leslie

  
	
   

  	
   

  	
  Frank Leslie

  



 


 


78

















 


EXHIBIT A


 


Form of Certificate to Be
Delivered 

in Connection with Transfers 

Pursuant to Regulation S


 


                                ,
       


 


U.S. Bank National Association


180 East Fifth Street


St. Paul, MN 55101


Attention:  Corporate Trust
Department


Fax: (651) 244-0711


 


Re:                               Yahoo!
Inc. (the “Company”) 

Zero Coupon Senior Convertible Notes Due 2008 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed sale of
$[              ]
aggregate Principal Amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, we represent that:


 


1.             the offer of the Notes was not made to a Person in the
United States;


 


2.             either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United States,
or (b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any Person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;


 


3.             no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable (or applicable successor rules);


 


4.             the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act and the conditions of Rule
903(b) or 904(b) of Regulation S, as applicable (or applicable successor
rules) have been satisfied; and


 


5.             We have advised the transferee of the transfer
restrictions applicable to the Notes.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party, in any administrative or


 


A-1

















 


legal proceedings or official inquiry with respect to the matters
covered hereby.  Terms used in this
certificate have the meanings set forth in Regulation S.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Authorized Signature

  	
   

  



 


A-2

















 


EXHIBIT B


Form of Fundamental
Change Repurchase Notice


 


                            ,
           


 


U.S. Bank National Association


180 East Fifth Street


St. Paul, MN 55101


Attention:  Corporate Trust
Department


Fax: (651) 244-0711


 


Re:                               Yahoo!
Inc. (the “Company”) 

Zero Coupon Senior Convertible Notes Due 2008


 


This is a Fundamental Change Repurchase Notice as
defined in Section 11.02 of
the Indenture dated as of April 9, 2003 (the “Indenture”)
between the Company and U.S. Bank National Association, as Trustee.  Terms used but not defined herein shall have
the meanings ascribed to them in the Indenture.


 


Certificate No(s). of Securities:


 


I intend to deliver the following aggregate Principal Amount of
Securities for purchase by the Company pursuant to Section 11.02 of the Indenture (in multiples of
$1,000):


 


$


 


I hereby agree that the Securities will be purchased
as of the Fundamental Change Repurchase Date pursuant to the terms and
conditions thereof and of the Indenture.


 


 


	
   

  	
  Signed:

  	
   

  



 


 


B-1

















 


EXHIBIT C


 


THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, UNITED STATES PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  THE HOLDER HEREOF AGREES THAT UNTIL THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
(1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED
HEREBY EXCEPT (A) TO YAHOO! OR TO ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH
TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE, IT WILL FURNISH
TO EQUISERVE TRUST COMPANY, N.A., AS TRANSFER AGENT (OR SUCCESSOR TRANSFER
AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.  IF THE PROPOSED
TRANSFEREE EQUISERVE TRUST COMPANY, N.A., AS TRANSFER AGENT IS A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO EQUISERVE
TRUST COMPANY, N.A., AS TRANSFER AGENT (OR SUCCESSOR TRANSFER AGENT, AS
APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT 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. 
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY PURSUANT TO


 


C-1

















 


CLAUSE 1(E) ABOVE OR UPON ANY TRANSFER OF THE COMMON
STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION).  AS
USED HEREIN, THE TERMS “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.


 


C-2

















 


Certain Sections of this
Indenture relating to


Sections 310 through 318
of the


Trust Indenture Act of
1939:


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
   

  	
  6.09

  
	
           (a)(2)

  	
   

  	
   

  	
  6.09

  
	
           (a)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
           (a)(4)

  	
   

  	
   

  	
  Not Applicable

  
	
           (b)

  	
   

  	
   

  	
  6.08

  
	
   

  	
   

  	
   

  	
  6.10

  
	
          §
  311(a)

  	
   

  	
   

  	
  6.13

  
	
                   (b)

  	
   

  	
   

  	
  6.13

  
	
  § 312(a)

  	
   

  	
   

  	
  7.01

  
	
   

  	
   

  	
   

  	
  7.02(a)

  
	
           (b)

  	
   

  	
   

  	
  7.02(b)

  
	
           (c)

  	
   

  	
   

  	
  7.02(c)

  
	
  § 313(a)

  	
   

  	
   

  	
  7.03(a)

  
	
           (b)

  	
   

  	
   

  	
  7.03(a)

  
	
           (c)

  	
   

  	
   

  	
  7.03(a)

  
	
           (d)

  	
   

  	
   

  	
  7.03(b)

  
	
  § 314(a)

  	
   

  	
   

  	
  7.04

  
	
           (b)

  	
   

  	
   

  	
  Not Applicable

  
	
           (c)(1)

  	
   

  	
   

  	
  1.02

  
	
           (c)(2)

  	
   

  	
   

  	
  1.02

  
	
           (c)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
           (d)

  	
   

  	
   

  	
  Not Applicable

  
	
           (e)

  	
   

  	
   

  	
  1.02

  
	
  § 315(a)

  	
   

  	
   

  	
  6.01

  
	
           (b)

  	
   

  	
   

  	
  6.02

  
	
           (c)

  	
   

  	
   

  	
  6.01

  
	
           (d)

  	
   

  	
   

  	
  6.01

  
	
           (e)

  	
   

  	
   

  	
  5.14

  
	
  § 316(a)(1)(A)

  	
   

  	
   

  	
  5.12

  
	
           (a)(1)(B)

  	
   

  	
   

  	
  5.13

  
	
           (a)(2)

  	
   

  	
   

  	
  Not Applicable

  
	
           (b)

  	
   

  	
   

  	
  5.08

  
	
           (c)

  	
   

  	
   

  	
  1.04(c)

  
	
  § 317(a)(1)

  	
   

  	
   

  	
  5.03

  
	
           (a)(2)

  	
   

  	
   

  	
  5.04

  
	
           (b)

  	
   

  	
   

  	
  10.03

  
	
  § 318(a)

  	
   

  	
   

  	
  1.07

  



 


i

















 












 


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


 


ii