EX-4.1



 




Exhibit
4.1



EXECUTION VERSION




OSI PHARMACEUTICALS, INC., as Issuer,




and




THE BANK OF NEW YORK, as Trustee




 






INDENTURE




Dated as of January 9, 2008




 






3% Convertible Senior Subordinated Notes Due 2038




 









 






TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE 1	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 1.01.

	 	Definitions
	 	 	1	 
	Section 1.02.

	 	Other Definitions
	 	 	11	 
	Section 1.03.

	 	Trust Indenture Act Provisions
	 	 	12	 
	Section 1.04.

	 	Rules Of Construction
	 	 	13	 
	 
	 	 	 	 	 	 

	 

	 	ARTICLE 2	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	THE SECURITIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.01.

	 	Form and Dating
	 	 	13	 
	Section 2.02.

	 	Execution and Authentication
	 	 	15	 
	Section 2.03.

	 	Registrar, Paying Agent and Conversion Agent
	 	 	16	 
	Section 2.04.

	 	Paying Agent To Hold Money In Trust
	 	 	16	 
	Section 2.05.

	 	Conversion Agent To Hold Money In Trust
	 	 	17	 
	Section 2.06.

	 	Lists of Holders of Securities
	 	 	17	 
	Section 2.07.

	 	Transfer and Exchange
	 	 	18	 
	Section 2.08.

	 	Replacement Securities
	 	 	19	 
	Section 2.09.

	 	Outstanding Securities
	 	 	19	 
	Section 2.10.

	 	Treasury Securities
	 	 	20	 
	Section 2.11.

	 	Temporary Securities
	 	 	20	 
	Section 2.12.

	 	Cancellation
	 	 	20	 
	Section 2.13.

	 	Legend; Additional Transfer and Exchange Requirements
	 	 	21	 
	Section 2.14.

	 	CUSIP Numbers
	 	 	25	 
	Section 2.15.

	 	Calculations
	 	 	25	 
	Section 2.16.

	 	Payment of Interest; Interest Rights Preserved
	 	 	25	 
	Section 2.17.

	 	Computation of Interest
	 	 	26	 
	Section 2.18.

	 	Tax Treatment of the Securities
	 	 	26	 
	 
	 	 	 	 	 	 

	 

	 	ARTICLE 3	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	REDEMPTION AND REPURCHASE	 	 	 	 






i 




 









 









	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 3.01.

	 	Company’s Right to Redeem; Notice to Trustee
	 	 	27	 
	Section 3.02.

	 	Selection of Securities to be Redeemed
	 	 	27	 
	Section 3.03.

	 	Notice of Redemption
	 	 	28	 
	Section 3.04.

	 	Effect of Notice of Redemption
	 	 	29	 
	Section 3.05.

	 	Deposit of Redemption Price
	 	 	29	 
	Section 3.06.

	 	Securities Redeemed in Part
	 	 	29	 
	Section 3.07.

	 	Repurchase of Securities by the Company at Option of the Holder
	 	 	29	 
	Section 3.08.

	 	Repurchase of Securities at Option of the Holder upon a Fundamental
Change
	 	 	32	 
	Section 3.09.

	 	Effect of Repurchase Notice or Fundamental Change Purchase Notice
	 	 	35	 
	Section 3.10.

	 	Deposit of Repurchase Price or Fundamental Change Purchase Price
	 	 	36	 
	Section 3.11.

	 	Securities Purchased in Part
	 	 	36	 
	Section 3.12.

	 	Repayment to the Company
	 	 	36	 
	Section 3.13.

	 	Compliance With Securities Laws Upon Purchase of Securities
	 	 	37	 
	Section 3.14.

	 	Purchase of Securities In Open Market
	 	 	37	 
	 
	 	 	 	 	 	 

	 

	 	ARTICLE 4	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CONVERSION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.01.

	 	Conversion Privilege and Base Conversion Rate
	 	 	37	 
	Section 4.02.

	 	Conversion Procedure
	 	 	41	 
	Section 4.03.

	 	Fractional Shares
	 	 	43	 
	Section 4.04.

	 	Taxes on Conversion
	 	 	43	 
	Section 4.05.

	 	Company To Provide Common Stock
	 	 	44	 
	Section 4.06.

	 	Adjustment of Base Conversion Rate
	 	 	44	 
	Section 4.07.

	 	No Adjustment
	 	 	49	 
	Section 4.08.

	 	Notice of Adjustment
	 	 	50	 
	Section 4.09.

	 	Notice of Certain Transactions
	 	 	50	 
	Section 4.10.

	 	Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege
	 	 	51	 
	Section 4.11.

	 	Trustee’s Disclaimer
	 	 	52	 
	Section 4.12.

	 	Settlement Upon Conversion
	 	 	52	 
	 
	 	 	 	 	 	 

	 

	 	ARTICLE 5	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	COVENANTS	 	 	 	 






ii 




 









 








	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 5.01.

	 	Payment of Securities
	 	 	53	 
	Section 5.02.

	 	Reports by Company
	 	 	54	 
	Section 5.03.

	 	Compliance Certificates
	 	 	55	 
	Section 5.04.

	 	Further Instruments and Acts
	 	 	55	 
	Section 5.05.

	 	Maintenance of Corporate Existence
	 	 	55	 
	Section 5.06.

	 	Rule 144A Information Requirement
	 	 	55	 
	Section 5.07.

	 	Stay, Extension And Usury Laws
	 	 	55	 
	Section 5.08.

	 	Payment of Additional Interest
	 	 	56	 
	Section 5.09.

	 	Maintenance of Office or Agency
	 	 	56	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 6	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CONSOLIDATION; MERGER; SALE OF ASSETS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.01.

	 	Company May Consolidate, Etc., Only on Certain Terms
	 	 	57	 
	Section 6.02.

	 	Successor Substituted
	 	 	57	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 7	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	DEFAULT AND REMEDIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.01.

	 	Events of Default
	 	 	58	 
	Section 7.02.

	 	Acceleration
	 	 	59	 
	Section 7.03.

	 	Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	61	 
	Section 7.04.

	 	Trustee May File Proofs of Claim
	 	 	62	 
	Section 7.05.

	 	Trustee May Enforce Claims Without Possession of Securities
	 	 	63	 
	Section 7.06.

	 	Application of Money Collected
	 	 	63	 
	Section 7.07.

	 	Limitation on Suits
	 	 	63	 
	Section 7.08.

	 	Unconditional Right of Holders to Receive Payment and to Convert
	 	 	64	 
	Section 7.09.

	 	Restoration of Rights and Remedies
	 	 	64	 
	Section 7.10.

	 	Rights and Remedies Cumulative
	 	 	64	 
	Section 7.11.

	 	Delay or Omission Not Waiver
	 	 	64	 
	Section 7.12.

	 	Control by Holders
	 	 	65	 
	Section 7.13.

	 	Waiver of Past Defaults
	 	 	65	 
	Section 7.14.

	 	Undertaking for Costs
	 	 	65	 
	Section 7.15.

	 	Remedies Subject to Applicable Law
	 	 	66	 






iii 




 









 








	 	 	 	 	 	 	 
	 	 	 	 	Page

	 

	 	ARTICLE 8	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	TRUSTEE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01.

	 	Duties of Trustee
	 	 	66	 
	Section 8.02.

	 	Notice of Default
	 	 	67	 
	Section 8.03.

	 	Certain Rights of Trustee
	 	 	67	 
	Section 8.04.

	 	Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof
	 	 	69	 
	Section 8.05.

	 	Trustee and Agents May Hold Securities; Collections; etc
	 	 	69	 
	Section 8.06.

	 	Money Held in Trust
	 	 	69	 
	Section 8.07.

	 	Compensation and Indemnification of Trustee and Its Prior Claim
	 	 	70	 
	Section 8.08.

	 	Conflicting Interests
	 	 	70	 
	Section 8.09.

	 	Trustee Eligibility
	 	 	71	 
	Section 8.10.

	 	Resignation and Removal; Appointment of Successor Trustee
	 	 	71	 
	Section 8.11.

	 	Acceptance of Appointment by Successor
	 	 	72	 
	Section 8.12.

	 	Merger, Conversion, Consolidation or Succession to Business
	 	 	73	 
	Section 8.13.

	 	Preferential Collection of Claims Against Company
	 	 	73	 
	Section 8.14.

	 	Reports By Trustee
	 	 	73	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 9	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SATISFACTION AND DISCHARGE OF INDENTURE	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01.

	 	Satisfaction and Discharge of Indenture
	 	 	74	 
	Section 9.02.

	 	Application of Trust Money
	 	 	75	 
	Section 9.03.

	 	Reinstatement
	 	 	75	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 10	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	AMENDMENTS; SUPPLEMENTS AND WAIVERS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 10.01.

	 	Without Consent of Holders
	 	 	75	 
	Section 10.02.

	 	With Consent of Holders
	 	 	76	 
	Section 10.03.

	 	Execution of Supplemental Indentures and Agreements
	 	 	77	 
	Section 10.04.

	 	Effect of Supplemental Indentures
	 	 	78	 
	Section 10.05.

	 	Conformity with Trust Indenture Act
	 	 	78	 
	Section 10.06.

	 	Reference in Securities to Supplemental Indentures
	 	 	78	 
	Section 10.07.

	 	Notice of Supplemental Indentures
	 	 	78	 






iv 




 









 








	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE 11	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CONTINGENT INTEREST	 	 	 	 
	 
	 	 	 	 	 	 
	Section 11.01.

	 	Contingent Interest
	 	 	79	 
	Section 11.02.

	 	Payment of Contingent Interest
	 	 	80	 
	Section 11.03.

	 	Contingent Interest Notification
	 	 	80	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 12	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SUBORDINATION	 	 	 	 
	 
	 	 	 	 	 	 
	Section 12.01.

	 	Agreement to Subordinate
	 	 	80	 
	Section 12.02.

	 	Liquidation; Dissolution; Bankruptcy
	 	 	80	 
	Section 12.03.

	 	Default on Designated Senior Indebtedness
	 	 	81	 
	Section 12.04.

	 	Acceleration of Notes
	 	 	82	 
	Section 12.05.

	 	When Distribution Must Be Paid Over
	 	 	82	 
	Section 12.06.

	 	Notice by the Company
	 	 	82	 
	Section 12.07.

	 	Subrogation
	 	 	83	 
	Section 12.08.

	 	Relative Rights
	 	 	83	 
	Section 12.09.

	 	Subordination May Not Be Impaired by the Company
	 	 	84	 
	Section 12.10.

	 	Distribution or Notice to Representative
	 	 	84	 
	Section 12.11.

	 	Rights of Trustee and Paying Agent
	 	 	84	 
	Section 12.12.

	 	Anti-layering
	 	 	85	 
	Section 12.13.

	 	Reliance on Judicial Order or Certificate of Liquidating Agent
	 	 	85	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE 13	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 13.01.

	 	Conflict with Trust Indenture Act
	 	 	85	 
	Section 13.02.

	 	Notices
	 	 	85	 
	Section 13.03.

	 	Disclosure of Names and Addresses of Holders
	 	 	87	 
	Section 13.04.

	 	Compliance Certificates and Opinions
	 	 	87	 
	Section 13.05.

	 	Acts of Holders
	 	 	88	 
	Section 13.06.

	 	Benefits of Indenture
	 	 	89	 
	Section 13.07.

	 	Legal Holidays
	 	 	89	 
	Section 13.08.

	 	Governing Law; Waiver of Trial by Jury
	 	 	89	 
	Section 13.09.

	 	No Adverse Interpretation of Other Agreements
	 	 	90	 






v 




 









 








	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 13.10.

	 	No Personal Liability of Directors, Officers, Employees and
Stockholders
	 	 	90	 
	Section 13.11.

	 	Successors and Assigns
	 	 	90	 
	Section 13.12.

	 	Multiple Counterparts
	 	 	90	 
	Section 13.13.

	 	Separability Clause
	 	 	90	 
	Section 13.14.

	 	Schedules and Exhibits
	 	 	90	 
	Section 13.15.

	 	Effect of Headings and Table of Contents
	 	 	90	 
	 
	 	 	 	 	 	 
	EXHIBIT A Form of Security	 	 	A-1	 






	 	 	 
	 

	 	- Assignment Form
	 

	 	- Form of Conversion Notice
	 

	 	- Form of Notice of Redemption
	 

	 	- Form of Notice of Repurchase
	 

	 	- Form of [Repurchase][Fundamental Change Purchase] Notice
	 

	 	- Form of Certificate to be Delivered upon Exchange or Registration of
Transfer of Restricted Securities






vi 




 









 








CROSS-REFERENCE TABLE*




	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section(s)
	Section

	 	 310(a)(1)
	 	 8.09
	 

	 	 (a)(2)
	 	 8.09
	 

	 	 (a)(3)
	 	N.A. **
	 

	 	 (a)(4)
	 	N.A.
	 

	 	 (a)(5)
	 	 8.09
	 

	 	 (b)
	 	 8.08
	 

	 	 (c)
	 	N.A.
	Section

	 	 311(a)
	 	 8.13
	 

	 	 (b)
	 	 8.05
	 

	 	 (c)
	 	N.A.
	Section

	 	 312(a)
	 	 2.06
	 

	 	 (b)
	 	 13.03
	 

	 	 (c)
	 	 13.03
	Section

	 	 313(a)
	 	 8.14 (a)
	 

	 	 (b)(1)
	 	N.A.
	 

	 	 (b)(2)
	 	 8.14 (a)
	 

	 	 (c)
	 	 8.14 (a)
	 

	 	 (d)
	 	 8.14 (b)
	Section

	 	 314(a)
	 	 5.02
	 

	 	 (b)
	 	N.A.
	 

	 	 (c)(1)
	 	 13.04
	 

	 	 (c)(2)
	 	 13.04
	 

	 	 (c)(3)
	 	N.A.
	 

	 	 (d)
	 	N.A.
	 

	 	 (e)
	 	 13.04
	 

	 	 (f)
	 	N.A.
	Section

	 	 315(a)
	 	 8.01 (b)
	 

	 	 315(b)
	 	 8.02
	 

	 	 315(c)
	 	 8.01 (a)
	 

	 	 315(d)
	 	 8.01 (c)
	 

	 	 315(d)(2)
	 	 8.01 (c)
	 

	 	 315(d)(3)
	 	 8.01 (c)
	 

	 	 315(e)
	 	 7.14
	Section

	 	 316(a) (last sentence)
	 	 2.10
	 

	 	 316(a)(1)
	 	 7.12, 7.13
	 

	 	 316(a)(2)
	 	N.A.
	 

	 	 316(b)
	 	 7.08
	 

	 	 316(c)
	 	 13.05(e)
	Section

	 	 317(a)
	 	 7.03, 7.04(a)
	 

	 	 317(b)
	 	 2.04
	Section

	 	 318(a)
	 	 13.01
	 

	 	 318(c)
	 	 13.01







 




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

	 
	**	 	N.A. means Not Applicable.





vii 




 









 








     THIS INDENTURE, dated as of January 9, 2008, is between OSI Pharmaceuticals, Inc., a
corporation duly organized under the laws of the State of Delaware (the “Company”), and The Bank of
New York, a New York banking corporation duly incorporated under the laws of the State of New York,
as Trustee (the “Trustee”).



     In consideration of the purchase of the Securities (as defined herein) by the Holders thereof,
the parties hereto agree as follows for the benefit of one another and for the equal and ratable
benefit of the Holders of the Company’s 3% Convertible Senior Subordinated Notes Due 2038.



ARTICLE 1




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.01. Definitions.



     “Additional Interest” has the meaning specified in the Registration Rights Agreement. All
references herein to interest accrued or payable as of any date shall include any Additional
Interest accrued or payable as of such date as provided in the Registration Rights Agreement.



     “Affiliate” means, with respect to any specified Person, 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
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” means any Registrar, Paying Agent or Conversion Agent.



     “Applicable Procedures” means, with respect to any conversion, transfer or exchange of
beneficial ownership interests in a Global Security, the rules and procedures of the Depositary, to
the extent applicable to such conversion, transfer or exchange.



     “Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy” or any other
law relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors, whether in effect on the date hereof or hereafter.



     “Base Conversion Price” means a dollar amount (initially $73.82) derived by dividing $1,000
principal amount by the Base Conversion Rate, rounded to the nearest cent.



     “Base Conversion Rate” means 13.5463 shares of Common Stock for each $1,000 principal amount
of Securities, subject to adjustment pursuant to the provisions of this Indenture.



     “Board of Directors” means the board of directors of the Company or any duly authorized
committee of such board or any equivalent body in a limited partnership, limited liability
company or other entity serving substantially the same function as a board of directors of a
corporation.



 









 





     “Board Resolution” means, with respect to any Person, a duly adopted resolution (or other
similar action) of the Board of Directors of such Person.



     “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 required by law, regulation or executive
order to close.



     “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated) the
equity of such Person, but excluding any debt securities convertible into such equity.



     “Cash” or “cash” means such coin or currency of the United States as at any time of payment is
legal tender for the payment of public and private debts.



     “Certificated Security” means a Security that is in substantially the form attached as Exhibit
A but that does not include the information or the schedule called for by footnote 1 thereof.



     “Change of Control” means the occurrence of any of the following events:




     (1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person shall be deemed to have beneficial ownership of
all shares that such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of Voting Stock
representing 50% or more of the total voting power of all outstanding Voting Stock of the
Company; or




     (2) the Company consolidates with, or merges with or into, another Person or the
Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person other than any such transaction where
immediately after such transaction the Person or Persons that “beneficially owned” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) immediately prior to such
transaction, directly or indirectly, Voting Stock representing a majority of the total
voting power of all outstanding Voting Stock of the Company, “beneficially own or owns” (as
so determined), directly or indirectly, Voting Stock representing a majority of the total
voting power of the outstanding Voting Stock of the surviving or transferee person; or




     (3) during any consecutive two-year period, the Continuing Directors cease for any
reason to constitute a majority of the board of directors of the Company; or




     (4) the adoption of a plan of liquidation or dissolution of the Company.



     For the purposes of this definition “Continuing Directors” means, as of any date of determination,
any member of the board of directors of the Company who was (a) a member of
such board of directors on the date of this Indenture or (b) nominated for election or elected to
such board of directors with the approval of a majority of the Continuing Directors who were
members of such board of directors at the time of such nomination or election.



2









 




Notwithstanding the foregoing, it will not constitute a Change of Control if at least 90% of the
consideration for the Company’s Common Stock (excluding cash payments for fractional shares and
cash payments made in respect of dissenters’ appraisal rights) in the transaction or transactions
constituting the Change of Control consists of common stock and any associated rights listed on a
United States national securities exchange or quoted on a national automated dealer quotation
system, or which will be so traded or quoted when issued or exchanged in connection with the Change
of Control, and as a result of such transaction or transactions the Securities become convertible
solely into cash and/or such common stock.




     “Close of Business” means 5:00 p.m. New York City time.



     “Closing Sale Price” of the Company’s Common Stock or any other securities on any Trading Day
means the reported last sale price per share (or if no last sale price is reported, the average of
the bid and ask prices per share or, if more than one in either case, the average of the average
bid and the average ask prices per share) on such date reported by the NASDAQ Global Select Market,
or, if the Company’s Common Stock or such securities are not listed on the NASDAQ Global Select
Market, as reported by the principal national securities exchange on which the Company’s Common
Stock or such securities are listed, or if no such prices are available, the Closing Sale Price per
share shall be the fair value of a share of Common Stock or other security as reasonably determined
by the Board of Directors (which determination shall be conclusive and shall be evidenced by an
Officer’s Certificate delivered to the Trustee).



     “Common Stock” means the common stock of the Company, par value $0.01 per share, or any
successor common stock thereto.



     “Company” means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor Company.



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



     “Contingent Interest” has the meaning specified in Section 11.01. All references herein to
interest accrued or payable as of any date shall include any Contingent Interest accrued or payable
as of such date as provided in Section 11.



     “Conversion Reference Period” means:




     (1) for Securities that are converted during the one month period prior to the Final
Maturity Date of such Securities, the 20 consecutive Trading Days beginning on the
22nd Scheduled Trading Day prior to the Final Maturity Date, subject to any extension
due to a Market Disruption Event;



3









 






     (2) for Securities that are converted after the Company has specified a Redemption
Date, the 20 consecutive Trading Days beginning on the third Trading Day following the
Redemption Date; and




     (3) in all other instances, the 20 consecutive Trading Days beginning on the third
Trading Day following the Conversion Date.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office at the date hereof is
located at 101 Barclay Street, Fl. 8W, New York, New York 10286, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to
the Company, or the principal corporate trust office of any successor Trustee (or such other
address as such successor Trustee may designate from time to time by notice to the Company).



     “Daily Conversion Rate” means




     (1) with respect to any Trading Day occurring prior to January 15, 2013, (a) if the
Volume Weighted Average Price of Common Stock is less than or equal to the Base Conversion
Price, then the Daily Conversion Rate will mean the Base Conversion Rate, or (b) if the
Volume Weighted Average Price of Common Stock is greater than the Base Conversion Price,
then the Daily Conversion Rate will be determined in accordance with the following formula:



	 	 	 	 	 	 	 
	 

	BCR +      [
	 	 	(VWAP  —  BCP)
	 	X ISF      ]
	 

	 	 	 	 
	 

	 	 	VWAP	 







     where




     BCR = the Base Conversion Rate;




     VWAP = the Volume Weighted Average Price per share of Common Stock
for such Trading Day;




     BCP = the Base Conversion Price; and




     ISF= the Incremental Share Factor.




     (2) with respect to any Trading Day occurring on or after January 15, 2013, the Daily
Conversion Rate will mean the average of the 20 Daily Conversion Rates determined as set
forth above for the 20 consecutive Trading Days ending immediately prior to January 15,
2013, subject to adjustment pursuant to the provisions of this Indenture.



     Notwithstanding the foregoing, in no event will the Daily Conversion Rate exceed the Maximum
Conversion Rate.



     “Daily Share Amount” means, for each Trading Day of the applicable Conversion Reference Period
and each $1,000 principal amount of Securities surrendered for conversion, a



4









 







number of shares of
Common Stock (but in no event less than zero) determined by the following formula:



(VWAP X CR)

VWAP X 20





     where




     VWAP = the Volume Weighted Average Price per share of Common Stock
on such Trading Day; and




     CR = the applicable Daily Conversion Rate.



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



     “Designated Senior Indebtedness” means any Senior Indebtedness which, at the time of
determination, has an aggregate principal amount outstanding of at least $20.0 million and that has
been specifically designated in the instrument evidencing such Senior Indebtedness as “Designated
Senior Indebtedness” of the Company.



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



     “Final Maturity Date” means January 15, 2038.



     “Fixed Conversion Rate” means the Daily Conversion Rate on or after January 15, 2013, subject
to the same proportional adjustment as the Base Conversion Rate.



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



     “GAAP” means generally accepted accounting principles in the United States of America 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 and the Public Company Accounting Oversight Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.



     “Global Security” means a Security in global form that is in substantially the form attached
as Exhibit A and that includes the legend called for in footnote 1 thereof and the related schedule
and which is deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.



     “Holder” or “Holder of a Security” means the person in whose name a Security is registered on
the Registrar’s books.



5









 





     “Incremental Share Factor” means 7.4505 shares of Common Stock for each $1,000 principal
amount of Securities, subject to the same proportional adjustment as the Base Conversion Rate.



     “Indebtedness” means, with respect to any Person, without duplication: (a) all liabilities of
such Person for borrowed money (including overdrafts) or for the deferred purchase price of
property or services, excluding any trade payables and other accrued current liabilities incurred
in the ordinary course of business, but including, without limitation, all obligations, contingent
or otherwise, of such Person in connection with any letters of credit and acceptances issued under
letter of credit facilities, acceptance facilities or other similar facilities; (b) all obligations
of such Person evidenced by bonds, notes, debentures or other similar instruments; (c) indebtedness
of such Person created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of such
property), but excluding trade payables arising in the ordinary course of business; (d) all
capitalized lease obligations of such Person; (e) all obligations of such Person under or in
respect of interest rate agreements or currency agreements; (f) all indebtedness referred to in
(but not excluded from) the preceding clauses of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any lien or with respect to property (including,
without limitation, accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such indebtedness (the amount of such obligation
being deemed to be the lesser of the value of such property or asset or the amount of the
obligation so secured); (g) all guarantees by such Person of indebtedness referred to in this
definition of any other Person; (h) all Redeemable Capital Stock of such Person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends; and (i) the present value of the obligation of such Person as lessee for net rental
payments (excluding all amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water, utilities and similar charges to the extent included in such
rental payments) during the remaining term of the lease included in any sale and leaseback
transaction including any period for which such lease has been extended or may, at the option of
the lessor, be extended. Such present value shall be calculated using a discount rate equal to the
rate of interest implicit in such transaction, determined in accordance with GAAP.



     “Indenture” means this instrument as originally executed (including all exhibits and schedules
thereto) and 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 the
provisions of the TIA that are automatically deemed to be part of this Indenture by operation of
the TIA.



     “Initial Purchasers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities Inc.



     “Interest Payment Date” means January 15 and July 15 of each year, commencing July 15, 2008.



     “Issue Date” means the date of this Indenture.



6









 





     “Market Disruption Event” means the occurrence or existence for more than one half hour period
in the aggregate on any Scheduled Trading Day for the Common Stock of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the NASDAQ Global
Select Market or otherwise) in the Common Stock or in any options, contracts or futures contracts
relating to the Common Stock, and such suspension or limitation occurs or exists at any time before
1:00 p.m. (New York City time) on such day.



     “Maximum Conversion Rate” means 22.3513 shares of Common Stock for each $1,000 principal
amount of Securities, subject to the same proportional adjustment as the Base Conversion Rate as
set forth in subsections (a) through (c) of Section 4.06.



     “Officer” means the Chairman, any Vice Chairman, the President, the Chief Executive Officer,
any Vice President, the Chief Financial Officer, the Chief Operating Officer, the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary of the Company.



     “Officer’s Certificate” means a certificate signed by an Officer of the Company and delivered
to the Trustee; provided, however, that for purposes of Section 5.03, “Officer’s Certificate” means
a certificate signed by the principal executive officer, principal financial officer, principal
operating officer, principal accounting officer or treasurer of the Company.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company.



     “Permitted Junior Securities” shall mean equity securities or subordinated securities of the
Company or any successor obligor that, in the case of any such subordinated securities, are
subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding to
at least the same extent as the Securities are so subordinated.



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



     “Redeemable Capital Stock” means any class of the Company’s capital stock that, either by its
terms, by the terms of any securities into which it is convertible or exchangeable or by contract
or otherwise, is, or upon the happening of an event or passage of time would be, required to be
redeemed (whether by sinking fund or otherwise) prior to the date that is 91 days after the Final
Maturity Date or is redeemable at the option of the holder thereof at any time prior to such date,
or is convertible into or exchangeable for debt securities at any time prior to such date (unless
it is convertible or exchangeable solely at the Company’s option).



     “Redemption Date” means the date specified in a notice of redemption on which the Securities
may be redeemed in accordance with the terms of the Securities and this Indenture.



     “Registrar” means initially the Trustee.



7









 





     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of January
9, 2008, among the Company and the Initial Purchasers, as amended and supplemented from time to
time in accordance with its terms.



     “Regular Record Date” means, with respect to each Interest Payment Date, the January 1 or July
1, as the case may be, immediately preceding such Interest Payment Date.



     “Restricted Global Security” means a Global Security that is a Restricted Security.



     “Restricted Security” means a Security required to bear the restrictive legends called for in
footnotes 2 and 3 set forth in the form of Security attached as Exhibit A.



     “Rule 144” means Rule 144 under the Securities Act or any successor to such Rule.



     “Rule 144A” means Rule 144A under the Securities Act or any successor to such Rule.



     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day.



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



     “Securities” means up to $200,000,000 aggregate principal amount of 3% Convertible Senior
Subordinated Notes due 2038, or any $1,000 principal amount thereof (each a “Security”), as amended
or supplemented from time to time, that are issued under this Indenture.



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



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



     “Senior Indebtedness” means:




     (a) all Indebtedness of the Company, now or hereafter existing, under or in respect of
the documents and instruments executed in connection therewith, whether for principal,
premium, if any, interest (including interest accruing after the filing of, or which would
have accrued but for the filing of, a petition by or against the Company under bankruptcy
law, whether or not such interest is allowed as a claim after such filing in any proceeding
under such law) and other amounts due in connection therewith (including, without
limitation, any fees, premiums, expenses, reimbursement obligations with respect to letters
of credit and indemnities), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed; and




     (b) the principal of, premium, if any, and interest on all other Indebtedness of the
Company (other than the Securities), whether outstanding on the date of this Indenture or
thereafter created, incurred or assumed,



8









 







unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the Securities.




     Notwithstanding the foregoing, “Senior Indebtedness” shall not include:




     (i) Indebtedness evidenced by the Securities;




     (ii) Indebtedness of the Company that is expressly subordinated in right of payment to
Senior Indebtedness;




     (iii) Indebtedness or other obligations of the Company that by its terms ranks equal or
junior in right of payment to the Securities;




     (iv) Indebtedness of the Company that, by operation of law, is subordinate to any
general unsecured obligations of the Company;




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




     (vi) accounts payable or other liabilities owed or owing by the Company to trade
creditors (including guarantees thereof or instruments evidencing such liabilities);




     (vii) amounts owed by the Company for compensation to employees or for services
rendered to the Company;




     (viii) Indebtedness of the Company to any Subsidiary or any other Affiliate of the
Company or any of such Affiliate’s subsidiaries;




     (ix) Capital Stock of the Company;




     (x) Indebtedness evidenced by any guarantee of any Indebtedness ranking equal or junior
in right of payment to the Securities; and




     (xi) Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code, is without recourse to the Company.



     “Significant Subsidiary” means, with respect to any Person, any Subsidiary (or group of
Subsidiaries as to which a specified condition applies) that would be a “significant subsidiary”
under Rule 1-02(w) of Regulation S-X.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.16.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
Security, the date on which such payment of interest or principal shall become due and payable.



9









 





     “Subsidiary” means, with respect to any specified Person: (1) any corporation, association or
other business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); or (2) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).



     “Termination of Trading” will be deemed to have occurred if the Company’s Common Stock (or
other common stock into which the Securities are then convertible) is not listed on a United States
national securities exchange or approved for quotation and trading on a national automated dealer
quotation system or established automated over-the-counter trading market in the United States,
other than as a result of a transaction described in clause (2) of the definition of Change of
Control.



     “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except to the extent that the Trust
Indenture Act or any amendment thereto expressly provides for application of the Trust Indenture
Act as in effect on another date.



     “Trading Day” means any day on which (i) there is no Market Disruption Event and (ii) the
NASDAQ Global Select Market is open for trading, or, if the Common Stock is not listed on the
NASDAQ Global Select Market, any day on which the principal national securities exchange on which
the Common Stock is listed is open for trading, or, if the Common Stock is not listed on a national
securities exchange, any Business Day. A “Trading Day” only includes those days that have a
scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for
regular trading on the relevant exchange or trading system.



     “Trading Price” of the Securities on any date of determination means the average of the
secondary market bid quotations obtained by the Trustee for $5.0 million principal amount of
Securities at approximately 3:30 p.m., New York City time, on such determination date from three
nationally recognized securities dealers the Company selects in writing, which may include the
Initial Purchasers; provided that if three such bids cannot reasonably be obtained by the Trustee,
but two such bids are obtained, then the average of the two bids shall be used, and if only one
such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the Trustee
cannot reasonably obtain at least one bid for $5.0 million principal amount of Securities from a
nationally recognized securities dealer or, in the reasonable judgment of the Company, the bid
quotations are not indicative of the secondary market value of the Securities, then the Trading
Price per $1,000 principal amount of Securities will be deemed to be less than 97% of the product
of the Closing Sale Price of the Company’s Common Stock and the then applicable Daily Conversion
Rate.



     “Trustee” means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and thereafter means the
successor.



10









 





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



     “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.”



     “Volume Weighted Average Price” or “VWAP” of the Common Stock on any Trading Day means such
price per share as displayed on Bloomberg (or any successor service) page “OSIP<equity>VAP”
(or any equivalent successor page) in respect of the period from 9:30 a.m. to 4:00 p.m., New York
City time, on such Trading Day; or, if such price is not available, the Volume Weighted Average
Price means the market value per share of Common Stock on such day as determined by a nationally
recognized independent investment banking firm retained for this purpose by the Company.



     “Voting Stock” of any Person means Capital Stock of the class or classes pursuant to which the
holders of such Capital Stock have the general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such Person (irrespective of
whether or not at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).



     Section 1.02. Other Definitions.



	 	 	 
	Term	 	Defined in Section
	“Act”

	 	 13.05(a)
	“Additional Shares”

	 	 4.01(j)
	“Agent Members”

	 	 2.01(b)
	“Bid Calculation Agent”

	 	 11.01
	“Business Combination”

	 	 4.10(a)
	“Cash Percentage”

	 	 4.12(b)
	“Contingent Debt Regulations”

	 	 2.18
	“Conversion Agent”

	 	 2.03(a)
	“Conversion Date”

	 	 4.02(a)
	“Conversion Obligation”

	 	 4.12(a)
	“Conversion Shares”

	 	 4.12(a)
	“DTC”

	 	 2.01(a)
	“Defaulted Interest”

	 	 2.16
	“Depositary”

	 	 2.01(a)
	“Distribution Notice”

	 	 4.01(d)
	“Effective Date”

	 	 4.01(j)
	“Event of Default”

	 	 7.01(a)
	“ex-dividend date”

	 	 4.01(d)
	“Expiration Time”

	 	 4.06(e)
	“Fundamental Change Conversion Notice”

	 	 4.01(e)






11









 






	 	 	 
	Term	 	Defined in Section
	“Fundamental Change Purchase Date”

	 	 3.08(a)
	“Fundamental Change Purchase Notice”

	 	 3.08(c)
	“Fundamental Change Purchase Price”

	 	 3.08(a)
	“in connection with”

	 	 4.01(j)
	“Interest Period”

	 	 11.01
	“Issuer Fundamental Change Notice”

	 	 3.08(b)
	“Legend”

	 	 2.13(a)
	“Make Whole Premium”

	 	 4.01(j)
	“Market Price”

	 	 11.01
	“Non-Payment Default”

	 	 12.03(b)
	“Notice of Default”

	 	 7.01(b)
	“Outstanding”

	 	 2.09(a)
	“Paying Agent”

	 	 2.03(a)
	“Payment Blockage Period”

	 	 12.03(b)
	“Payment Default”

	 	 12.03(a)
	“Primary Registrar”

	 	 2.03(a)
	“QIB”

	 	 2.01(a)
	“Redemption Price”

	 	 3.01
	“Registrar”

	 	 2.03(a)
	“Repurchase Dates”

	 	 3.08(a)
	“Repurchase Notice”

	 	 3.07(b)
	“Repurchase Price”

	 	 3.07(a)
	“Settlement Date”

	 	 4.02(a)
	“Special Interest”

	 	 7.02(c)
	“Special Payment Date”

	 	 2.16(a)
	“Specified Repurchase Date”

	 	 3.07(a)
	“Spin-Off”

	 	 4.06(c)
	“Stock Price

	 	 4.01(j)






     Section 1.03. Trust Indenture Act Provisions.



     Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by
reference in and made a part of this Indenture. The following TIA term used in this Indenture has
the following meaning:



     “obligor” on the indenture securities means the Company or any other obligor on the
Securities.



     All other terms used in this Indenture that are defined in the TIA, defined by TIA reference
to another statute or defined by any SEC rule and not otherwise defined herein have the meanings
assigned to them therein.




12











 





     Section 1.04. Rules Of Construction.



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




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) words in the singular include the plural, and words in the plural include the
singular;




     (4) the term “merger” includes a statutory share exchange and the term “merged” has a
correlative meaning;




     (5) the masculine gender includes the feminine and the neuter;




     (6) the terms “include”, “including”, and similar terms should be construed as if
followed by the phrase “without limitation”;




     (7) references to agreements and other instruments include subsequent amendments
thereto; and




     (8) all “Article”, “Exhibit” and “Section” references are to Articles, Exhibits and
Sections, respectively, of or to this Indenture unless otherwise specified herein, and the
terms “hereunder,” “herein,” “hereof” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.



ARTICLE 2




THE SECURITIES




     Section 2.01. Form and Dating.



     The Securities and the Trustee’s certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may include such letters, numbers or other marks of identification and
such notations, legends, endorsements or changes as the Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Trustee, the Depositary, or as may be
required to comply with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any national securities exchange or automated quotation system on
which the Securities may be listed or quoted, or to conform to usage, or to indicate any special
limitations or restrictions to which any particular Securities are subject. Each Security shall be
dated the date of its authentication.



13









 





     (a) Restricted Global Securities. All of the Securities are initially being offered
and sold to qualified institutional buyers as defined in Rule 144A (collectively, “QIBs” or
individually, each a “QIB”) in reliance on Rule 144A under the Securities Act and shall be issued
initially in the form of one or more Restricted Global Securities, which shall be deposited on
behalf of the purchasers of the securities represented thereby with the Trustee, at its Corporate
Trust Office, as custodian for the depositary, The Depository Trust Company (“DTC”, and such
depositary, or any successor thereto, being hereinafter referred to as the “Depositary”), and
registered in the name of its nominee, Cede & Co. (or any successor thereto), for the accounts of
participants in the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global Securities may from
time to time be increased or decreased by adjustments made on the records of the Securities
Custodian as hereinafter provided, subject in each case to compliance with the Applicable
Procedures.



     (b) Global Securities In General. The Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate principal amount of outstanding Securities from time to time endorsed thereon and
that the aggregate principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, purchases or conversions of
such Securities.



     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 under
the Global Security, and the Depositary (including, for this purpose, its nominee) may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such Global Security for all purposes whatsoever.



     Notwithstanding the foregoing, nothing herein shall (1) 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 (2) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of the rights of a
Holder of any Security.



     (c) Book Entry Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (1) shall be registered in the name of the Depositary or its nominee, (2) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (3)
shall bear legends substantially to the following effect:



     “UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER,



14









 







PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.”



     Section 2.02. Execution and Authentication.



     (a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited to $200,000,000 aggregate principal amount, except as provided in
Sections 2.07 and 2.08.



     (b) The Securities shall be executed on behalf of the Company by one of its Officers. The
signatures of any of the Officers on the Securities may be manual or facsimile.



     (c) 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.



     (d) No Security endorsed thereon 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 duly executed by the Trustee by manual
signature of an authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.



     (e) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $200,000,000 upon receipt of a Company Order. The
Company Order shall specify the amount of Securities to be authenticated, shall provide that all
such Securities will be represented by a Global Security and shall state the date on which each
original issue of Securities is to be authenticated.



     (f) The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such agent.



15









 




An authenticating agent shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.




     (g) The Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 principal amount and any integral multiple thereof.



     Section 2.03. Registrar, Paying Agent and Conversion Agent.



     (a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a “Registrar”), one or more offices
or agencies where Securities may be presented or surrendered for payment (each, a “Paying Agent”),
one or more offices or agencies where Securities may be presented for conversion (each, a
“Conversion Agent”) and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The Company will at all
times maintain a Paying Agent, Conversion Agent, Registrar and an office or agency where notices
and demands to or upon the Company in respect of the Securities and this Indenture may be served in
the Borough of Manhattan, The City of New York. One of the Registrars (the “Primary Registrar”)
shall keep a register of the Securities and of their transfer and exchange. At the option of the
Company, any payment of cash may be made by check mailed to the Holders at their addresses set
forth in the register of Holders.



     (b) The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, provided that the Agent may be an Affiliate of the Trustee. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The Company shall notify the
Trustee of the name and address, and any change in the name or address, of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent, or
agent for service of notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Article 9).



     (c) The Company hereby initially designates The Bank of New York as Paying Agent, Registrar,
Securities Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee
as the office or agency of the Company for each of the aforesaid purposes and as the office or
agency where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served.



     Section 2.04. Paying Agent To Hold Money In Trust.



     Unless otherwise specified herein, prior to 10:00 a.m., New York City time, on each due date
of the payment of principal of, or interest, including Contingent Interest, if any, on any
Securities, the Company shall deposit a sum sufficient to pay such principal or interest, including
Contingent Interest, if any, so becoming due. A Paying Agent shall hold in trust for the benefit
of Holders of Securities or the Trustee all money held by the Paying Agent for the payment of
principal of, or interest, including Contingent Interest, if any, on, the Securities, and shall
notify the Trustee of any failure by the Company (or any other obligor on the Securities) to make
any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall,



16









 







before 10:00 a.m., New York City time, on each due date of the principal of, or interest
including Contingent Interest, if any, on, any Securities, segregate the money and hold it as a
separate trust fund for the benefit of Holders. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee, and the Trustee may at any time during the continuance
of any Default, upon written request to a Paying Agent, require such Paying Agent to pay forthwith
to the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent
(other than the Company) shall have no further liability for the money so paid to the Trustee.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest, including Contingent Interest, if any, on
any Security and remaining unclaimed for two years after such principal or interest, including
Contingent Interest, if any, has become due and payable shall promptly be paid to the Company 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 will promptly be repaid to the Company.



     Section 2.05. Conversion Agent To Hold Money In Trust.



     The Company shall require each Conversion Agent (that is not the Trustee) to agree in writing
that the Conversion Agent will hold in trust for the benefit of Holders or the Trustee all cash and
shares of Common Stock delivered by the Company to the Conversion Agent for the delivery of amounts
due upon conversion, and will notify the Trustee of any default by the Company in making any such
delivery.



     While any such default continues, the Trustee may require a Conversion Agent to deliver all
cash and shares of Common Stock delivered by the Company to it to the Trustee. Upon payment over
to the Trustee, the Conversion Agent (if other than the Company or a Subsidiary) shall have no
further liability in respect of such amounts. If the Company or a Subsidiary acts as Conversion
Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all cash
and shares of Common Stock held by it as Conversion Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Conversion Agent for the
Securities.



     Section 2.06. Lists of Holders of Securities.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Securities. The Company shall
furnish or cause the Registrar to furnish to the Trustee (a) semiannually, not more than 10 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 (b) at such other



17









 







times as the Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list of similar form and content to that in subsection (a) hereof as of a date
not more than 15 days prior to the time such list is furnished; provided, however, that if and so
long as the Trustee shall be the Primary Registrar, no such list need be furnished.



     Section 2.07. Transfer and Exchange.



     (a) Subject to compliance with any applicable additional requirements contained in Section
2.13, when a Security is presented to a Registrar with a request to register a transfer thereof or
to exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each substantially in the form included
in Exhibit A, and completed in a manner satisfactory to the Registrar and duly executed by the
Holder thereof or its attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or exchange at an office or
agency maintained pursuant to Section 2.03(a), the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrar’s request. Any
exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be
imposed in relation thereto; provided that this sentence shall not apply to any exchange pursuant
to Section 2.11, 2.13(a), 4.02(d) or 10.06.



     (b) Neither the Company, any Registrar nor the Trustee shall be required to register the
transfer of or exchange any Securities or portions thereof in respect of which a Fundamental Change
Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the case of
the purchase of a Security in part, the portion thereof not to be purchased).



     (c) All Securities issued upon any transfer or exchange of Securities shall be 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.



     (d) Any Registrar appointed pursuant to Section 2.03 shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.



     (e) Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the registration of transfer, exchange or assignment of such
Holder’s Security in violation of any provision of this Indenture and/or applicable United States
federal or state securities law.



     (f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among Agent Members or other beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are expressly



18









 







required by, and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the express requirements
hereof.



     Section 2.08. Replacement Securities.



     (a) If (1) any mutilated Security is surrendered to the Trustee, or (2) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company and the Trustee, such security or indemnity, in each case, as
may be required by them to save each of them harmless from any loss, expense, claim or liability,
then, in the absence of notice to the Company or the Trustee that such Security has been acquired
by a protected purchaser, the Company shall execute and upon a Company Request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a replacement Security of like tenor and principal amount,
bearing a number not contemporaneously outstanding.



     (b) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased by the Company pursuant to Article 3, or converted
pursuant to Article 4, the Company in its discretion may, instead of issuing a new Security, pay,
purchase or convert such Security, as the case may be.



     (c) Upon the issuance of any new Securities under this Section 2.08, 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 counsel and the
Trustee) in connection therewith.



     (d) Every new Security issued pursuant to this Section 2.08 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.



     (e) The provisions of this Section 2.08 are (to the extent lawful) 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 2.09. Outstanding Securities.



     (a) Securities outstanding (“Outstanding”) at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those purchased pursuant to Article 3, those converted
pursuant to Article 4, those delivered to the Trustee for cancellation or surrendered for transfer
or exchange and those described in this Section 2.09 as not Outstanding.



     (b) If a Security is replaced pursuant to Section 2.08, such replaced Security ceases to be
Outstanding unless the Company receives proof satisfactory to it that the replaced Security is held
by a protected purchaser.



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     (c) If a Paying Agent holds in respect of the Outstanding Securities on a Redemption Date,
Specified Repurchase Date, Fundamental Change Purchase Date or the Final Maturity Date, as the case
may be, money sufficient to pay the principal of and accrued interest, including Contingent
Interest, if any, on Securities (or portions thereof) payable on that date, then on and after such
Redemption Date, Specified Repurchase Date, Fundamental Change Purchase Date, Final Maturity Date,
such Securities (or portions thereof, as the case may be) shall cease to be Outstanding, interest,
including Contingent Interest, if any, on such Securities shall cease to accrue and all other
rights of the Holder will terminate unless otherwise specified in this Indenture.



     (d) Subject to the restrictions contained in Section 2.10, a Security does not cease to be
Outstanding because the Company or an Affiliate of the Company holds the Security.



     Section 2.10. Treasury Securities.



     In determining whether the Holders of the required principal amount of Securities have
concurred in any request, demand, authorization, notice, direction, waiver or consent, Securities
owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or
of such other obligor shall be disregarded, except that, for purposes of determining whether the
Trustee shall be protected in relying on any such request, demand, authorization, notice,
direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually knows
are so owned shall be so disregarded.



     Section 2.11. Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary Securities representing an
equal principal amount of Securities. The temporary Securities will be exchanged for definitive
Securities in accordance with Sections 2.07 and 2.13 hereof. Until so exchanged, temporary
Securities shall have the same rights under this Indenture as the definitive Securities.



     Section 2.12. Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar, the Paying Agent and the Conversion Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange, purchase, payment or conversion. The Trustee and no
one else shall cancel, in accordance with its standard procedures, all Securities surrendered for
transfer, exchange, purchase, payment, conversion or cancellation and shall dispose of the
cancelled Securities in accordance with its customary procedures or deliver the canceled Securities
to the Company upon request. All Securities which are purchased or otherwise acquired by the
Company or any of its Subsidiaries prior to the Final Maturity Date pursuant to Article 3 shall be
delivered to the Trustee for cancellation, and the Company may not



20









 







hold or resell such Securities or issue any new Securities to replace any such Securities or
any Securities that any Holder has converted pursuant to Article 4. The Trustee shall maintain a
record of all canceled Securities. The Trustee shall provide the Company a list of all Securities
that have been canceled from time to time as requested by the Company in writing.



     Section 2.13. Legend; Additional Transfer and Exchange Requirements.



     (a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the forms of Securities attached
as Exhibit A (collectively, the “Legend”), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company and the Registrar such satisfactory
evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar,
as may be reasonably required by the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are
not “restricted” within the meaning of Rule 144 under the Securities Act; provided that no such
evidence need be supplied in connection with the sale of such Security pursuant to a registration
statement that is effective under the Securities Act at the time of such sale. Upon (1) provision
of such satisfactory evidence if requested or (2) notification by the Company to the Trustee and
Registrar of the sale of such Security pursuant to a registration statement that is effective under
the Securities Act at the time of such sale, the Trustee, at the written direction of the Company,
shall authenticate and deliver a Security that does not bear the Legend. If the Legend is removed
from the face of a Security and the Security is subsequently held by an Affiliate of the Company,
the Legend shall be reinstated.



     (b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such Person. Notwithstanding any other provisions
of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be
made only in accordance with this Section 2.13.



     (c) Subject to Section 2.13(b) and in compliance with Section 2.13(d), every Security shall be
subject to the restrictions on transfer provided in the Legend. Whenever any Restricted Security
other than a Restricted Global Security is presented or surrendered for registration of transfer or
in exchange for a Security registered in a name other than that of the Holder, such Security must
be accompanied by a certificate in substantially the form set forth in Exhibit A, dated the date of
such surrender and signed by the Holder of such Security, as to compliance with such restrictions
on transfer. The Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.



     (d) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been sold pursuant to an effective registration



21









 







statement under the Securities Act or transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision). Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of such Security for
exchange to the Registrar in accordance with the provisions of this Section 2.13 (accompanied, in
the event that such restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by, if requested by the Company or the Registrar, an
Opinion of Counsel reasonably acceptable to the Company and the Registrar and addressed to the
Company and the Registrar, to the effect that the transfer of such Security has been made in
compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company
shall inform the Trustee of the effective date of any registration statement registering the offer
and sale of 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
Opinion of Counsel.



          As used in Sections 2.13(a), (b), (c) and (d), the term “transfer” encompasses any sale,
pledge, transfer, hypothecation or other disposition of any Security.




     (e) The provisions below shall apply only to Global Securities or any Securities issued in
exchange for a Global Security:




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




     (2) Notwithstanding any other provisions of this Indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered, and no
transfer of a Global Security in whole or in part shall be registered in the name of any
Person other than the Depositary or one or more nominees thereof; provided that a Global
Security may be exchanged for Securities registered in the names of any person designated by
the Depositary in the event that (A) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or such Depositary
has ceased to be a “clearing agency” registered under the Exchange Act, and in either case a
successor Depositary is not appointed by the Company within 90 days after receiving such
notice or becoming aware that the Depositary has ceased to be a “clearing agency” or (B) an
Event of Default has occurred and is continuing with respect to the Securities. Any Global
Security exchanged pursuant to the preceding sentence shall be so exchanged as directed by
the Depositary. Any Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security; provided, however, that any such Security so issued that
is registered in the name of a Person other than the Depositary or a nominee thereof shall
not be a Global Security.




     (3) Securities issued in exchange for a Global Security or any portion thereof that are
not issued as a Global Security shall be issued in definitive, fully registered form,



22









 







without interest coupons, shall have a principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee or the Registrar. With regard to any Global
Security to be exchanged in part, either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made
on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.




     (4) Subject to clause (6) of this Section 2.13(e), the registered Holder 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.




     (5) In the event of the occurrence of any of the events specified in clause (2) of this
Section 2.13(e), the Company will promptly make available to the Trustee a reasonable supply
of Certificated Securities in definitive, fully registered form, without interest coupons.




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




     (7) At such time as all interests in a Global Security have been converted, cancelled
or exchanged for Securities in certificated form, such Global Security shall, upon receipt
thereof, be cancelled by the Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Securities Custodian, subject to Section 2.12 of
this Indenture. At any time prior to such cancellation, if any interest in a Global
Security is converted, canceled or exchanged for Securities in certificated form, the
principal amount of such Global Security shall, in accordance with the standing procedures
and instructions existing between the Depositary and the Securities Custodian, be
appropriately reduced, and an endorsement shall be made on such Global Security, by the
Trustee or the Securities Custodian, at the direction of the Trustee, to reflect such
reduction.



23









 





     (f) Until the expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision thereto), any stock certificate representing
Common Stock issued upon conversion of any Security shall bear a legend in substantially the
following form, unless such Common Stock has been sold pursuant to an effective registration
statement under the Securities Act or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto), or such Common Stock has been issued upon conversion of
Securities that have been transferred pursuant to a registration statement that has been declared
effective under the Securities Act or pursuant to Rule 144 under the Securities Act (or any
successor provision thereto), or unless otherwise agreed by the Company in writing with written
notice thereof to the transfer agent:




THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION UNDER THE SECURITIES ACT.




BY ITS ACQUISITION HEREOF, THE HOLDER AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THE COMMON
STOCK EVIDENCED HEREBY PRIOR TO THE DATE ON WHICH THE HOLDING PERIOD APPLICABLE TO SALES OF
THE COMMON STOCK EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) EXPIRES (THE “RESALE RESTRICTION TERMINATION DATE”) ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (C) PURSUANT TO ANY AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRANSFER AGENT’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH
OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS CERTIFICATE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.



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



24









 





     Section 2.14. CUSIP Numbers.



     The Company in issuing the Securities may use one or more “CUSIP” numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP” numbers in a Fundamental Change Purchase Notice
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
Fundamental Change Purchase Notice and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such purchase shall not be affected by any defect in or
omission of such numbers. The Company will notify the Trustee in writing of any change in the
“CUSIP” numbers.



     Section 2.15. Calculations.



     Except as otherwise specifically stated herein or in the Securities, all calculations to be
made in respect of the Securities shall be the obligation of the Company. All calculations made by
the Company or its agent as contemplated pursuant to the terms hereof and of the Securities shall
be made in good faith and be final and binding on the Holders absent manifest error. The Company
shall provide a schedule of calculations to the Trustee upon the Trustee’s request, and the Trustee
shall be entitled to conclusively rely upon the accuracy of the calculations by the Company without
independent verification. The Trustee shall forward calculations made by the Company to any Holder
of Securities upon request.



     Section 2.16. Payment of Interest; Interest Rights Preserved.



     Interest, including Contingent Interest, if any, on any Security which is payable, and is
punctually paid or duly provided for, on the Stated Maturity of such interest or Contingent
Interest, if any, shall be paid to the Person in whose name the Security is registered at the Close
of Business on the Regular Record Date for such interest payment.



     Any interest, including Contingent Interest, if any, on any Security which is payable, but is
not punctually paid or duly provided for, on the Stated Maturity of such interest or Contingent
Interest, if any, and interest on such defaulted interest at the then applicable interest rate
borne by the Securities, to the extent lawful (such defaulted interest and interest thereon herein
collectively called “Defaulted Interest”), shall forthwith cease to be payable to the Holder on the
Regular Record Date; and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Subsection (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities are registered at the Close of Business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 20 days after such notice) of the proposed payment (the
“Special Payment Date”), and on the date of payment the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the
Special Payment Date, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this subsection provided.



25









 




Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the
Special Payment Date and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company in writing of such Special
Record Date. Unless the Company issues a press release to the same effect, in the name and at the
expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder at its address as it appears in the Security Register, not less than 10 days prior to such
Special Record Date or notify in such other manner as the Trustee determines, including in
accordance with any Applicable Procedures. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Payment Date therefor having been so mailed or
otherwise conveyed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities are registered on such Special Record Date and shall no longer be payable pursuant to
the following paragraph (b).




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



     Subject to the foregoing provisions of this Section 2.16, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest, including Contingent Interest, if any, accrued and unpaid, and
to accrue, which were carried by such other Security.



     Section 2.17. Computation of Interest.



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



     Section 2.18. Tax Treatment of the Securities.



     The Company agrees, and by acceptance of a beneficial ownership interest in the Securities
each Holder of Securities will be deemed to have agreed (in the absence of an administrative
pronouncement or judicial ruling to the contrary), for United States federal income tax purposes,
(1) to treat the Securities as indebtedness of the Company subject to United States Treasury
regulations section 1.1275-4 (the “Contingent Debt Regulations”) and, for purposes of the
Contingent Debt Regulations, to treat cash and the fair market value of any Common Stock
beneficially received by a Holder upon any conversion of the Securities as a contingent payment,
(2) to be bound by the Company’s application of the Contingent Debt Regulations, including the
Company’s determination of the “comparable yield” and “projected payment schedule,” within the
meaning of the Contingent Debt Regulations, with respect to the Securities and (3) to use such
“comparable yield” and “projected payment schedule” in determining interest accruals with respect
to such Holder’s Securities and in determining adjustments thereto. A Holder of Securities may
obtain the issue price, issue date, yield to



26









 







maturity, comparable yield and the projected payment schedule by submitting a written request
for such information to: OSI Pharmaceuticals, Inc., 41 Pinelawn Road, Melville, NY 11747,
Attention: Chief Financial Officer.



ARTICLE 3




REDEMPTION AND REPURCHASE




     Section 3.01. Company’s Right to Redeem; Notice to Trustee.



     Prior to January 15, 2013, the Securities shall not be redeemable at the Company’s option. On
or after January 15, 2013, the Company, at its option, may redeem the Securities for cash at any
time, in whole or in part, at a redemption price (the “Redemption Price”) equal to 100% of the
principal amount of the Securities being redeemed, plus any accrued and unpaid interest, if any,
including Contingent Interest, if any, to, but excluding, the Redemption Date; provided that if the
Redemption Date falls after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, the Redemption Price shall be 100% of the principal amount of the Securities redeemed
but shall not include accrued and unpaid interest, if any, including Contingent Interest, if any.
Instead, the Company shall pay such accrued and unpaid interest, if any, including Contingent
Interest, if any, to the Holder of record at the Close of Business on the corresponding Regular
Record Date. If the Company elects to redeem Securities pursuant to this Section 3.01, it shall
notify the Trustee in writing of such election together with the Redemption Date, the Base
Conversion Rate, the principal amount of Securities to be redeemed and the Redemption Price.



     The Company shall give the notice to the Trustee of the Company’s election to redeem
Securities pursuant to this Section 3.01, at least 30 days but not more than 60 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee).



     Section 3.02. Selection of Securities to be Redeemed.



     If the Company decides to redeem fewer than all of the Securities, unless the procedures of
the Depositary provide otherwise, the Trustee shall select the Securities to be redeemed by lot, on
a pro rata basis or by another method the Trustee considers fair and appropriate.



     Securities and portions of Securities that the Trustee selects shall be in principal amounts
of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for redemption. The Trustee
shall notify the Company promptly (but in any case within seven days of the Trustee’s receipt of
the notice from the Company referred to in Section 3.01 unless a shorter notice is acceptable to
the Company) of the Securities or portions of the Securities selected to be redeemed and, in the
case of any Securities selected for partial redemption, the method it has chosen for the selection
of the portions of the Securities selected to be redeemed.



     Following a notice of redemption, Securities and portions of Securities are convertible,
pursuant to Section 4.01(a)(3), by the Holder until the Close of Business on the Business Day



27









 







prior to the Redemption Date. If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities that have been converted during a selection of
Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such
selection.



     Section 3.03. Notice of Redemption.



     At least 30 days but no more than 60 days before a Redemption Date, the Company shall mail a
notice of redemption (substantially in the form set forth in Exhibit A) by first-class mail,
postage prepaid, to each Holder of Securities to be redeemed.



     The notice shall identify the Securities to be redeemed and shall state (along with any other
information the Company wishes to include):



     (a) the Redemption Date;



     (b) the Redemption Price;



     (c) the Base Conversion Rate;



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



     (e) that Securities may be converted at any time before the Close of Business on the Business
Day prior to the Redemption Date;



     (f) the percentage of the Daily Share Amount that will be settled in cash, if any, with
respect to any Security that may be converted at any time before the Close of Business on the
Business Day prior to the Redemption Date;



     (g) that Securities called for redemption and not converted shall be redeemed on the
Redemption Date;



     (h) that Holders who want to convert their Securities must satisfy the requirements set forth
in the Securities;



     (i) that Securities called for redemption must be surrendered to the Paying Agent (by
effecting book entry transfer of the Securities or delivering Certificated Securities, together
with necessary endorsements, as the case may be) to collect the Redemption Price;



     (j) if fewer than all of the outstanding Securities are to be redeemed, the certificate
numbers, if any, and principal amounts of the particular Securities to be redeemed;



     (k) that, unless the Company defaults in making payments of such Redemption Price, interest,
including Contingent Interest, if any, on the Securities called for redemption shall cease to
accrue from and after the Redemption Date; and



28









 





     (l) the CUSIP or other similar number(s), as the case may be, of the Securities being
redeemed.



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense, provided that the Company makes such request at least seven
Business Days (or such shorter period as may be satisfactory to the Trustee) prior to the date by
which such notice of redemption must be given to Holders in accordance with this Section 3.03.



     Section 3.04. Effect of Notice of Redemption.



     Once notice of redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for Securities that are
converted in accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the notice and from and after the
Redemption Date (unless the Company shall default in the payment of the Redemption Price) such
Securities shall cease to bear interest, including Contingent Interest, if any, and the rights of
the Holders therein shall terminate (other than the right to receive the Redemption Price).



     Section 3.05. Deposit of Redemption Price.



     Prior to 10:00 a.m. (New York City time), on the Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the
Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of
all Securities to be redeemed on that date other than Securities or portions of Securities called
for redemption which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. Upon written request of the Company, the Paying Agent shall
as promptly as practicable return to the Company any money not required for the purpose of paying
the Redemption Price because of conversion of Securities pursuant to Article 4. If such money is
then held by the Company or a Subsidiary or an Affiliate of either in trust and is not required for
such purpose it shall be discharged from such trust.



     Section 3.06. Securities Redeemed in Part.



     Upon surrender of a Security that is redeemed in part, the Company shall execute and the
Trustee shall, without charge, authenticate and deliver to the Holder a new Security in an
authorized denomination equal in principal amount to the unredeemed portion of the Security
surrendered.



     Section 3.07. Repurchase of Securities by the Company at Option of the Holder.



     (a) On each of January 15, 2013, January 15, 2018, January 15, 2023, January 15, 2028 and
January 15, 2033 (each, a “Specified Repurchase Date”), each Holder shall have the option to
require the Company to repurchase Securities for which that Holder has properly delivered and not
withdrawn a written Repurchase Notice (as described below) at a repurchase price in cash equal to
100% of the principal amount of those Securities, plus accrued and unpaid interest, if any,
including Contingent Interest, if any, on those Securities, to, but excluding, such



29









 







Specified Repurchase Date (the “Repurchase Price”); provided that if the Specified Repurchase
Date is on a date that is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, the Repurchase Price shall be 100% of the principal amount of the Securities
repurchased but shall not include accrued and unpaid interest, if any, including Contingent
Interest, if any. Instead, the Company shall pay such accrued and unpaid interest, if any,
including Contingent Interest, if any, on the Interest Payment Date, to the Holder of record at the
Close of Business on the corresponding Regular Record Date. Not later than 20 Business Days prior
to any Specified Repurchase Date, the Company shall mail a Company Notice (substantially in the
form set forth in Exhibit A) by first class mail to the Trustee and to each Holder (and to
beneficial owners if required by applicable law). The Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:




     (i) the Repurchase Price and the Conversion Rate;




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




     (iii) that Securities as to which a Repurchase Notice has been given may be converted
only if they are otherwise convertible in accordance with Article 4 hereof and the terms of
the Securities if the applicable Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;




     (iv) that Securities must be surrendered to the Paying Agent (by effecting book entry
transfer of the Securities or delivering Certificated Securities, together with necessary
endorsements, as the case may be) to collect payment;




     (v) that the Repurchase Price for any security as to which a Repurchase Notice has been
given and not withdrawn shall be paid promptly following the later of the Specified
Repurchase Date and the time of surrender of such Security as described in clause
(iv) above;




     (vi) the other procedures the Holder must follow to exercise its right to require the
Company to repurchase such Holder’s Securities under this Section 3.07 and a brief
description of that right;




     (vii) briefly, the conversion rights, if any, that exist at the date of the Company
Notice or as a result of the Company Notice with respect to the Securities;




     (viii) that, unless the Company defaults in making payment on Securities for which a
Repurchase Notice has been submitted, interest, if any, and Contingent Interest, if any, on
such Securities shall cease to accrue from and after the Specified Repurchase Date;




     (ix) the CUSIP or other similar number(s), as the case may be, of the Securities;




     (x) that any Security not properly tendered or otherwise not accepted for repurchase
shall remain outstanding and continue to accrue interest and Contingent Interest, if any;



30









 






     (xi) that, in order to withdraw any Repurchase Notice previously delivered by a Holder
to the Paying Agent, the Holder must deliver to the Paying Agent, prior to the Close of
Business on the Business Day immediately preceding the Specified Repurchase Date, a written
notice of withdrawal specifying (A) the certificate number, if any, of the Securities in
respect of which such notice of withdrawal is being submitted (or if Certificated Securities
have not been issued, the notice of withdrawal must comply with the Applicable Procedures),
(B) the principal amount of Securities in respect of which such notice of withdrawal is
being submitted, and (C) if the Holder is not withdrawing its Repurchase Notice for all of
its Securities, the principal amount of the Securities which still remain subject to the
original Repurchase Notice; and




     (xii) that Holders whose Securities are being repurchased only in part will be issued
new Securities equal in principal amount to the portion of the Securities that is not to be
repurchased, which portion must be equal to $1,000 in principal amount or an integral
multiple thereof.



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




          (b) A Holder may exercise its rights specified in Section 3.07(a) upon delivery to the Paying
Agent of a written notice of repurchase substantially in the form set forth in Exhibit A (a
“Repurchase Notice”) during the period beginning at any time from the opening of business on the
date that is 20 Business Days prior to the relevant Specified Repurchase Date until the Close of
Business on the Business Day immediately preceding such Specified Repurchase Date, stating:





     (i) if Certificated Securities have been issued, the certificate number(s) of the
Securities which the Holder shall deliver to be repurchased or, if Certificated Securities
have not been issued for such Security, the Repurchase Notice shall comply with the
Applicable Procedures;




     (ii) the portion of the principal amount of the Security which the Holder shall deliver
to be repurchased, which portion must be in principal amounts of $1,000 or an integral
multiple of $1,000; and




     (iii) that such Security (or portion thereof) shall be repurchased by the Company as of
the Repurchase Date pursuant to the terms and conditions specified in the Securities and in
this Indenture.



          The delivery of such Security (together with all necessary endorsements) to the Paying Agent
at any time after delivery of the Repurchase Notice at the offices of the Paying Agent shall be a
condition to receipt by the Holder of the Repurchase Price therefor; provided, however, that such
Repurchase Price shall be so paid pursuant to this Section 3.07 only if the Security (together with
all necessary endorsements) so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Repurchase Notice.




31









 








          The Company shall only be obliged to purchase, pursuant to this Section 3.07, a portion of a
Security if 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 3.07
shall be consummated by the delivery of the Repurchase Price to be received by the Holder promptly
following the later of the Specified Repurchase Date and the time of delivery of the Security (or
portion thereof) to be repurchased (together with all necessary endorsements or notifications of
book-entry transfer).




          Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.07 shall have the right to withdraw such
Repurchase Notice by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.09(b) at any time prior to the Close of Business on the Business Day immediately
preceding the Repurchase Date.




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




          There shall be no repurchase of any Securities pursuant to this Section 3.07 if an Event of
Default (other than a default in the payment of the Repurchase Price) has occurred prior to, on or
after, as the case may, the giving by the Holders of such Securities of the required Repurchase
Notice and such Event of Default is continuing. The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a 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 Repurchase Price) in which case, upon such
return, the Repurchase Notice with respect thereto shall be deemed to have been withdrawn.




     Section 3.08. Repurchase of Securities at Option of the Holder upon a Fundamental
Change.



     (a) In the event a Fundamental Change shall occur at any time when any Securities remain
outstanding, each Holder shall have the right, at such Holder’s option, to require the Company to
purchase all of such Holders’ Securities not called for redemption or any portion of the principal
amount thereof that is equal to $1,000 or an integral multiple thereof on a date specified by the
Company (the “Fundamental Change Purchase Date”, together with the Specified Repurchase Dates, the
“Repurchase Dates”) that is 30 Business Days after the date the on which the Fundamental Change
occurs (or on which the transaction constituting the Fundamental Change becomes effective), at a
purchase price in cash equal to 100% of the principal amount of the Securities tendered for
purchase, plus accrued and unpaid interest, if any, including Contingent Interest, if any, on those
Securities to, but excluding, the Fundamental Change Purchase Date (the “Fundamental Change
Purchase Price”), subject to satisfaction by or on behalf of any Holder of the requirements set
forth in Section 3.08(c); provided that if the Fundamental Change Purchase Date is on a date that
is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the
Fundamental Change Purchase Price shall




32












 




be 100% of the principal amount of the Securities repurchased but shall not include accrued
and unpaid interest, if any, including Contingent Interest, if any. Instead, the Company shall pay
such accrued and unpaid interest, if any, including Contingent Interest, if any, on the Interest
Payment Date, to the Holder of record at the Close of Business on the corresponding Regular Record
Date.




     (b) Not later than 20 calendar days prior to the date on which a fundamental change is
expected to occur (or a transaction constituting a Fundamental Change is expected to become
effective), the Company shall mail a written notice of the occurrence of the Fundamental Change and
of the resulting purchase right to the Trustee, Paying Agent and to each Holder of record of
Securities (an “Issuer Fundamental Change Notice”). The Issuer Fundamental Change Notice shall
include the form of a Fundamental Change Purchase Notice (defined below) to be completed by the
Holder and shall state:




     (1) the events causing such Fundamental Change;




     (2) the date (or expected date) of such Fundamental Change;




     (3) the last date by which the Fundamental Change Purchase Notice must be delivered to
elect the purchase option pursuant to this Section 3.08;




     (4) the Fundamental Change Purchase Date;




     (5) the Fundamental Change Purchase Price;




     (6) the Holder’s right to require the Company to purchase the Securities;




     (7) the name and address of each Paying Agent and Conversion Agent;




     (8) the then effective Base Conversion Rate and any adjustments to the Base Conversion
Rate resulting from such Fundamental Change;




     (9) the procedures that the Holder must follow to exercise rights under Article 4 of
this Indenture and that the Securities as to which a Fundamental Change Purchase Notice has
been given may be converted into Common Stock pursuant to Article 4 of this Indenture only
to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;




     (10) the procedures that the Holder must follow to exercise rights under this Section
3.08;




     (11) the procedures for withdrawing a Fundamental Change Purchase Notice;




     (12) that, unless the Company fails to pay such Fundamental Change Purchase Price,
Securities covered by any Fundamental Change Purchase Notice will cease to be outstanding
and interest, including Contingent Interest, if any, will cease to accrue on and after the
Fundamental Change Purchase Date; and



33









 






     (13) the CUSIP number of the Securities.



     At the Company’s written request, the Trustee shall give such Issuer Fundamental Change Notice
in the Company’s name and at the Company’s expense; provided that, in all cases, the text of such
Issuer Fundamental Change Notice shall be prepared by the Company. In connection with the delivery
of the Issuer Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the Issuer Fundamental Change
Notice in a newspaper of general circulation in the City of New York or publish information on a
website of the Company or through such other public medium the Company may use at that time. If
any of the Securities is in the form of a Global Security, then the Company shall modify such
notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of
Global Securities.



     (c) A Holder may exercise its rights specified in Section 3.08(a) upon delivery of a written
notice (which shall be in substantially the form set forth in the form of Security attached as
Exhibit A under the heading “Fundamental Change Purchase Notice” and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or in any other written form and,
in the case of Global Securities, may be delivered electronically or by other means in accordance
with the Depositary’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change
Purchase Notice”) to the Paying Agent at any time prior to the Close of Business on the Business
Day immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with
applicable law.




     (1) The Fundamental Change Purchase Notice shall state: (A) if Certificated Securities
are to be purchased, the certificate numbers of the Securities which the Holder will deliver
to be purchased (or, if the Security is held in global form, any other items required to
comply with the Applicable Procedures), (B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion must be a principal
amount of $1,000 or any integral multiple thereof and (C) that such Security shall be
purchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture.




     (2) The delivery of a Security for which a Fundamental Change Purchase Notice has been
timely delivered to any Paying Agent and not validly withdrawn prior to, on or after the
Fundamental Change Purchase Date (together with all necessary endorsements) at the office of
such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental
Change Purchase Price therefor.




     (3) The Company shall only be obliged to purchase, pursuant to this Section 3.08, a
portion of a Security if the principal amount of such portion is $1,000 or an integral
multiple thereof. Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.




     (4) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying
Agent the Fundamental Change Purchase Notice contemplated by this Section 3.08(c) shall have
the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion
thereof that is a principal amount of $1,000 or in an integral



34









 






multiple thereof at any time prior to the Close of Business on the Business Day prior
to the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 3.09(b).




     (5) A Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written withdrawal thereof.




     (6) Anything herein to the contrary notwithstanding, in the case of Global Securities,
any Fundamental Change Purchase Notice may be delivered or withdrawn and such Securities may
be surrendered or delivered for purchase in accordance with the Applicable Procedures as in
effect from time to time.



     Section 3.09. Effect of Repurchase Notice or Fundamental Change Purchase Notice.



     (a) Upon receipt by any Paying Agent of a Repurchase Notice or a Fundamental Change Purchase
Notice, the Holder of the Security in respect of which such Repurchase Notice or Fundamental Change
Purchase Notice, as the case may be, was given shall (unless such Repurchase Notice or Fundamental
Change Purchase Notice is withdrawn as specified below) thereafter be entitled to receive the
Repurchase Price or Fundamental Change Purchase Price, as the case may be, with respect to such
Security. The Repurchase Price or Fundamental Change Purchase Price, as the case may be, shall be
paid to such Holder promptly following the later of (i) the applicable Repurchase Date with respect
to such Security (provided such Holder has satisfied the conditions in Section 3.07 or 3.08, as the
case may be), (ii) the time of delivery of such Security to a Paying Agent by the Holder thereof in
the manner required by Section 3.07 or 3.08, as the case may be. A Security in respect of which a
Repurchase Notice or a Fundamental Change Purchase Notice has been given by the Holder thereof may
not be converted pursuant to Article 4 hereof on or after the date of the delivery of such
Repurchase Notice or Fundamental Change Purchase Notice, unless either (i) such Repurchase Notice
or Fundamental Change Purchase Notice has first been validly withdrawn in accordance with Section
3.09(b); or (ii) there shall be a default in the payment of the Repurchase Price or Fundamental
Change Purchase Price, provided, that the conversion right with respect to such Security shall
terminate at the Close of Business on the date such default is cured and such Security is purchased
in accordance herewith.



     (b) A Repurchase Notice or Fundamental Change Purchase Notice may be withdrawn by any Holder
delivering such Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, upon
delivery of a written notice of withdrawal (which may be delivered by mail, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Applicable
Procedures) to and actually received by Paying Agent at any time prior to the Close of Business on
the Business Day immediately preceding the applicable Repurchase Date, specifying:




     (i) if Certificated Securities are to be withdrawn, the certificate numbers of the
Securities in respect of which such notice of withdrawal is being submitted (or, if the
Security is held in global form, any other items required to comply with the Applicable
Procedures);



35









 






     (ii) the principal amount of the Securities in respect of which such notice of
withdrawal is being submitted, which principal amount must be $1,000 or an integral multiple
thereof; and




     (iii) the principal amount, if any, of the Securities that remains subject to the
original Repurchase Notice or Fundamental Change Purchase Notice, as the case may be, and
that has been or shall be delivered for purchase by the Company.



     Section 3.10. Deposit of Repurchase Price or Fundamental Change Purchase Price.



     Prior to 10:00 a.m., New York City time, on a Repurchase Date, the Company shall deposit with
the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 2.04) an amount in cash (in immediately
available funds) sufficient to pay the aggregate Repurchase Price or Fundamental Change Purchase
Price, as the case may be, of all the Securities or portions thereof that are to be purchased on
that Repurchase Date.



     If a Paying Agent holds, in accordance with the terms hereof, at 10:00 a.m., New York City
time, on a Repurchase Date, cash sufficient to pay the aggregate Repurchase Price or Fundamental
Change Purchase Price, as the case may be, of all Securities for which a Repurchase Notice or
Fundamental Change Purchase Notice has been delivered and not validly withdrawn in accordance with
this Indenture, then, on and after such Repurchase Date, such Securities shall cease to be
outstanding and interest, including Contingent Interest, if any, on such Securities shall cease to
accrue, whether or not such Securities are delivered to the Paying Agent, and the rights of the
Holders in respect thereof shall terminate (other than the right to receive the Repurchase Price or
Fundamental Change Purchase Price, as applicable, upon delivery of such Securities by their Holders
to the Paying Agent).



     Section 3.11. Securities Purchased in Part.



     Any Certificated Security that is to be purchased only in part shall be surrendered at the
office of a Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form reasonably satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and promptly
after a Repurchase Date, the Company shall issue and the Trustee shall, upon receipt of a Company
Order (which the Company agrees to deliver promptly), authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of such authorized
denomination or denominations as may be 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
that is not purchased by the Company on such Repurchase Date.



     Section 3.12. Repayment to the Company.



     To the extent that the aggregate amount of cash deposited by the Company pursuant to Section
3.10 exceeds the aggregate Repurchase Price or Fundamental Change Purchase Price, as the case may
be, of the Securities or portions thereof that the Company is obligated to purchase on the
applicable Repurchase Date, then promptly after the applicable Repurchase Date, the



36









 




Paying Agent shall return any such excess cash to the Company.




     Section 3.13. Compliance With Securities Laws Upon Purchase of Securities.



     When complying with the provisions of Article 3 hereof and subject to any exemptions available
under applicable law, the Company shall:



     (a) comply with the provisions of any tender offer rules under the Exchange Act that may then
be applicable to the Company’s purchase of Securities under Article 3;



     (b) file a Schedule TO (or any successor or similar schedule, form or report) if required
under the Exchange Act; and



     (c) otherwise comply with all federal and state securities laws so as to permit the rights and
obligations in connection with any purchase pursuant to this Article 3 to be exercised in the time
and in the manner specified herein.



     To the extent that compliance with any such laws, rules and regulations would result in a
conflict with any of the terms hereof, this Indenture is hereby modified to the extent required for
the Company to comply with such laws, rules and regulations.



     Section 3.14. Purchase of Securities In Open Market.



     The Company may purchase Securities in the open market or by tender at any price or pursuant
to private agreements. The Company shall surrender any Security purchased by the Company pursuant
to this Article 3 to the Trustee for cancellation. Any Securities surrendered to the Trustee for
cancellation may not be reissued or resold by the Company and will be canceled promptly in
accordance with Section 2.12.



ARTICLE 4




CONVERSION




     Section 4.01. Conversion Privilege and Base Conversion Rate.



     (a) Any Security or portion thereof that is an integral multiple of $1,000 principal amount
may be converted by the Holder thereof in accordance with the provisions of this Article 4. Upon
conversion, Holders shall be entitled to receive the amount of cash and, if applicable, shares of
Common Stock determined in the manner provided in Section 4.12. Securities may be converted at any
time prior to the Close of Business on the Business Day immediately preceding the Final Maturity
Date only under the following circumstances:




     (1) on any Business Day in any fiscal quarter commencing at any time after March 31,
2008, and only during such fiscal quarter, if, as of the last day of the immediately
preceding fiscal quarter, the Closing Sale Price of the Common Stock for at least 20 Trading
Days in the period of 30 consecutive Trading Days ending on the last Trading Day of such
preceding fiscal quarter was more than 130% of the Base



37









 




     Conversion Price per share of Common
Stock on the last day of such preceding fiscal quarter;





     (2) on any Business Day during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount of Securities, as
determined by the Trustee following a request in writing by a Holder in accordance with the
procedures described in Section 4.01(b), for each Trading Day of that period was less than
97% of the product of the Closing Sale Price of the Common Stock on such day and the then
applicable Daily Conversion Rate for such day;




     (3) if the Company calls any or all of the Securities for redemption pursuant to
Section 3.01;




     (4) if the Company distributes to all holders of Common Stock any rights entitling them
to purchase, for a period expiring within 45 days of such distribution, Common Stock, or
securities convertible into Common Stock, at less than, or having a conversion price per
share less than, the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the declaration date for such distribution;




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




     (6) if a Fundamental Change occurs; or




     (7) at any time during the period beginning December 15, 2037 and ending at the Close
of Business on the Business Day immediately preceding the Final Maturity Date.



     (b) In connection with clause (1) of Section 4.01(a), the Company shall determine at the
beginning of each fiscal quarter commencing at any time after March 31, 2008 whether the Securities
are convertible pursuant to such clause (1) and shall notify the Trustee. In addition, in
connection with clause (2) of Section 4.01(a), the Trustee shall have no obligation to determine
the Trading Price of the Securities and whether the Securities are convertible pursuant to such
clause (2) unless the Company has requested such determination and the Company shall have no
obligation to make such request unless a Holder of the Securities provides the Company with
reasonable evidence in writing that the Trading Price per $1,000 principal amount of Securities
would be less than 97% of the product of the Closing Sale Price of the Common Stock and the then
applicable Daily Conversion Rate per $1,000 principal amount of Securities. At such time, the
Company shall instruct the Trustee in writing to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of Securities is greater than 97% of the product of the Closing Sale Price
of the Common Stock and the then applicable Daily Conversion Rate.



38









 





     (c) If any of the Securities are called for redemption pursuant to Section 3.01, Holders may
convert Securities that have been so called for redemption at any time prior to the Close of
Business on the Business Day prior to the Redemption Date, even if the Securities are not otherwise
convertible at such time. Following the Close of Business on the Business Day
prior to the Redemption Date, the Holders’ right to convert their Securities under Section
4.01(a)(3) will expire unless the Company defaults in making the payment of the Redemption Price.



     (d) In the case of a distribution contemplated by clause (4) or (5) of Section 4.01(a), the
Company shall notify Holders and the Trustee at least 35 days prior to the ex-dividend date
(defined below) for such distribution (the “Distribution Notice”). Once the Company has given the
Distribution Notice, Holders may surrender their Securities for conversion at any time until the
earlier of the Close of Business on the Business Day prior to the ex-dividend date or the Company’s
announcement that such distribution will not take place. In the event of a distribution
contemplated by clause (4) or (5) of Section 4.01(a), Holders may not convert the Securities if the
Holders will otherwise participate in such distribution on an as converted basis (assuming for this
purpose that the Securities were convertible solely into a number of shares of Common Stock equal
to the then applicable Daily Conversion Rate). The “ex-dividend date” is the first date upon which
a sale of the Common Stock does not automatically transfer the right to receive the relevant
distribution from the seller of the Common Stock to its buyer. The Company will provide written
notice to the Conversion Agent as soon as reasonably practicable of any anticipated or actual event
or transaction that will cause or causes the Securities to become convertible pursuant to clauses
(4) or (5) of Section 4.01(a).



     (e) In the case of a Fundamental Change, the Company shall provide notice thereof (a
“Fundamental Change Conversion Notice”) to the Holders of Securities and the Trustee at least 20
calendar days prior to the anticipated effective date of any Fundamental Change. Holders may
surrender Securities for conversion at any time beginning on the anticipated effective date and
ending on the Trading Day prior to the Fundamental Change Purchase Date.



     (f) The conversion rights pursuant to this Article 4 shall commence on the Issue Date of the
Securities and expire at the Close of Business on the Business Day immediately preceding the Final
Maturity Date, but shall be exercisable only during the time periods specified with respect to each
circumstance pursuant to which the Securities become convertible, subject, in the case of
conversion of any Global Security, to any Applicable Procedures.



     (g) Securities in respect of which a Fundamental Change Purchase Notice or Repurchase Notice
has been delivered may not be surrendered for conversion pursuant to this Article 4 prior to a
valid withdrawal of such Fundamental Change Purchase Notice or Repurchase Notice, in accordance
with the provisions of Article 3.



     (h) Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.



     (i) The Base Conversion Rate shall be adjusted in certain instances as provided in Section
4.01(j) and Section 4.06.



39









 





     (j) If a Fundamental Change occurs prior to January 15, 2013 as a result of a transaction
described in clauses (1), (2) or (4) of the definition of the term “Change of Control” or as a
result of a Termination of Trading, and a Holder elects to convert its Securities “in connection
with” such transaction, the Company shall pay a “Make Whole Premium” by increasing the applicable Base Conversion Rate for the Securities surrendered for conversion
by a number of additional shares of Common Stock as provided in this Section 4.01(j) (the
“Additional Shares”). A conversion of Securities shall be deemed for these purposes to be “in
connection with” such Fundamental Change transaction if the notice of conversion is received by the
Conversion Agent from and including the effective date of such Fundamental Change transaction (the
“Effective Date”) and prior to the Close of Business on the Business Day prior to the Fundamental
Change Purchase Date.



     The number of Additional Shares per $1,000 principal amount of Securities constituting the
Make Whole Premium shall be determined by reference to the table below and shall be based on the
Effective Date and the price (the “Stock Price”) paid, or deemed to be paid, per share of Common
Stock in such transaction, subject to adjustments as set forth herein. If holders of Common Stock
receive only cash in the Fundamental Change transaction, the Stock Price shall be the cash amount
paid per share of Common Stock. Otherwise, the Stock Price shall be the average of the Closing
Sale Prices of the Common Stock for each of the ten consecutive Trading Days prior to but excluding
the Effective Date.



     The following table sets forth the Additional Share amounts, if any, by which the applicable
Base Conversion Rate shall be increased for each Stock Price and Effective Date.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Make Whole Premium (Increase in Applicable Base Conversion Rate)
	 
	Stock Price on Effective	 	 	 	 	 	 	 	 	 	 	 	 
	Date	 	1/9/08	 	1/15/09	 	1/15/10	 	1/15/11	 	1/15/12	 	1/15/13
	$44.74
	 	 	8.8051	 	 	 	8.8051	 	 	 	8.8051	 	 	 	8.8051	 	 	 	8.8051	 	 	 	8.8051	 
	$50.00
	 	 	7.7085	 	 	 	7.3243	 	 	 	6.9085	 	 	 	6.4717	 	 	 	6.4537	 	 	 	6.4537	 
	$60.00
	 	 	6.4551	 	 	 	5.9387	 	 	 	5.3335	 	 	 	4.6208	 	 	 	3.7278	 	 	 	3.1204	 
	$80.00
	 	 	4.9407	 	 	 	4.3866	 	 	 	3.7170	 	 	 	2.9109	 	 	 	1.8478	 	 	 	0.0000	 
	$100.00
	 	 	3.4031	 	 	 	2.9129	 	 	 	2.3265	 	 	 	1.6510	 	 	 	0.8498	 	 	 	0.0000	 
	$150.00
	 	 	1.8411	 	 	 	1.5257	 	 	 	1.1586	 	 	 	0.7795	 	 	 	0.4018	 	 	 	0.0000	 
	$200.00
	 	 	1.2377	 	 	 	1.0259	 	 	 	0.7795	 	 	 	0.5353	 	 	 	0.2847	 	 	 	0.0000	 
	$250.00
	 	 	0.9160	 	 	 	0.7660	 	 	 	0.5837	 	 	 	0.4048	 	 	 	0.2166	 	 	 	0.0000	 
	$300.00
	 	 	0.7122	 	 	 	0.6003	 	 	 	0.4579	 	 	 	0.3195	 	 	 	0.1713	 	 	 	0.0000	 






     If the actual Stock Price or the Effective Date is not set forth in the table above, then:




     (i) if the actual Stock Price on the Effective Date is between two Stock Price amounts
in the table or the actual Effective Date is between two Effective Dates in the table, the
Additional Share amounts will be determined by a straight-line interpolation between the
Additional Share amounts set forth for the higher and lower Stock Prices and the two
Effective Dates on the table, as applicable, based on a 365-day year;



40









 






     (ii) if the actual Stock Price on the Effective Date exceeds $300.00 per share of
Common Stock, subject to adjustment as set forth herein, no adjustment to the Base
Conversion Rate shall be made; and




     (iii) if the actual Stock Price on the Effective Date is less than $44.74 per share of
Common Stock, subject to adjustment as set forth herein, no adjustment to the Base
Conversion Rate shall be made.



     The Stock Prices set forth in the first column of the table above will be adjusted as of any
date on which the Base Conversion Rate of the Securities is adjusted pursuant to Section 4.06
hereof. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Base Conversion Rate immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is
the Base Conversion Rate as so adjusted. The number of Additional Share amounts set forth in the
table above will be adjusted in the same manner as the Base Conversion Rate as set forth in Section
4.06 hereof.



     Notwithstanding the foregoing, in no event shall the Base Conversion Rate exceed 22.3513
shares per $1,000 principal amount of Securities, subject to adjustment in the manner set forth in
subsections (a) through (c) of Section 4.06 hereof.



     Section 4.02. Conversion Procedure.



     (a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security (which shall be substantially in the form set forth in the form of
Security attached as Exhibit A under the heading “Conversion Notice”) and deliver such notice to
the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, (4) pay an amount equal to
the interest (including Contingent Interest, if any) payable on the next Interest Payment Date if
and as required by Section 4.02(c) and (5) pay all transfer or similar taxes, if required pursuant
to Section 4.04. The “Conversion Date” with respect to a Security means the date on which the
Holder of the Security has complied with all of the foregoing requirements to convert such
Security. Anything herein to the contrary notwithstanding, in the case of Global Securities,
Securities may be surrendered in accordance with the Applicable Procedures of the Depositary as in
effect from time to time.



     The Conversion Agent will, on the Holder’s behalf, convert the Securities into the right to
receive shares of the Company’s Common Stock or cash in lieu of all or a portion thereof. The
Holder may obtain additional copies of the required form of the Conversion Notice from the
Conversion Agent.



     Upon the conversion of a Security, the Company shall deliver the Conversion Obligation
determined in accordance with Section 4.12 which shall be owing upon such conversion on the third
Trading Day following the last Trading Day of the applicable Conversion Reference Period (the
“Settlement Date”). Notwithstanding the foregoing, in the event that a Holder converts Securities
“in connection with” a Fundamental Change in which the consideration for the Common Stock is
comprised entirely of cash, the Conversion Obligation will be calculated based



41









 




solely on the Stock
Price (as such term is defined for purposes of Fundamental Change transactions involving solely
cash consideration) with respect to the transaction and will be deemed to be an amount equal to the
Daily Conversion Rate (determined as described in Section 1.01 taking into account any adjustment
thereto pursuant to Section 4.01(j) and substituting such stock price for the Volume Weighted
Average Price) multiplied by such Stock Price. In such event, the Conversion Obligation shall be
determined and paid to Holders in cash as promptly as practicable but in any event no later than
the third Trading Day following the surrender of the Securities for conversion.




     (b) A Holder shall not be entitled to any rights of a holder of Common Stock until such Holder
has converted its Securities and received upon conversion thereof shares of Common Stock. The
person in whose name any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion, if any, shall become on the date any such certificate or certificates are
delivered to such Holder in accordance with the provisions of this Article 4, the holder of record
of the shares represented thereby. Except as set forth in this Indenture, no payment or adjustment
will be made for dividends or distributions declared or made on shares of Common Stock issued upon
conversion of a Security prior to the issuance of such shares of Common Stock.



     (c) Upon conversion of a Security, a Holder will not receive any cash payment representing any
accrued and unpaid interest, including Contingent Interest, if any, through the Conversion Date.
Instead, accrued and unpaid interest, including Contingent Interest, if any, will be deemed paid by
the consideration paid upon conversion. The payment and delivery to the Holder of Common Stock
into which such Holder’s Securities are convertible or cash in lieu of all or a portion thereof,
together with any cash payment for fractional shares, will be deemed to satisfy the Company’s
obligation to pay the principal amount of the Securities and the Company’s obligation to pay
accrued but unpaid interest, including Contingent Interest, if any, attributable to the period from
the most recent Interest Payment Date through the Conversion Date. Accrued and unpaid interest,
including Contingent Interest, if any, through the Conversion Date shall be deemed to be paid in
full rather than cancelled, extinguished or forfeited.



          Notwithstanding the foregoing, Holders of Securities surrendered for conversion (in whole or
in part) during the period from the Close of Business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date will receive the semiannual interest payable
on such Securities on the corresponding Interest Payment Date notwithstanding the conversion, and
such interest shall be payable on the corresponding Interest Payment Date to the Holder of the
Security as of the Close of Business on the Regular Record Date. Upon surrender of any such
Securities for conversion after the Close of Business on such Regular Record Date, such Securities
shall also be accompanied by payment by the Holders of such Securities in funds to the Conversion
Agent acceptable to the Company of an amount equal to the interest payable on such corresponding
Interest Payment Date; provided that no such payment need be made: (1) if the Company has called
the Securities for redemption on a Redemption Date that falls after a Regular Record Date for an
Interest Payment Date and on or prior to the corresponding Interest Payment Date; (2) in connection
with a conversion following the Regular Record Date preceding the Final Maturity Date; (3) if the
Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on
or prior to the corresponding Interest Payment Date; or (4) to the extent of any overdue interest
or overdue




42









 







Contingent Interest, if any such overdue interest or overdue Contingent Interest exists
at the time of conversion with respect to such Securities. Except as otherwise provided in this
Section 4.02(c), no payment or adjustment will be made for any accrued and unpaid interest
(including Contingent Interest, if any) on a converted Security. The Company shall not be required
to convert any Securities which are surrendered for conversion without payment of interest
(including Contingent Interest, if any) as required by this Section 4.02(c).




          The Base Conversion Rate will not be adjusted for accrued and unpaid interest, including
Contingent Interest.




     (d) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall upon receipt of a Company Order (which the Company
agrees to deliver promptly) authenticate and deliver to the Holder thereof, without service charge,
a new Security or Securities of authorized denominations in an aggregate principal amount equal to,
and in exchange for, the unconverted portion of the principal amount of such Security.



     (e) Upon the Company’s determination that Holders are or will be entitled to convert their
Securities in accordance with the provisions of this Article 4, the Company shall promptly issue a
press release or otherwise publicly disclose this information and use its reasonable efforts to
post such information on the Company’s website.



     Section 4.03. Fractional Shares.



     The Company will not issue fractional shares of Common Stock upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares that 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. In lieu of any fractional shares, the Company shall pay an amount in cash
equal to the applicable fraction of a share multiplied by the arithmetic average of the Volume
Weighted Average Price of the Common Stock for the 20 consecutive Trading Days of the applicable
Conversion Reference Period, rounding to the nearest whole cent.



     Section 4.04. Taxes on Conversion.



     The issue of stock certificates, if any, on conversion of Securities shall be made without
charge to the converting Holder for any documentary, stamp or similar issue or transfer tax in
respect of the issue thereof. The Company shall not, however, be required to pay any such tax
which may be payable in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the Holder of any Security 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. Nothing herein shall preclude any
tax withholding required by law or regulation.



43









 





     Section 4.05. Company To Provide Common Stock.



     (a) The Company shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a sufficient number of
shares of Common Stock to permit the conversion of all outstanding Securities in accordance with
the provisions of this Indenture.



     (b) All shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive or similar rights and free of any lien or adverse
claim as the result of any action by the Company.



     (c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any,
and will list or cause to have listed such shares of Common Stock on the NASDAQ Global Select
Market, or each national securities exchange or over the counter market or such other market on
which the Common Stock is then listed or quoted.



     Section 4.06. Adjustment of Base Conversion Rate.



     The Base Conversion Rate shall be adjusted from time to time by the Company as follows:



     (a) If the Company issues Common Stock as a dividend or distribution on Common Stock to all
holders of Common Stock, or if the Company effects a share split or share combination, the Base
Conversion Rate will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x OS1/OS0
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate in effect taking such event into
account;
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately prior
to such event; and
	 
	 	 	 	 
	 

	 	OS1 =
	 	the number of shares of Common Stock outstanding immediately after
such event.





Any adjustment made pursuant to this Section 4.06(a) shall become effective on the date that is
immediately after (x) the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution or (y) the date on which such split or combination becomes
effective, as applicable. If any dividend or distribution described in this Section 4.06(a) is
declared but not so paid or made, the new Base Conversion Rate shall be readjusted to the Base




44









 







Conversion Rate that would then be in effect if such dividend or distribution had not been
declared.




     (b) If the Company issues to all holders of Common Stock any rights, warrants, options or
other securities entitling them for a period of not more than 45 days after the date of issuance
thereof to subscribe for or purchase Common Stock, or if the Company issues to all holders of
Common Stock securities convertible into Common Stock for a period of not more than 45 days after
the date of issuance thereof, in either case at an exercise price per share of Common Stock or a
conversion price per share of Common Stock less than the Closing Sale Price of the Common Stock on
the Business Day immediately preceding the time of announcement of such issuance, the Base
Conversion Rate will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (OS0+X)/(OS0+Y)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate taking such event into account;
	 
	 	 	 	 
	 

	 	OS0 =
	 	the number of shares of Common Stock outstanding immediately prior
to such event;
	 
	 	 	 	 
	 

	 	X =
	 	the total number of shares of Common Stock issuable pursuant
to such rights, warrants, options, other securities or convertible securities;
and
	 
	 	 	 	 
	 

	 	Y =
	 	the number of shares of Common Stock equal to the quotient of
(A) the aggregate price payable to exercise such rights, warrants, options,
other securities or convertible securities and (B) the average of the Closing
Sale Prices of the Common Stock for the 10 consecutive Trading Days prior to
the Business Day immediately preceding the date of announcement for the
issuance of such rights, warrants, options, other securities or convertible
securities.





For purposes of this Section 4.06(b), in determining whether any rights, warrants, options, other
securities or convertible securities entitle the holders to subscribe for or purchase, or exercise
a conversion right for, Common Stock at less than the applicable Closing Sale Price of the Common
Stock, and in determining the aggregate exercise or conversion price payable for such Common Stock,
there shall be taken into account any consideration received by the Company for such rights,
warrants, options, other securities or convertible securities and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to be determined by
the Board of Directors of the Company. Any adjustment made pursuant to this Section 4.06(b) shall
become effective on the date that is immediately after the date fixed for the determination of
shareholders entitled to receive such rights, warrants, options, other securities or convertible
securities. If any right, warrant, option, other security or convertible security described in
this Section 4.06(b) is not exercised or converted prior to the expiration of the




45









 







exercisability or
convertibility thereof, the new Base Conversion Rate shall be readjusted to the Base Conversion
Rate that would then be in effect if such right, warrant, option, other security or convertible
security had not been so issued.




     (c) If the Company distributes capital stock, evidences of indebtedness or other assets or
property of the Company to all holders of Common Stock, excluding:




     (1) dividends, distributions, rights, warrants, options, other securities or
convertible securities referred to in Section 4.06(a) or (b) above,




     (2) dividends or distributions paid exclusively in cash, and




     (3) Spin-Offs described below in this Section 4.06(c),


then the Base Conversion Rate will be adjusted based on the following formula:




	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x SP0/(SP0-FMV)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate taking such event into account;
	 
	 	 	 	 
	 

	 	SP0 =
	 	the Closing Sale Price of the Common Stock over the 10 consecutive
trading days ending on the Trading Day immediately preceding the ex-dividend
date for such distribution; and
	 
	 	 	 	 
	 

	 	FMV =
	 	the fair market value (as determined in good faith by the
Board of Directors of the Company) of the capital stock, evidences of
indebtedness, assets or property distributed with respect to each outstanding
share of Common Stock on the ex-dividend date for such distribution.





An adjustment to the Base Conversion Rate made pursuant to this paragraph shall be made
successively whenever any such distribution is made and shall become effective on the ex-dividend
date for such distribution.




     If the Company distributes to all holders of Common Stock capital stock of any class or
series, or similar equity interest, of or relating to a subsidiary or other business unit of the
Company (a “Spin-Off”), the Base Conversion Rate in effect immediately before the Close of Business
on the date fixed for determination of holders of Common Stock entitled to receive such
distribution will be adjusted based on the following formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (FMV0+MP0)/MP0
	 
	 	 	 	 
	 

	 	where	 	 






46









 






	 	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate taking such event into account;
	 
	 	 	 	 
	 

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

	 	MP0 =
	 	the average of the Closing Sale Prices of the Common Stock over the
first 10 consecutive Trading Days after the effective date of the Spin-Off.





An adjustment to the Base Conversion Rate made pursuant to this paragraph will occur on the 10th
Trading Day from and including the effective date of the Spin-Off.




     If any such dividend or distribution described in this Section 4.06(c) is declared but not
paid or made, the new Base Conversion Rate shall be readjusted to be the Base Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.



     (d) If the Company pays or makes any dividend or distribution consisting exclusively of cash
to all holders of Common Stock, the Base Conversion Rate will be adjusted based on the following
formula:



	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (SP0)/(SP0-C)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate taking such event into account;
	 
	 	 	 	 
	 

	 	SP0 =
	 	the average of the Closing Sale Prices of the Common Stock over the
10 consecutive Trading Days ending on the Trading Day immediately preceding the
ex-dividend date for such distribution;
	 
	 	 	 	 
	 

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





An adjustment to the Base Conversion Rate made pursuant to this Section 4.06(d) shall become
effective on the ex-dividend date for such dividend or distribution. If any dividend or
distribution described in this Section 4.06(d) is declared but not so paid or made, the new Base
Conversion Rate shall be readjusted to the Base Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.




     (e) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or
exchange offer for Common Stock to the extent that the cash and value of any other



47









 




consideration
included in the payment per share of Common Stock exceeds the Closing Sale Price of the Common
Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer (the “Expiration Time”), the Base Conversion Rate will be
adjusted based on the following formula:




	 	 	 	 	 
	 

	 	CR1 =
	 	CR0 x (AC + (SP1 x
OS1))/(SP1 x OS0)
	 
	 	 	 	 
	 

	 	where	 	 
	 
	 	 	 	 
	 

	 	CR0 =
	 	the Base Conversion Rate in effect immediately prior to the
adjustment relating to such event;
	 
	 	 	 	 
	 

	 	CR1 =
	 	the new Base Conversion Rate taking such event into account;
	 
	 	 	 	 
	 

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

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

	 	OS1 =
	 	the number of shares of Common Stock outstanding immediately after
such tender or exchange offer expires (after giving effect to the purchase or
exchange of shares pursuant to such tender or exchange offer); and
	 
	 	 	 	 
	 

	 	SP1 =
	 	the average of the Closing Sale Prices of Common Stock for the 10
consecutive Trading Days commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.





If the application of the foregoing formula would result in a decrease in the Base Conversion Rate,
no adjustment to the Base Conversion Rate will be made.




     Any adjustment to the Base Conversion Rate made pursuant to this Section 4.06(e) shall become
effective on the date immediately following the determination of the average of the Closing Sale
Prices of Common Stock for purposes of SP1 above. If the Company or one of its
subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer
but the Company or the relevant subsidiary is permanently prevented by applicable law from
effecting any such purchase or all such purchases are rescinded, the new Base Conversion Rate shall
be readjusted to be the Base Conversion Rate that would be in effect if such tender or exchange
offer had not been made.



     (f) Notwithstanding the provisions of this Section 4.06, the Base Conversion Rate shall not
exceed 22.3513 shares per $1,000 principal amount of Securities, subject to adjustment in the
manner set forth in subsections (a) through (c) of this Section 4.06.



     (g) If the Company has in effect a rights plan while any Securities remain outstanding,
Holders will receive, upon a conversion of Securities in respect of which the Company is required
to deliver shares of Common Stock, in addition to such shares of Common



48









 




Stock, rights under the
Company’s stockholder rights plan unless, prior to conversion, the rights have expired, terminated
or been redeemed or unless the rights have separated from the Common Stock. If the rights provided
for in the rights plan adopted by the Company have separated from the Common Stock in accordance
with the provisions of the applicable stockholder rights agreement so that Holders would not be
entitled to receive any rights in respect of Common Stock, if any, that the Company is required to
deliver upon conversion of Securities, the Base Conversion Rate will be adjusted at the time of
separation as if the Company had distributed to all holders of Common Stock, capital stock,
evidences of indebtedness or other assets or property pursuant to Section 4.06(c) above, subject to
readjustment upon the subsequent expiration, termination or redemption of the rights.




     (h) For purposes of this Section 4.06, 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.



     (i) In addition to the adjustments described in this Section 4.06, the Company may increase
the Base Conversion Rate as the Board of Directors deems advisable to avoid or diminish any income
tax to Holders of our capital stock resulting from any dividend or distribution of capital stock
(or rights to acquire capital stock) or from any event treated as such for income tax purposes. The
Company may also, from time to time, to the extent permitted by applicable law, increase the Base
Conversion Rate by any amount for any period of at least 20 Business Days if the Board of Directors
has determined that such increase would be in the Company’s best interests. Any increase in the
Base Conversion Rate by the Board of Directors shall be subject to the Maximum Conversion Rate. If
the Board of Directors makes a determination to increase the Base Conversion Rate, it will be
conclusive. The Company shall give Holders of Securities at least 15 days notice of such an
increase in the Base Conversion Rate.



     (j) The Company shall not take any action that would result in an adjustment pursuant to the
above provisions without complying with the shareholder approval rules of the NASDAQ Global Select
Market or any stock exchange on which our common stock is listed at the relevant time.



     (k) If any adjustment is made to the Base Conversion Rate pursuant to Sections 4.06(a) through
(e), the same proportional adjustment will be made to the Maximum Conversion Rate, the Incremental
Share Factor and any Fixed Conversion Rate; provided that no adjustment will be made to the Maximum
Conversion Rate as a result of any adjustment to the Base Conversion Rate as described in Section
4.06(d) and (e) above.



     Section 4.07. No Adjustment.



     (a) The Company shall not make any adjustment to the Base Conversion Rate in accordance with
the provisions of Section 4.06 if Holders of the Securities are permitted to participate, on an
as-converted basis, in the transactions described in Section 4.06 (assuming for this purpose that
each $1,000 principal amount of Securities were convertible solely into a number of shares of
Common Stock equal to the Base Conversion Rate).



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     (b) No adjustment in the Base Conversion Rate shall be required to be made unless the
adjustment would require an increase or decrease of at least 1% of the Base Conversion Price. If
the adjustment is not made because the adjustment does not change the Base Conversion Rate by at
least 1%, then the adjustment that is not made will be carried forward and taken into account in
any future adjustment. All required calculations will be made to the nearest cent or 1/1,000th of
a share, as the case may be. Notwithstanding the foregoing, all adjustments not previously made
shall have effect with respect to any conversion of Securities on or after January 15, 2013.



     (c) Notwithstanding anything to the contrary contained herein, in addition to the other events
set forth herein on account of which no adjustment to the Base Conversion Rate shall be made, the
applicable Base Conversion Rate shall not be adjusted for: (i) the issuance of any
Common Stock pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of additional
optional amounts in Common Stock under any plan; (ii) the issuance of any shares of Common Stock or
options or rights to purchase those shares pursuant to any present or future employee, director or
consultant benefit plan, employee agreement or arrangement or program of the Company; (iii) the
issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security outstanding as of the date the Securities were first issued;
(iv) a change in the par value of the Common Stock; (v) accumulated and unpaid dividends or
distributions; or (vi) as a result of a tender offer solely to holders of fewer than 100 shares of
Common Stock.



     (d) Notwithstanding anything in this Section 4.07 to the contrary, in no event shall the Base
Conversion Rate be adjusted so that the Conversion Price would be less than $0.01.



     Section 4.08. Notice of Adjustment.



     Whenever the Base Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee, an Officer’s Certificate
setting forth the Base Conversion Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have
received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Base Conversion Rate and may assume that the last Base Conversion Rate of which
it has knowledge is still in effect. Promptly after delivery of such Officer’s Certificate, the
Company shall prepare a notice of such adjustment of the Base Conversion Rate setting forth the
adjusted Base Conversion Rate and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Base Conversion Rate to Holders within 20 Business Days
of the effective date of such adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.



     Section 4.09. Notice of Certain Transactions.



     In the event that the Company takes any action which would require an adjustment to the Base
Conversion Rate, the Company takes any action that requires the execution of a supplemental
indenture in accordance with the provisions of Section 4.10 or if there is a dissolution or
liquidation of the Company, the Company shall mail to Holders and file with the



50









 




Trustee a notice
stating the proposed record or effective date, as the case may be. The Company shall mail such
notice at least 20 days before such proposed effective date. Failure to mail such notice or any
defect therein shall not affect the validity of any transaction referred to in this Section 4.09.




     Section 4.10. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.



     (a) If the case of the following events (each, a “Business Combination”):




     (1) any recapitalization, reclassification or change of the Common Stock, other than
(A) a change in par value, or from par value to no par value, or from no par value to par
value, or (B) as a result of a subdivision or a combination,




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




     (3) any sale, lease or other transfer to a third party of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, or




     (4) any statutory share exchange,


in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that from and after the effective date of such Business
Combination, the settlement of the Conversion Obligation in accordance with the provisions of
Section 4.12 shall be based on, and each Conversion Share deliverable in respect of any such
settlement shall consist of, the kind and amount of shares of stock, other securities or other
property or assets (including cash or any combination thereof) which holders of Common Stock are
entitled to receive in respect of each share of Common Stock upon such Business Combination. For
purposes of the foregoing, where a Business Combination involves a transaction that causes the
Common Stock to be converted into the right to receive more than a single type of consideration
based upon any form of stockholder election, such consideration will be deemed to be the weighted
average of the types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election. If, in the case of any such Business Combination, the stock
or other securities and assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such Business Combination, 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, including to the extent practicable
the provisions providing for the repurchase rights set forth in Article 3 hereof. The Company
shall not become a party to any Business Combination unless its terms are materially consistent
with the provisions of this Section 4.10. The above provisions of this Section 4.10 shall
similarly apply to successive Business





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Combinations. None of the provisions of this Section 4.10
shall affect the right of a Holder of Securities to convert its Securities in accordance with the
provisions of this Article 4 prior to the effective date of a Business Combination.




     If this Section 4.10(a) applies to any event or occurrence, Section 4.06 hereof shall not
apply.



     (b) In the event the Company shall execute a supplemental indenture pursuant to this Section
4.10, the Company shall promptly file with the Trustee (1) an Officer’s Certificate briefly stating
the reasons therefore and that all conditions precedent have been complied with and (2) an Opinion
of Counsel to the effect that all conditions precedent thereto and hereunder have been complied
with, and shall promptly mail notice of the execution of such supplemental indenture to all
Holders. Failure to mail such notice or any defect therein shall not affect the validity of such
transaction and such supplemental indenture.



     Section 4.11. Trustee’s Disclaimer.



     (a) The Trustee shall have no duty to calculate the Base Conversion Rate or to make any
computation or determination in connection therewith or to determine when an adjustment under this
Article 4 should be made, how it should be made or what such adjustment should be, but may accept
as conclusive evidence of the same or the correctness of any such adjustment, and shall be
protected in relying upon, an Officer’s Certificate and Opinion of Counsel, including the Officer’s
Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 4.08. The Trustee makes no representation as to the validity or value of any securities
or assets issued upon conversion of Securities, and the Trustee shall not be responsible for the
Company’s failure to comply with any provisions of this Article 4, including, without limitation,
whether or not a supplemental indenture is required to be executed.



     (b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.10, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officer’s Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.10.



     (c) Neither the Trustee nor any Conversion Agent or any other Agent shall be responsible for
determining whether any event contemplated by this Article 4 has occurred which makes the
Securities eligible for conversion until the Company has delivered to the Trustee and any
Conversion Agent and each other Agent an Officer’s Certificate stating that such event has
occurred, on which Officer’s Certificate the Trustee and any such Conversion Agent and other Agent
may conclusively rely, and the Company agrees to deliver such Officer’s Certificate to the Trustee
and any such Conversion Agent and each other Agent promptly after the occurrence of any such event.



     Section 4.12. Settlement Upon Conversion.



     (a) Holders surrendering Securities for conversion shall be entitled to receive, for each
$1,000 principal amount of Securities surrendered for conversion a number of shares of




52












 




Common Stock (the “Conversion Shares”) equal to the sum of the Daily Share Amounts for each of the 20
consecutive Trading Days in the applicable Conversion Reference Period, subject to the Company’s
right to deliver cash in lieu of all or a portion of such Conversion Shares as set forth in Section
4.12(b) (the amount so deliverable upon conversion of the Securities, the “Conversion Obligation”).
The Company will deliver such cash and any shares of Common Stock, together with any cash payable
for fractional shares, to such Holder in accordance with Section 4.02(a).




     (b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Conversion Shares otherwise issuable pursuant to Section
4.12(a). In such event, on any day prior to the first Trading Day of the applicable Conversion
Reference Period, the Company may specify a percentage of the Daily Share Amount that will be
settled in cash (the “Cash Percentage”). If the Company elects to specify a Cash Percentage, the
amount of cash that the Company will deliver in respect of the Daily Share Amount for each Trading
Day in the applicable Conversion Reference Period will equal the product of: (1) the Cash
Percentage, (2) the Daily Share Amount for such Trading Day and (3) the Volume Weighted Average
Price of the Company’s Common Stock on such Trading Day. The number of shares that the Company
shall deliver in respect of the Daily Share Amount for each Trading Day in the applicable
Conversion Reference Period will be the Daily Share Amount multiplied by a percentage calculated as
100% minus the Cash Percentage. If the Company does not specify a Cash Percentage by the start of
the applicable Conversion Reference Period, the Company shall settle 100% of the Daily Share Amount for each Trading Day in the
applicable Conversion Reference Period with shares of Common Stock; provided, however, that the
Company shall pay cash in lieu of fractional shares otherwise issuable upon conversion of the
Securities in accordance with Section 4.03.



     (c) For the purposes of Sections 4.12(a) and (b), in the event that any of the Daily
Conversion Rates, Conversion Shares, Daily Share Amounts, or Volume Weighted Average Price is not
calculable for all portions of the Conversion Reference Period, the Company’s Board of Directors
shall in good faith determine the values necessary to calculate the Daily Conversion Rates,
Conversion Shares, Daily Share Amounts, and Volume Weighted Average Price (which calculations shall
be evidenced by an Officer’s Certificate delivered to the Trustee).



ARTICLE 5




COVENANTS




     Section 5.01. Payment of Securities.



     (a) The Company shall duly and punctually pay the principal of and interest (including
Contingent Interest, if any) on the Securities in accordance with the terms of the Securities and
this Indenture, and will duly comply with all the other terms, agreements and conditions contained
in, or made in this Indenture for the benefit of, the Holders.



     (b) A payment of principal or interest (including Contingent Interest, if any) shall be
considered paid on the date it is due if the Paying Agent (other than the Company) (or if the
Company is the Paying Agent, the segregated account or separate trust fund maintained by the
Company pursuant to Section 2.04) holds by 10:00 a.m., New York City time, on that date



53









 




money, deposited by or on behalf of the Company sufficient to make the payment. Accrued and unpaid
interest, including Contingent Interest, if any, on any Security that is payable (whether or not
punctually paid or duly provided for) on any 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. The Company shall, to
the fullest extent permitted by law, pay interest in immediately available funds on overdue
principal and interest at the annual rate borne by the Securities compounded semiannually, which
interest shall accrue from the date such overdue amount was originally due to the day preceding the
date payment of such amount, including interest thereon, has been made or duly provided for. All
such interest shall be payable on demand.




     (c) Payment of the principal of and interest, if any, including Contingent Interest, if any,
on the Securities shall be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York (which shall initially be the Corporate Trust
Office of the Trustee) 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; provided, however, that at the
option of the Company payment of interest on any Certificated Securities having an aggregate
principal amount of $5,000,000 or less may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Register; provided
further that a Holder of a Certificated Security having an aggregate principal amount of more than
$5,000,000 will be paid by wire transfer in immediately available funds at the election of such
Holder if such Holder has provided wire transfer instructions to the Trustee at least 10 Business
Days prior to the payment date. Any wire transfer instructions received by the Trustee will remain
in effect until revoked by the Holder. In the case of a permanent Global Security, interest
including Contingent Interest, if any, payable on any applicable 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.



     Section 5.02. Reports by Company.



     (a) The Company shall deliver to the Trustee electronically (or otherwise in conformity with
Section 13.02), within 15 days after it files them with the SEC, copies of all annual reports,
quarterly reports and other documents that it files with the SEC pursuant to Sections 13 or 15(d)
of the Exchange Act. In the event the Company at any time is no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with the Trustee
all reports, if any, as may be required by the provisions of TIA Section 314(a).



     (b) Delivery of such reports 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 compliance by
the Company with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).



54









 





     Section 5.03. Compliance Certificates.



     The Company shall deliver to the Trustee, within one hundred twenty (120) days after the end
of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2008), an
Officer’s Certificate as to the signer’s knowledge of the Company’s compliance with all conditions
and covenants on its part contained in this Indenture and stating whether or not the signer knows
of any Default or Event of Default. If such signer knows of such a Default or Event of Default,
the Officer’s Certificate shall describe the Default or Event of Default and the efforts to remedy
the same. For the purposes of this Section 5.03, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this Indenture. Such
certificates need not comply with Section 13.04 of this Indenture.



     Section 5.04. Further Instruments and Acts.



     Upon request of the Trustee, or as 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.



     Section 5.05. Maintenance of Corporate Existence.



     Subject to Article 6, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence.



     Section 5.06. Rule 144A Information Requirement.



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



     Section 5.07. Stay, Extension And Usury Laws.



     The Company covenants (to the extent that they may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of or accrued but unpaid interest (including Contingent
Interest, if any) on the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this Indenture, and the
Company (to the extent it may lawfully do so) hereby expressly waives all



55









 




benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.




     Section 5.08. Payment of Additional Interest.



     If Additional Interest is payable by the Company pursuant to the Registration Rights
Agreement, the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating
(i) the amount of such Additional Interest that is payable, (ii) the reason why such Additional
Interest is payable and (iii) the date on which such Additional Interest is payable. Unless and
until a Trust Officer of the Trustee receives such a certificate, the Trustee may assume without
inquiry that no such Additional Interest is payable. If the Company has paid Additional Interest
directly to the Persons entitled to such Additional Interest, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.



     Section 5.09. Maintenance of Office or Agency.



     The Company shall maintain an office or agency where Securities may be presented or
surrendered for payment. The Company also will maintain an office or agency where Securities may
be surrendered for registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The office of the
Trustee, at its Corporate Trust Office, will be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more of such purposes.
The Company will give prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. If at any time the Company shall fail to maintain any
such required offices or agencies or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the 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 from time to time designate one or more other offices or agencies (in or
outside of 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 designation. The Company will give
prompt written notice to the Trustee of any such designation or rescission and any change in the
location of any such office or agency.



56









 





ARTICLE 6




CONSOLIDATION; MERGER; SALE OF ASSETS




     Section 6.01. Company May Consolidate, Etc., Only on Certain Terms.



     (a) The Company shall not consolidate with or merge with or into any other entity and the
Company shall not sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Company’s assets to any Person in a single transaction or series of
related transactions, unless:




     (1) either (A) the Company shall be the surviving Person or (B) the surviving entity
(if other than the Company) is a corporation or limited liability company organized and
validly existing under the laws of the United States of America or any State thereof
or the District of Columbia, and shall, in any such case, expressly assume by a
supplemental indenture, the due and punctual payment of the principal of, and interest on,
including Contingent Interest, if any, on all the Securities and the performance and
observance of every covenant of this Indenture to be performed or observed on the part of
the Company;




     (2) after giving effect to the transaction, no Default or Event of Default shall have
occurred and be continuing;




     (3) if the Company will not be the resulting or surviving Person, the Company shall
have, at or prior to the effective date of such consolidation or merger or sale, conveyance,
assignment, transfer, lease or other disposition, delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such consolidation, or merger or
sale, conveyance, assignment, transfer, lease or other disposition complies with this
Article 6.01 and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied with.



     Section 6.02. Successor Substituted.



     Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any sale, conveyance, assignment, transfer, lease or other disposition of all or substantially all
of the Company’s assets in accordance with Section 6.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.



57









 





ARTICLE 7




DEFAULT AND REMEDIES




     Section 7.01. Events of Default.



     (a) An “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):




     (1) a default by the Company in the payment of the principal amount, Redemption Price,
Repurchase Price or Fundamental Change Purchase Price with respect to any Security when such
payment becomes due and payable; or




     (2) a default by the Company for 30 days in the payment of any interest (including
Contingent Interest, if any) on the Securities; or




     (3) a failure by the Company for 15 days to convert any Securities into shares of
Common Stock and/or cash in accordance with this Indenture; or




     (4) failure by the Company to provide an Issuer Fundamental Change Notice within the
time required to provide such notice as set forth in Section 3.08(b) hereof; or




     (5) failure for 60 days after written notice from the Trustee or the Holders of at
least 25% in principal amount of the Securities then Outstanding has been received by the
Company to comply with any of the Company’s agreements in the Securities or this Indenture;
or




     (6) default by the Company or any of its Subsidiaries in the payment of principal or
interest on any mortgage, agreement or other instrument under which there may be
outstanding, or by which there may be secured or evidenced, any of the Company’s
indebtedness or indebtedness of the Company’s Subsidiaries for money borrowed in excess of
$5.0 million in the aggregate, whether such indebtedness exists or shall hereafter be
created, resulting in such indebtedness becoming or being declared due and payable, and such
acceleration shall not have been rescinded or annulled within 30 days after written notice
of such acceleration has been received by the Company or such Subsidiary, provided that if
any such default is cured, waived, rescinded or annulled, then the Event of Default by
reason thereof would not be deemed to have occurred;




     (7) failure by the Company or any of its Subsidiaries to pay final and non-appealable
judgments, the aggregate uninsured portion of which is at least $5.0 million, if the
judgments are not paid, discharged or fully bonded against within 60 days;




     (8) the Company or any Significant Subsidiary of the Company pursuant to or within the
meaning of any Bankruptcy Law:




     (A) commences a voluntary insolvency proceeding;



58









 






     (B) consents to the entry of an order for relief against it in an involuntary
insolvency proceeding or consents to its dissolution or winding-up;




     (C) consents to the appointment of a custodian of it or for any substantial
part of its property; or




     (D) makes a general assignment for the benefit of its creditors;




or takes any comparable action under any foreign laws relating to insolvency; provided,
however, that the liquidation of any Subsidiary into another Subsidiary, other than as part
of a credit reorganization, shall not constitute an Event of Default under this
Section 7.01(a)(8); or




     (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (A) is for relief against the Company or any Significant Subsidiary of the
Company in an involuntary insolvency proceeding;




     (B) appoints a custodian of the Company or any Significant Subsidiary of the
Company for any substantial part of their property;




     (C) orders the winding-up, liquidation or dissolution of the Company or any
Significant Subsidiary of the Company;




     (D) orders the presentation of any plan or arrangement, compromise or
reorganization of the Company or any Significant Subsidiary of the Company; or




     (E) grants any similar relief under any foreign laws;




     and in each such case the order or decree remains unstayed and in effect for 90 days.



     (b) Notwithstanding Section 7.01(a) no Event of Default under clause (5) of Section 7.01(a)
shall occur until the Trustee notifies the Company in writing, or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding notify the Company and the Trustee in
writing, of the Default (a “Notice of Default”), and the Company does not cure the Default within
the time specified in clause (5) of Section 7.01(a), or obtain a waiver, after receipt of such
notice. A notice given pursuant to this Section 7.01 shall be given by registered or certified
mail, must specify the Default, demand that it be remedied and state that the notice is a Notice of
Default. When any Default under this Section 7.01 is cured, it ceases.



     (c) The Company will deliver to the Trustee, within 30 days after becoming aware of the
occurrence of a Default or Event of Default, written notice thereof.



     Section 7.02. Acceleration.



     If an Event of Default (other than an Event of Default specified in clause (8) or (9) of
Section 7.01(a)) shall occur and be continuing with respect to this Indenture, the Trustee or the



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Holders of not less than 25% in aggregate principal amount of the Securities then Outstanding may,
and the Trustee at the request of such Holders shall, declare all unpaid principal of and accrued
interest, including Contingent Interest, if any, on all Securities through the date of such
declaration to be due and payable, by a notice in writing to the Company (and to the Trustee if
given by the Holders of the Securities). Upon any such declaration, such principal and
interest, including Contingent Interest, if any, shall become due and payable immediately. If an
Event of Default specified in clause (8) or (9) of Section 7.01(a) occurs and is continuing, then
all the Securities shall ipso facto become and be due and payable immediately in an amount equal to
the principal amount of the Securities, together with accrued and unpaid interest, if any,
including Contingent Interest, if any, to the date the Securities become due and payable, without
any declaration or other act on the part of the Trustee or any Holder. Thereupon, the Trustee may,
at its discretion, proceed to protect and enforce the rights of the Holders of the Securities by
appropriate judicial proceedings.




     After a declaration of acceleration with respect to the Securities, but 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 Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:



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




     (1) all sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,




     (2) all overdue interest, including overdue Contingent Interest, if any, on all
Outstanding Securities,




     (3) the principal of any Outstanding Securities which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the Securities,
and




     (4) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities;



     (b) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction; and



     (c) all Defaults or Events of Default, other than the non-payment of principal of and interest
on the Securities which have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 7.13. No such rescission shall affect any subsequent Default or
impair any right consequent thereon.



     Notwithstanding the foregoing, to the extent elected by the Company, the sole remedy for an
Event of Default relating to the failure by the Company to comply with the provisions of Section
5.02 of this Indenture and for any failure to comply with Section 314(a)(1) of the Trust Indenture
Act shall, for the first 365 days after the occurrence of such an Event of Default,



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consist exclusively of the right to receive special interest (“Special Interest”) on the Securities at an
annual rate equal to 0.50% of the principal amount of the Securities. Such Special Interest shall
be paid semi-annually in arrears, with the first semi-annual payment due on the first Interest
Payment Date following the date on which such Special Interest began to accrue on the
Securities. Special Interest shall accrue on all Outstanding Securities from and including
the date on which an Event of Default relating to a failure to comply with the provisions of
Section 5.02 or failure to comply with Section 314(a)(1) of the Trust Indenture Act shall first
occur to but not including the 365th day thereafter (or such earlier date on which such Event of
Default shall have been cured or waived). On such 365th day (or earlier, if the Event of Default
relating to the failure to comply with Section 5.02 and failure to comply with Section 314(a)(1) of
the Trust Indenture Act is cured or waived prior to such 365th day), such Special Interest shall
cease to accrue and, if the Event of Default relating to the failure to comply with Section 5.02
and failure to comply with Section 314(a)(1) of the Trust Indenture Act shall not have been cured
or waived prior to such 365th day, the Securities shall be subject to acceleration as provided in
this Section 7.02. The provisions of this paragraph shall not affect the rights of Holders in the
event of the occurrence of any other Event of Default. In the event the Company shall not elect to
pay Special Interest upon an Event of Default resulting from the failure of the Company to comply
with the provisions of Section 5.02 and for any failure by it to comply with Section 314(a)(1) of
the Trust Indenture Act, the Securities shall be subject to acceleration as provided above in this
Section 7.02.




     If the Company shall elect to pay Special Interest in connection with an Event of Default
relating to its failure to comply with the requirements of Section 5.02 and for any failure by it
to comply with Section 314(a)(1) of the Trust Indenture Act, (1) the Company shall notify all
Holders and the Trustee and Paying Agent of such election on or before the Close of Business on the
date on which such Event of Default shall first occur, and (2) all references herein to interest
accrued or payable as of any date shall include any Special Interest accrued or payable as of such
date as provided in this Section 7.02.



     Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if:



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



     (b) default is made in the payment of the principal of any Security at the Stated Maturity
thereof,


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 for principal and interest,
with interest upon the overdue principal and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate borne by the 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.




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     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.



     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders under this Indenture by such
appropriate private or judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper
remedy, subject however to Section 7.12. No recovery of any such judgment upon any property of the
Company shall affect or impair any rights, powers or remedies of the Trustee or the Holders.



     Section 7.04. Trustee May File Proofs of Claim.



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



     (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid
in respect of the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and



     (b) 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 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 the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07.




     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the 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.



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     Section 7.05. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.



     Section 7.06. Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article 7 or otherwise on behalf of the
Holders or the Trustee pursuant to this Article 7 or through any proceeding or any arrangement or
restructuring in anticipation or in lieu of any proceeding contemplated by this Article 7 and any
money or other property distributable in respect of the Company’s obligations under this Indenture
after an Event of Default shall be applied, subject to applicable law, in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such money on account of
principal or interest, upon presentation of the Securities and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due the Trustee (or any predecessor trustee) under
Section 8.07;



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



     THIRD: The balance, if any, to the Company.



     Section 7.07. Limitation on Suits.



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



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



     (b) 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;



     (c) such Holder or Holders have offered to the Trustee security or indemnity satisfactory to
the Trustee against any loss, liability or expense;



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     (d) the Trustee has failed to institute the proceeding and has not received direction
inconsistent with the original request from the Holders of a majority in principal amount of the
Outstanding Securities within 60 days after the original request;


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 or any Security to
affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this Indenture or any
Security, except in the manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.




     Section 7.08. Unconditional Right of Holders to Receive Payment and to Convert.



     Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of the principal amount, accrued and unpaid interest, if any, Contingent
Interest, if any, Redemption Price, Repurchase Price, Fundamental Change Purchase Price, Additional
Interest, if any, or Special Interest, if any, in respect of the Securities held by such Holder, on
or after the respective due dates expressed in the Securities and this Indenture (whether upon
repurchase or otherwise), and to convert such Security in accordance with Article 4, and to bring
suit for the enforcement of any such payment on or after such respective due dates or for the right
to convert in accordance with Article 4, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.



     Section 7.09. 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 the
Company, any other obligor on the Securities, the Trustee and the Holders shall, subject to any
determination in such proceeding, 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 7.10. Rights and Remedies Cumulative.



     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 7.11. 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 7 or by law to the Trustee or to the Holders may be exercised from



64









 




time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.




     Section 7.12. Control by Holders.



     The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, provided that:



     (a) such direction shall not be in conflict with any rule of law or with this Indenture,
expose the Trustee to personal liability or expenses for which the Trustee has not received
adequate indemnity as determined by it in good faith or be unduly prejudicial to Holders not
joining therein; and



     (b) subject to the provisions of Section 315 of the TIA, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.



     Section 7.13. Waiver of Past Defaults.



     Subject to Section 7.08, the Holders of a majority in aggregate principal amount of the
Securities then Outstanding by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except an uncured Default or Event of Default in the payment of the
principal of or any accrued but unpaid interest on any Security, an uncured failure by the Company
to convert any Securities into Common Stock and cash, as applicable, or any Default or Event of
Default in respect of any provision of this Indenture or the Securities which, under Section 10.02,
cannot be modified or amended without the consent of the Holder of each Security affected. When a
Default or Event of Default is waived, it is cured and ceases to exist.



     Section 7.14. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or interest on, any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of purchase pursuant to
Article 3 hereof, on the Fundamental Change Purchase Date).



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     Section 7.15. Remedies Subject to Applicable Law.



     All rights, remedies and powers provided by this Article 7 may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law in the premises, and all
the provisions of this Indenture are intended to be subject to all applicable mandatory provisions
of law which may be controlling in the premises and to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.



ARTICLE 8




TRUSTEE




     Section 8.01. Duties of Trustee.



     (a) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs;



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




     (1) the Trustee undertakes to perform those duties and only those duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




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



     (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:




     (1) this clause (c) does not limit the effect of clauses (b) or (d) of this Section
8.01;




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




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction of the Holders of a majority in principal
amount of Outstanding Securities relating to the time, method and place of



66









 




conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture;




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



     (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b), (c), (d) and (f) of this Section
8.01; and



     (f) The Trustee shall not be liable for interest on any money or assets received by it except
as the Trustee may agree in writing with the Company. Assets held in trust by the Trustee need not
be segregated from other assets except to the extent required by law.



     Section 8.02. Notice of Default.



     Within 90 days after the occurrence of any Default, the Trustee shall transmit by mail to all
Holders and any other Persons entitled to receive reports pursuant to Section 313(c) of the TIA, as
their names and addresses appear in the Security Register, notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of or interest on any
Security, the Trustee shall be protected in withholding such notice if and so long as a trust
committee of Trust Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.



     Section 8.03. Certain Rights of Trustee.



     Subject to the provisions of Section 8.01 hereof:



     (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting upon receipt by it of 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 may be
sufficiently evidenced by a Board Resolution;



     (c) the Trustee may consult with counsel of its selection and any 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;



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



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



     (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, approval, appraisal, bond, debenture, note, coupon, security or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may deem 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 Trust Officer of the Trustee 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 Trust Officer of the Trustee by the Issuer or by any Holder of
Securities;



     (i) 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, conclusively rely upon an Officer’s Certificate;



     (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 (including each
Agent), custodian and other Person employed to act hereunder;



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



     (l) the Trustee may request that the Company deliver an Officer’s 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



68









 




authorized to sign an Officers’ Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;




     (m) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or
advisers as it may reasonably require for the purpose of determining and discharging its rights and
duties hereunder and shall not be responsible for any misconduct or negligence on the part of any
of them selected by the Trustee using due care;



     (n) the Trustee shall not be required to give any note, bond or surety in respect of the
execution of the trusts and powers under this Indenture; and



     (o) the Trustee shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation , acts of God;,
earthquakes, fire, flood, terrorism, wars and other military disturbances, sabotage, epidemics,
riots, interruptions, losses or malfunctions of utilities, computers (hardware or software) or
communications services, labor disputes, acts of civil or military authorities and governmental
action.



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



     Section 8.04. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof.



     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 8.05. Trustee and Agents May Hold Securities; Collections; etc.



     The Trustee, any Paying Agent, Registrar, Conversion Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Securities, with the
same rights it would have if it were not the Trustee, Paying Agent, Registrar, Conversion Agent or
such other agent and, subject to TIA Sections 310 and 311, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same rights it would have
if it were not the Trustee, Paying Agent, Registrar, Conversion Agent or such other agent.



     Section 8.06. Money Held in Trust.



     All moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law.



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     Section 8.07. Compensation and Indemnification of Trustee and Its Prior Claim.



     The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the parties shall agree in writing from time to time for
all services rendered by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf of the Trustee in
accordance with any of the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all agents and other persons not regularly in
its employ) except any such expense, disbursement or advance as shall be determined to have been
caused by its own negligence, bad faith or willful misconduct. The Company also covenants and
agrees to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against,
any claim, damage, loss, liability, tax, assessment or other governmental charge (other than taxes
applicable to the Trustee’s compensation hereunder) or expense incurred without gross negligence or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the trusts hereunder and
its duties hereunder, including enforcement of this Section 8.07 and also including any liability
which the Trustee may incur as a result of failure to withhold, pay or report any tax, assessment
or other governmental charge, and the costs and expenses of defending itself against or
investigating any claim 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 8.07 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for reasonable expenses, disbursements and advances shall constitute an
additional obligation hereunder and, together with the lien referred in the next sentence, shall
survive the satisfaction and discharge, and termination for any reason, of this Indenture and the
resignation or removal of the Trustee and each predecessor Trustee. To secure the Company’s
obligations in this Section 8.07, the Trustee shall have a lien prior to the Securities on all
money and property held or collected by the Trustee, other than money or property held in trust for
the payment of principal of or interest on particular Securities.



     “Trustee” for purposes of this Section shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.



     Without prejudice to its other rights hereunder, when the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 7.01(a)(8) or Section
7.01(a)(9), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.



     Section 8.08. Conflicting Interests.



     The Trustee shall comply with the provisions of Section 310(b) of the TIA.



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     Section 8.09. Trustee Eligibility.



     There shall at all times be a Trustee hereunder which shall be eligible to act as trustee
under TIA Section 310(a) and which shall have a combined capital and surplus of at least
$50,000,000, to the extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may appoint an agent in
The City of New York reasonably acceptable to the Company to conduct any activities which the
Trustee may be required under this Indenture to conduct in The City of New York. If such Trustee
publishes reports of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with
the effect hereinafter specified in this Article 8.



     Section 8.10. Resignation and Removal; Appointment of Successor Trustee.



     (a) No resignation or removal of the Trustee and no appointment of a successor trustee
pursuant to this Article 8 shall become effective until the acceptance of appointment by the
successor trustee under Section 8.11.



     (b) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice thereof to the Company. Such resignation shall take effect upon the
appointment of a successor Trustee and the acceptance of such appointment by such successor
Trustee. If the instrument of acceptance by a successor Trustee required by Section 811 shall not
have been delivered to the Trustee within 30 days after the giving of such notice of resignation or
of any removal of the Trustee as hereinafter provided, the resigning or removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities.



     (c) The Trustee may be removed at any time for any cause or for no cause by an Act of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.



     (d) If at any time:




     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) 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,




     (2) the Trustee shall cease to be eligible under Section 8.09 and shall fail to resign
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




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



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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 case, (i) the Company may remove the Trustee, or (ii) subject to Section 7.14, the
Holder of any Security 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 removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.




     (e) If the Trustee shall be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, the Company shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section 8.11. If,
within 60 days after such removal or incapability, or the occurrence of such vacancy, the Company
has not appointed a successor Trustee, a successor trustee shall be appointed by the Act of the
Holders of a majority in principal amount of the Outstanding Securities delivered to the Company
and the retiring Trustee. Such successor trustee so appointed shall forthwith upon its acceptance
of such appointment become the successor trustee. If no successor trustee shall have been so
appointed by the Company or the Holders of the Securities and accepted appointment in the manner
hereinafter provided, the Trustee or the Holder of any Security who has been a bona fide Holder for
at least six months may, subject to Section 7.14, on behalf of himself and all others similarly
situated, petition at the expense of the Company 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 by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the register
of the Registrar. Each notice shall include the name of the successor trustee and the address of
its Corporate Trust Office or agent hereunder.



     Section 8.11. Acceptance of Appointment by Successor.



     (a) 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 as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee, upon payment of its
charges pursuant to Section 8.07 then unpaid, such retiring Trustee shall pay over to the successor
trustee all moneys at the time held by it hereunder, subject nevertheless to its lien provided for
in Section 8.07, and shall execute and deliver an instrument transferring to such successor trustee
all such rights, powers, trusts and duties. 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 and powers.



     (b) No successor trustee with respect to the Securities shall accept appointment as provided
in this Section 8.11 unless at the time of such acceptance such successor trustee shall be





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eligible to act as trustee under the provisions of TIA Section 310(a) and this Article 8 and
shall have a combined capital and surplus of at least $50,000,000 and have a Corporate Trust Office
or an agent selected in accordance with Section 8.09.




     (c) Upon acceptance of appointment by any successor trustee as provided in this Section 8.11,
the Company shall give notice thereof to the Holders of the Securities, by mailing such notice to
such Holders at their addresses as they shall appear on the Security Register. If the acceptance
of appointment is substantially contemporaneous with the appointment, then the notice called for by
the preceding sentence may be combined with the notice called for by Section 8.10. If the Company
fails to give such notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be given at the expense of the Company.



     Section 8.12. Merger, Conversion, Consolidation or Succession to Business.



     Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee (including the trust created by this Indenture) shall be the
successor of the Trustee hereunder, provided that such Person shall be eligible under TIA Section
310(a) and this Article 8 and shall have a combined capital and surplus of at least $50,000,000 and
have a Corporate Trust Office or an agent selected in accordance with Section 8.09, without the
execution or filing of any paper or any further act on the part of any of the parties hereto.



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



     Section 8.13. Preferential Collection of Claims Against Company.



     If and when the Trustee shall be or become a creditor of the Company (or other obligor under
the Securities), the Trustee shall be subject to the provisions of the TIA regarding the collection
of claims against the Company (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.



     Section 8.14. Reports By Trustee.



     (a) Within 60 days after May 15 of each year commencing with the first May 15 after the
issuance of Securities, the Trustee, if so required under the TIA, shall transmit by mail to all



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Holders, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as
of such May 15 in accordance with and with respect to the matters required by TIA Section
313(a). The Trustee shall also transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), a brief report in accordance with and with respect to the matters
required by TIA Section 313(b)(2).



     (b) A copy of each report transmitted to Holders pursuant to this Section 8.14 shall, at the
time of such transmission, be mailed to the Company and filed with each national securities
exchange, if any, upon which the Securities are listed and also with the SEC. The Company will
notify the Trustee promptly if the Securities are listed on any national securities exchange.



ARTICLE 9




SATISFACTION AND DISCHARGE OF INDENTURE




     Section 9.01. Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further force and effect (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein expressly provided
for and except as further provided below), 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 either:




     (1) all Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.08 and (ii) Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section 2.04) have been
delivered to the Trustee for cancellation; or




     (2) all such Securities not theretofore delivered to the Trustee for cancellation have
become due and payable, whether on the Final Maturity Date, any Redemption Date or Specified
Repurchase Date or a Fundamental Change Purchase Date, upon conversion or otherwise,




provided, that




     (i) the Company has deposited with the Trustee, a Paying Agent (other than the
Company or any of its Affiliates) or a Conversion Agent, if applicable, shares of
Common Stock and/or cash in trust for the purpose of and in an amount sufficient to
pay and discharge all indebtedness and obligations related to such Securities not
theretofore delivered to the Trustee for cancellation, for principal and interest
(including Additional Interest, if any, and Contingent Interest, if any) to the date
of such deposit and/or for the payment of amounts due upon conversion;




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



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     (iii) the Company has delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein relating to
the satisfaction and discharge of this Indenture have been complied with.



     (b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company with respect to the Trustee under Section 8.07 and, if money shall have been deposited with
the Trustee pursuant to clause (2) of Section 9.01(a), the provisions of Sections 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.13 and 5.01 and this Article 9 shall survive such satisfaction and discharge
until the Securities have been paid in full.



     Section 9.02. Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 2.04, all United States dollars
deposited with the Trustee pursuant to Section 9.01 shall 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 of and interest on, the
Securities for whose payment such United States dollars have been deposited with the Trustee.



     Section 9.03. Reinstatement.



     If the Trustee, any Paying Agent or any Conversion Agent is unable to apply any money in
accordance with Section 9.02 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 9.01 until such time
as the Trustee, such Paying Agent or such Conversion Agent is permitted to apply all such money in
accordance with Section 9.02; provided, however, that if the Company has made any payment of the
principal of or interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive any such
payment from the money held by the Trustee, such Paying Agent or such Conversion Agent.



ARTICLE 10




AMENDMENTS; SUPPLEMENTS AND WAIVERS




     Section 10.01. Without Consent of Holders.



     (a) The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Holder of a Security for the purpose of:




     (1) evidencing the succession of another corporation to the Company and the assumption
by that successor corporation of the Company’s obligations under this Indenture and the
Securities;



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     (2) adding to the covenants of the Company or add any rights for the benefit of the
Holders or surrendering any right or power conferred upon the Company;




     (3) securing the obligations of the Company in respect of the Securities;




     (4) evidencing and providing for the acceptance of the appointment of a successor
trustee in accordance with Article 8;




     (5) complying with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, as contemplated by this Indenture or
otherwise;




     (6) providing for conversion rights of Holders if any reclassification or change of
Common Stock or any consolidation, merger or sale of all or substantially all of the
Company’s property and assets occurs or otherwise complying with the provisions of this
Indenture in the event of a merger, consolidation or transfer of assets (including the
provisions of Section 4.10 and Article 6);




     (7) establishing the forms or terms of the Securities;




     (8) curing any ambiguity, omission, defect or inconsistency in the Indenture,
correcting or supplementing any provision in the Indenture, or making any other provisions
with respect to matters or questions arising under the Indenture, so long as the interests
of Holders of Securities are not adversely affected in any material respect under this
Indenture, provided that such amendment made solely to conform the provisions of the
Indenture to the corresponding description of the Securities contained in the applicable
offering memorandum shall be deemed to not adversely affect the interests of the Holders;




     (9) making any change that will not adversely affect the rights of the Holders in any
material respect.



     Section 10.02. With Consent of Holders.



     (a) The Company and the Trustee may amend or supplement this Indenture and the Securities with
the consent of the Holders of at least a majority in aggregate principal amount of the Outstanding
Securities. However, without the written consent of each Holder affected, an amendment or
supplement may not:




     (1) change the Stated Maturity of any payment of principal of or any installment of
interest on any Security (including the payment of Contingent Interest, if any);




     (2) reduce the principal amount of Securities or alter the manner or rate of accrual of
interest (including Contingent Interest) on the Securities;




     (3) reduce Redemption Price, Repurchase Price or Fundamental Change Purchase Price
payable with respect to any of the Securities;



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     (4) change the Company’s obligation to redeem any Security on a Redemption Date in a
manner adverse to such Holder;




     (5) change the Company’s obligation to repurchase any Security at the option of a
Holder in manner adverse to such Holder;




     (6) change the Company’s obligation to repurchase any Security upon a Fundamental
Change in a manner adverse to such Holder;




     (7) change the currency of payment of principal or interest (including the payment of
Contingent Interest), if any, in respect of any Securities;




     (8) impair the right of a Holder to convert any Security or reduce the number of shares
of Common Stock or any other property receivable upon conversion;




     (9) make any change in the amendment provisions of this Indenture which require each
Holder’s consent or change in the waiver provisions of this Indenture; or




     (10) impair the right to institute suit for the enforcement of any payment on or with
respect to any Security.



     (b) Without limiting the provisions of Section 10.02(a) hereof, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, on behalf of all the Holders of
all Securities, (i) waive compliance by the Company with the restrictive provisions of this
Indenture, and (ii) waive any past Default or Event of Default under this Indenture and its
consequences, except an uncured failure to pay any amounts due or to deliver amounts due upon
conversion, with respect to the Securities, or in respect of any provision which under this
Indenture cannot be modified or amended without the consent of the Holder of each outstanding
Security affected.



     (c) Upon delivery to the Trustee of a Company Request, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, if required, the Trustee shall, subject to Section
10.03, join with the Company in the execution of such supplemental indenture.



     (d) It shall not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture but it shall be sufficient if such Act shall
approve the substance thereof.



     Section 10.03. Execution of Supplemental Indentures and Agreements.



     In executing, or accepting the additional trusts created by, any supplemental indenture,
agreement, instrument or waiver permitted by this Article 10 or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, in addition to the documents
required by Section 13.04, and (subject to Section 8.01 and Section 8.03(a) hereof) shall be fully
protected in relying upon, an Opinion of Counsel and an Officer’s Certificate each stating that the
execution of such supplemental indenture, agreement or instrument, or acceptance of any such
additional trust, is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement or instrument, or accept



77









 







any such additional trusts, which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.



     Section 10.04. Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article 10, 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.



     Section 10.05. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article 10 shall conform to the
requirements of the TIA as then in effect.



     Section 10.06. Reference in Securities to Supplemental Indentures.



     Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 10 may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, 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.



     Section 10.07. Notice of Supplemental Indentures.



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.02, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section 13.02, setting forth
in general terms the substance of such supplemental indenture. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.



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ARTICLE 11




CONTINGENT INTEREST




     Section 11.01. Contingent Interest. Additional interest (“Contingent Interest”) will
accrue on each Security during any six-month period from January 15 to July 14 and from July 15 to
January 14 (an “Interest Period”), commencing after January 14, 2013, if the average Market Price
of the Securities for the five Trading Days ending on the third Trading Day immediately preceding
the first day of the applicable Interest Period (the “Applicable Five-Day Trading Period”) equals
120% or more of the principal amount of the Securities. If Contingent Interest accrues during an
Interest Period pursuant to the preceding sentence, the amount of Contingent Interest payable with
respect to such Interest Period per $1,000 principal amount of Securities shall equal 0.25% of the
average Market Price during the Applicable Five-Day Trading Period with respect to such Interest
Period.



     The “Market Price” of any Security on any date of determination means the average of the
secondary market bid quotations per Security obtained by the Bid Calculation Agent for $5,000,000
aggregate principal amount of Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent, nationally recognized securities dealers the Company
selects, provided that if:




(a) at least three such bids are not obtained by the Bid Calculation Agent, or




(b) in the Company’s reasonable judgment, the bid quotations are not indicative of the
secondary market value of the Securities,




then the Market Price of the Securities will equal the average of the Daily
Conversion Values for each of the five Trading Days ending on such determination date,
appropriately adjusted.



     The “Bid Calculation Agent” means such Person as the Company may designate as the Bid
Calculation Agent from time to time, and will initially be the Trustee.



     The “Daily Conversion Value” means, with respect to any Trading Day, for each $1,000 principal
amount of Securities, an amount equal to the product of (i) the applicable Daily Conversion Rate
and (ii) the Volume Weighted Average Price per share of Common Stock on such Trading Day.



     The Trustee’s sole responsibility pursuant to this Section 11.01 shall be to obtain the Market
Price of the Securities for each Trading Day during the Applicable Five-Day Trading Period and to
provide such information to the Company, to the extent that the Trustee is then the Bid Calculation
Agent. The Company shall determine whether holders are entitled to receive Contingent Interest,
and if so, provide notice pursuant to Section 11.03. Notwithstanding any term contained in this
Indenture or any other document to the contrary, the Trustee shall have no responsibilities, duties
or obligations for or with respect to (i) determining whether the Company must pay Contingent
Interest or (ii) determining the amount of Contingent Interest, if any, payable by the Company.



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     Section 11.02. Payment of Contingent Interest. Contingent Interest for any Interest
Period shall be paid on the Interest Payment Date immediately following the relevant six-month
period to the Person in whose name any Security is registered on the Security Register at the Close
of Business on the corresponding Regular Record Date. Contingent Interest due under this Article
11 shall be treated for all purposes of this Indenture like any other interest accruing on the
Securities.



     Section 11.03. Contingent Interest Notification. Promptly upon determination that
Securityholders will be entitled to receive Contingent Interest during an Interest Period, the
Company will disseminate a press release through Dow Jones & Company, Inc. or Bloomberg Business
News stating that Contingent Interest will be paid on the Securities and identifying the Interest
Period or otherwise publicly disclose this information and use its reasonable efforts to post such
information on its Web site.



ARTICLE 12




SUBORDINATION




     Section 12.01. Agreement to Subordinate.



     The Company agrees, and each Holder by accepting a Security agrees, that the Indebtedness,
interest and other obligations of any kind evidenced by the Securities and this Indenture are
subordinated in right of payment, to the extent and in the manner provided in this Article 12, to
the prior payment in full in cash or cash equivalents of all Senior Indebtedness (whether
outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness.



     Section 12.02. Liquidation; Dissolution; Bankruptcy.



     In the event of any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relating
to the Company or to its assets, or any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary, or any assignment for the benefit of creditors or other
marshaling of assets or liabilities of the Company (except in connection with the consolidation or
merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease
of all or substantially all of its properties and assets upon the terms and conditions described in
Article 6), the holders of Senior Indebtedness will be entitled to receive payment in full in cash
or cash equivalents of all Senior Indebtedness, or provision shall be made for such payment in
full, before the Holders will be entitled to receive any payment or distribution of any kind or
character (other than Permitted Junior Securities) on account of principal of or interest on the
Securities; and any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or distribution in the form of
Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee would be
entitled but for the provisions of this Article 12 shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives ratably according to the aggregate



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amounts remaining unpaid on account of the Senior Indebtedness to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.



     Section 12.03. Default on Designated Senior Indebtedness.



          (a) No payment or distribution of any assets of the Company of any kind or character, whether
in cash, property or securities (other than Permitted Junior Securities), may be made by or on
behalf of the Company on account of principal of or interest on the Securities or on account of the
purchase, redemption or other acquisition of Securities upon the occurrence of any default in
payment (whether at scheduled maturity, upon scheduled installment, by acceleration or otherwise)
of principal of or interest on Designated Senior Indebtedness beyond any applicable grace period (a
“Payment Default”) until such Payment Default shall have been cured or waived in writing or shall
have ceased to exist or such Designated Senior Indebtedness shall have been discharged or paid in
full in cash or cash equivalents.




          (b) No payment or distribution of any assets of the Company of any kind or character, whether
in cash, property or securities (other than Permitted Junior Securities), may be made by or on
behalf of the Company on account of principal of or interest on the Securities or on account of the
purchase, redemption or other acquisition of Securities for the period specified below (a “Payment
Blockage Period”) upon the occurrence of any default or event of default with respect to any
Designated Senior Indebtedness other than any Payment Default pursuant to which the maturity of
such Designated Senior Indebtedness may be accelerated (a “Non-Payment Default”) and receipt by the
Trustee of written notice thereof from the Company or the trustee or other representative of
holders of Designated Senior Indebtedness.




          (c) The Payment Blockage Period shall commence upon the date of receipt by the Trustee of
written notice from the Company or such other representative of the holders of the Designated
Senior Indebtedness in respect of which the Non-Payment Default exists and shall end on the
earliest of:





     (i) 179 days thereafter (provided that any Designated Senior Indebtedness as to which
notice was given shall not theretofore have been accelerated);




     (ii) the date on which such Non-Payment Default is cured, waived or ceases to exist;




     (iii) the date on which such Designated Senior Indebtedness is discharged or paid in
full; or




     (iv) the date on which such Payment Blockage Period shall have been terminated by
written notice to the Trustee or the Company from the trustee or such other representative
initiating such Payment Blockage Period,


after which the Company shall resume making any and all required payments in respect of the
Securities, including any missed payments. In any event, not more than one Payment Blockage Period
may be commenced during any period of 365 consecutive days. No Non-Payment Default that existed or
was continuing on the date of the commencement of any Payment


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Blockage Period will be, or can be made, the basis for the commencement of a subsequent Payment
Blockage Period, unless such Non-Payment Default has been cured or waived for a period of not less
than 90 consecutive days subsequent to the commencement of such initial Payment Blockage Period.




     Section 12.04. Acceleration of Notes.



     If payment of the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Indebtedness of the acceleration.



     Section 12.05. When Distribution Must Be Paid Over.



          (a) In the event that, notwithstanding the provisions of Sections 12.02 and 12.03, any payment
or distribution of any kind or character, whether in cash, property or securities, shall be
received by the Trustee or any Holder which is prohibited by such provisions, then and in such
event such payment shall be held in trust for the benefit of, and shall be paid over and delivered
by such Trustee or Holder to, the trustee or any other representative of holders of Senior
Indebtedness, as their interest may appear, for application to Senior Indebtedness remaining unpaid
until all such Senior Indebtedness has been paid in full in cash or cash equivalents after giving
effect to any concurrent distribution to or for the holders of Senior Indebtedness. Until all of
the Company’s Senior Indebtedness is paid in full, Holders shall be subordinated (equally and
ratably with all other indebtedness that is equal in right of payment to the Securities) to the
rights of holders of Senior Indebtedness to receive distributions.




          (b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform only
such obligations on the part of the Trustee as are specifically set forth in this Article 12, and
no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company or any other Person
money or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 12, except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.




     Section 12.06. Notice by the Company.



     The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Failure to give such notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in Section 13.02 from
the Company or a holder of Senior Indebtedness or from any trustee or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions of Section 8.01,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if a Trust Officer of the Trustee shall not have received, at least three
Business



82









 







Days prior to the date upon which by the terms hereof any such money may become payable for
any purpose (including, without limitation, the payment of the principal amount, Redemption
Price, Repurchase Price, Fundamental Change Purchase Price or interest (including Contingent
Interest and Special Interest), if any, as the case may be, in respect of any Security), the notice
with respect to such money provided for in this Section 12.06, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within three Business Days prior to such
date.



     Subject to the provisions of Section 8.01, the Trustee shall be entitled to conclusively rely
on the delivery to it of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment which it may be required to make for the
benefit of such person pursuant to the terms of this Indenture pending judicial determination as to
the rights of such person to receive such payment.



     Section 12.07. Subrogation.



     After all Senior Indebtedness is paid in full and until the Securities are paid in full,
Holders shall be subrogated (equally and ratably with all other Indebtedness that is equal in right
of payment to the Securities) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions otherwise payable
to the Holders have been applied to the payment of Senior Indebtedness. A distribution made under
this Article 12 to holders of Senior Indebtedness that otherwise would have been made to Holders is
not, as between the Company and Holders, a payment by the Company of the Securities.



     Section 12.08. Relative Rights.



     This Article 12 defines the relative rights of Holders and holders of Senior Indebtedness.
Nothing in this Indenture shall: (i) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and interest on the
Securities in accordance with their terms; (ii) affect the relative rights of Holders and creditors
of the Company other than their rights in relation to holders of Senior Indebtedness; or (iii)
prevent the Trustee or any Holder from exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders of Securities. If the Company fails
because of this Article 12 to pay principal of or interest on a Security on the date on which such
payment is otherwise due and payable, the failure is still a Default or Event of Default.



83









 





     Section 12.09. Subordination May Not Be Impaired by the Company.



          (a) No right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the
Company or any Holder or by the failure of the Company or any Holder to comply with this Indenture.




          (b) Without in any way limiting the generality of this Section 12.09, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders, without incurring responsibility to the Trustee or the Holders and without
impairing or releasing the subordination provided in this Article 12 or the obligations hereunder
of the Holders to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (ii) sell, exchange, release, foreclose against or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company, any Subsidiary thereof or any
other Person.




     Section 12.10. Distribution or Notice to Representative.



          (a) Whenever a distribution is to be made or a notice given to holders of any Senior
Indebtedness, the distribution may be made and the notice given to their representative.




          (b) Upon any payment or distribution of assets of the Company referred to in this Article 12,
the Trustee and the Holders of Securities shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction or upon any certificate of such representative(s) or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in such distribution,
all holders of the Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.




     Section 12.11. Rights of Trustee and Paying Agent.



          (a) Notwithstanding the provisions of this Article 12 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment or distribution by the Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Securities, unless a Trust Officer of the Trustee shall
have received at its Corporate Trust Office at least three Business Days prior to the date of such
payment written notice of facts that would cause the payment of any obligations with respect to the
Securities to violate this Article 12. Only the Company or its duly authorized representative may
give the notice. Nothing in this Article 12 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 8.07.




84









 








          (b) The Trustee in its individual or any other capacity may hold Senior Indebtedness with the
same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or
distribute to the Holders or to the Company or to any other person cash, property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.




     Section 12.12. Anti-layering.



     The Company shall not, and shall not permit its subsidiaries or other business units to,
incur, create, assume, guarantee or in any other manner become directly or indirectly liable with
respect to or responsible for, or permit to remain outstanding (other than if required by law), any
indebtedness that is subordinate or junior in right of payment to Senior Indebtedness unless such
indebtedness ranks equal or junior in right of payment to the Securities.



     Section 12.13. Reliance on Judicial Order or Certificate of Liquidating Agent.



     The Trustee, subject to the provisions of Section 8.01, and the Holders of the Securities
shall be entitled to conclusively rely upon (i) any order or decree entered by any court of
competent jurisdiction in which an insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or a similar case or proceeding is pending, or (ii) any
certificate of a trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the
benefit of creditors, agent or other person making payment or distribution in such case or
proceeding, delivered to the Trustee or to the Holders of Securities for the purpose of
ascertaining any person entitled to participate in any payment or distribution, the amounts to be
paid or distributed and all other facts pertinent thereto or to this Article.



ARTICLE 13




MISCELLANEOUS




     Section 13.01. Conflict with Trust Indenture Act.



     If any provision hereof limits, qualifies or conflicts with any provision of the TIA or
another provision which is required or deemed to be included in this Indenture by any of the
provisions of the TIA, the provision or requirement of the TIA shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA 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 13.02. Notices.



     Any demand, authorization notice, request, consent or communication shall be given in writing
and mailed by first-class mail, postage prepaid, or delivered by recognized overnight



85









 







courier addressed as follows or transmitted by facsimile transmission (confirmed by delivery
in person or mail by first-class mail, postage prepaid, or by guaranteed overnight courier) to the
following facsimile numbers:


If to the Company, to:



OSI Pharmaceuticals, Inc.

41 Pinelawn Road

Melville, NY 11747

Attention: General Counsel

Facsimile No.: (631) 752-3869



and to



OSI Pharmaceuticals, Inc.

41 Pinelawn Road

Melville, NY 11747

Attention: Chief Financial Officer

Facsimile No.: (631) 752-3869



or at any other address previously furnished in writing to the Trustee by the Company,



if to the Trustee, to:



The Bank of New York

101 Barclay Street, Fl. 8W

New York, New York 10286

Attention: Corporate Trust Administration

Facsimile No.: (212) 815-5704





or at any other address previously furnished in writing to the Holders or the Company or any
other obligor on the Securities by the Trustee.




Such notices or communications shall be effective only when actually received.



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



     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, or delivered by recognized overnight courier, to each Holder affected
by such event, at its address as it appears in the register kept by the Primary Registrar, not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice or by any other manner deemed acceptable to the Trustee. 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. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed
to have been received by such Holder whether or not actually received by such Holder. Where this



86









 







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 mail notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.



     If the Company mails any notice to a Holder of a Security, it shall mail a copy to the Trustee
and each Registrar, Paying Agent and Conversion Agent.



     Section 13.03. Disclosure of Names and Addresses of Holders.



     Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities, and the Trustee shall comply with TIA Section
312(b). The Company, the Trustee, the Registrar and any other Person shall have the protection of
TIA 312(c). Further, every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312.



     Section 13.04. Compliance Certificates and Opinions.



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



     (b) Every certificate or Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Indenture shall include:




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




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



87









 






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




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



     Section 13.05. Acts of Holders.



     (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 an 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 conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section 13.05.



     (b) The ownership of Securities shall be proved by the register maintained by the Primary
Registrar.



     (c) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent or Conversion Agent,
or the Company or any other obligor of the Securities in reliance thereon, whether or not notation
of such action is made upon such Security.



     (d) 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 deems sufficient.



     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of such Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), any such record
date shall be the record date specified in or pursuant to such Board Resolution, which



88









 







shall be a date not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is completed.



     (f) If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of
record at the Close of Business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after such record date.



     (g) For purposes of this Indenture, any action by the Holders which may be taken in writing
may be taken by electronic means or as otherwise reasonably acceptable to the Trustee.



     Section 13.06. 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 successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 13.07. Legal Holidays.



     In any case where any Interest Payment Date, Redemption Date, Repurchase Date, Fundamental
Change Purchase Date or Final Maturity Date of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on such Interest Payment Date, Redemption Date, Repurchase
Date, Fundamental Change Purchase Date or Final Maturity Date, and no interest shall accrue with
respect to such payment for the period from and after such Interest Payment Date, Redemption Date,
Repurchase Date, Fundamental Change Purchase Date or Final Maturity Date, as the case may be, to
the next succeeding Business Day.



     Section 13.08. Governing Law; Waiver of Trial by Jury.



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



     EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE.



89









 





     Section 13.09. No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.



     Section 13.10. No Personal Liability of Directors, Officers, Employees and
Stockholders.



     No director, officer, employee, stockholder, incorporator or agent of the Company will have
any liability for any obligations of the Company under the Securities, the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
the Securities by accepting a Security waives and releases all such liability.



     Section 13.11. Successors and Assigns.



     All covenants and agreements in this Indenture by the parties hereto shall bind their
respective successors and assigns, whether so expressed or not.



     Section 13.12. Multiple Counterparts.



     The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent the same agreement.



     Section 13.13. 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 13.14. Schedules and Exhibits.



     All schedules and exhibits attached hereto are by this reference made a part hereof with the
same effect as if herein set forth in full.



     Section 13.15. 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.



[SIGNATURE PAGES FOLLOW]




90









 








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



	 	 	 	 	 
	 	OSI PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF NEW YORK, as Trustee

 	 
	 	By:  	/s/ 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit A




[FORM OF FACE OF SECURITY]



UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.1



THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.2



BY ITS ACQUISITION HEREOF, THE HOLDER (1) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE EARLIER OF (X) THE DATE WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) THE DATE WHEN HOLDERS, OTHER THAN HOLDERS
THAT ARE THE COMPANY’S AFFILIATES, OF THE SECURITIES AND THE COMMON






 




			
	1	 	This paragraph should be included only if the Security
is a Global Security.
	 
	2	 	This paragraph should be included only if the Security
is a Restricted Security.






 












 




STOCK ISSUABLE UPON CONVERSION OF THE SECURITIES ARE ABLE TO SELL SUCH SECURITIES IMMEDIATELY
WITHOUT RESTRICTION PURSUANT TO THE PROVISIONS OF RULE 144 UNDER THE SECURITIES ACT OR ANY
SUCCESSOR RULE THERETO (THE “RESALE RESTRICTION TERMINATION DATE”), IN EACH CASE ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.3



THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. PURSUANT TO SECTION 2.18 OF THE INDENTURE, THE COMPANY AGREES, AND BY ACCEPTANCE OF A
BENEFICIAL OWNERSHIP INTEREST IN THE SECURITIES EACH BENEFICIAL HOLDER OF A SECURITY AGREES (IN THE
ABSENCE OF AN ADMINISTRATIVE PRONOUNCEMENT OR JUDICIAL RULING TO THE CONTRARY), FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES, (I) TO TREAT THE SECURITIES AS INDEBTEDNESS OF THE COMPANY SUBJECT TO
UNITED STATES TREASURY REGULATIONS SECTION 1.1275-4 (THE “CONTINGENT DEBT REGULATIONS”) AND, FOR
PURPOSES OF THE CONTINGENT DEBT REGULATIONS, TO TREAT CASH AND THE FAIR MARKET VALUE OF ANY COMMON
STOCK BENEFICIALLY RECEIVED UPON CONVERSION AS A CONTINGENT PAYMENT, (II) TO BE BOUND BY THE
COMPANY’S APPLICATION OF THE CONTINGENT DEBT REGULATIONS, INCLUDING THE COMPANY’S DETERMINATION OF
THE “COMPARABLE YIELD” AND “PROJECTED PAYMENT SCHEDULE,” WITHIN THE MEANING OF THE CONTINGENT DEBT
REGULATIONS, WITH RESPECT TO SUCH HOLDER’S SECURITIES AND (III) TO USE SUCH “COMPARABLE YIELD” AND
“PROJECTED PAYMENT SCHEDULE” IN DETERMINING INTEREST ACCRUALS WITH RESPECT TO SUCH HOLDER’S
SECURITIES AND IN DETERMINING ADJUSTMENTS THERETO. A HOLDER OF SECURITIES MAY OBTAIN THE ISSUE
PRICE, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND THE PROJECTED PAYMENT SCHEDULE BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: OSI






 




			
	3	 	This paragraph should be included only if the Security
is a Restricted Security.





 









 




PHARMACEUTICALS, INC., 41 PINELAWN ROAD, MELVILLE, NY 11747, ATTENTION: CHIEF FINANCIAL
OFFICER.4




OSI Pharmaceuticals, Inc.




3% Convertible Senior Subordinated Notes due 2038




	 	 	 
	No. R-          

	 	CUSIP: [671040 AG8]






     OSI Pharmaceuticals, Inc., a Delaware corporation, promises to pay to Cede & Co. or registered
assigns the principal sum as set forth in the “Schedule of Exchanges of Securities” attached
hereto, which shall not exceed TWO HUNDRED MILLION DOLLARS ($200,000,000) on January 15, 2038.



     This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.



     Additional provisions of this Security are set forth on the other side of this Security.





 




			
	4	 	This paragraph should be included for ALL Securities.





 









 





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



	 	 	 	 	 
	 	 	OSI PHARMACEUTICALS, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






	 	 	 	 	 
	Dated:	 	 
	 
	 	 	 	 
	Trustee’s Certificate of Authentication:	 	 
	 
	 	 	 	 
	This is one of the Securities referred to in	 	 
	the within-mentioned Indenture.	 	 
	 
	 	 	 	 
	THE BANK OF NEW YORK, as Trustee	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Signatory	 	 






 









 





[FORM OF REVERSE SIDE OF SECURITY]




OSI Pharmaceuticals, Inc.




3% Convertible Senior Subordinated Notes due 2038




     1. Interest



     OSI Pharmaceuticals, Inc., a Delaware corporation (the “Company”, which term shall include any
successor company under the Indenture hereinafter referred to), promises to pay interest on the
principal amount of this Security at the rate of 3% per annum. The Company shall pay interest
semiannually on January 15 and July 15 of each year (each an “Interest Payment Date”), commencing
July 15, 2008. Interest payable on any Interest Payment Date shall include interest accrued from
and including the immediately preceding Interest Payment Date (or if none, from and including
January 9, 2008) to but excluding the relevant Interest Payment Date. Cash interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months. Any payment required to
be made on a day that is not a Business Day shall be made on the next succeeding Business Day with
the same force and effect as if made on such day and without any interest in respect of the delay.
The Company shall, to the fullest extent permitted by law, pay interest in immediately available
funds on overdue principal and interest at the rate of 3% per annum, compounded semiannually, which
interest shall accrue from the date such overdue amount was originally due to the day preceding the
date payment of such amount, including interest thereon, has been made or duly provided for.



     Any reference herein to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable on such date as provided in the Registration Rights
Agreement, any Special Interest that may be payable in accordance with the provisions of Section
7.02 and any Contingent Interest that may be payable as provided herein.



     2. Method of Payment



     The Company shall pay interest on this Security (except defaulted interest) to the Person who
is the Holder of this Security at the Close of Business on January 1 or July 1, as the case may be
(each, a “Regular Record Date”) next preceding the related Interest Payment Date. The Holder must
surrender this Security to a Paying Agent to collect payment of principal. The Company will pay
principal and interest in money of the United States that at the time of payment is legal tender
for payment of public and private debts.



     3. Paying Agent, Registrar and Conversion Agent



     Initially, The Bank of New York (the “Trustee”, which term shall include any successor trustee
under the Indenture hereinafter referred to) will act as Paying Agent, Registrar and Conversion
Agent. The Company may change any Paying Agent, Registrar or Conversion Agent without notice to
the Holders. The Company or any of its Affiliates may, subject to certain limitations set forth in
the Indenture, act as Paying Agent.



 









 





     4. Indenture



     This Security is one of a duly authorized issue of Securities of the Company designated as its
3% Convertible Senior Subordinated Notes Due 2038 (the “Securities”), issued under an Indenture,
dated as of January 9, 2008 (together with any supplemental indentures thereto, the “Indenture”),
between the Company named therein and the Trustee. The terms of this Security include those stated
in the Indenture and those required by or made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the “TIA”), as in effect on the date of the Indenture. This
Security is subject to all such terms, and the Holder of this Security is referred to the Indenture
and the TIA for a statement of them. The Securities are limited to $200,000,000 aggregate
principal amount. The Indenture does not limit other debt of the Company, secured or unsecured.



     Capitalized terms not otherwise defined herein have the meaning ascribed to such terms in the
Indenture.



     5. Redemption



     At any time on or after January 15, 2013 and prior to maturity, the Securities may be redeemed
at the option of the Company, in whole or in part, in cash upon mailing a notice of such redemption
not less than 30 days but not more than 60 days before the Redemption Date to the holders of
Securities at their last registered addresses, all as provided in the Indenture, at a Redemption
Price equal to 100% of the principal amount of Securities being redeemed, plus accrued and unpaid
interest, if any, including Contingent Interest, if any, to, but not including, the Redemption
Date; provided that if the Redemption Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, the Redemption Price shall be 100% of the principal amount of
the Securities redeemed but shall not include accrued and unpaid interest, including Contingent
Interest, if any. Instead, the Company shall pay such accrued and unpaid interest, including
Contingent Interest, if any, on the Interest Payment Date, to the Holder of record at the Close of
Business on the corresponding Regular Record Date.



     6. Purchase of Securities at Option of Holder on Specified Dates



     On each of January 15, 2013, January 15, 2018 and January 15, 2023, January 15, 2028 and
January 15, 2033 (each, a “Specified Repurchase Date”), each Holder shall have the option to
require the Company to repurchase Securities for which that Holder has properly delivered and not
withdrawn a written repurchase notice, all as provided in the Indenture, at a repurchase price in
cash equal to 100% of the principal amount of those Securities, plus accrued and unpaid interest,
including Contingent Interest, if any, on those Securities, to, but not including, such Specified
Repurchase Date (the “Repurchase Price”); provided that if the Specified Repurchase Date is on a
date that is after a Regular Record Date and on or prior to the corresponding Interest Payment
Date, the Repurchase Price shall be 100% of the principal amount of the Securities repurchased but
shall not include accrued and unpaid interest, including Contingent Interest, if any. Instead, the
Company shall pay such accrued and unpaid interest, Contingent Interest, if any, on the Interest
Payment Date, to the Holder of record at the Close of Business on the corresponding Regular Record
Date.



 









 





     7. Purchase of Securities at Option of Holder Upon a Fundamental Change



     Upon a Fundamental Change, at the option of the Holder and subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase for cash all or any part specified
by the Holder (so long as the principal amount of such part is $1,000 or an integral multiple of
$1,000) of the Securities held by such Holder on the date specified by the Company in accordance
with the provisions of Article 3 of the Indenture.



     8. Conversion



     Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, the Holder may surrender for conversion all or any portion
of this Security that is in an integral multiple of $1,000. Upon conversion, the Holder shall be
entitled to receive the consideration specified in the Indenture. No fractional share of Common
Stock shall be issued upon conversion of a Security. Instead, the Company shall pay a cash
adjustment as provided in the Indenture. The initial Base Conversion Rate of the Securities shall
be 13.5463 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment
in accordance with the provisions of Article 4 of the Indenture. If a Holder converts all or any
portion of this Security in connection with the occurrence of certain Fundamental Change
transactions, the Base Conversion Rate shall be increased in the manner and to the extent described
in Section 4.01(j) of the Indenture.



     Securities surrendered for conversion (in whole or in part) during the period from the Close
of Business on any Regular Record Date to the opening of business on the next succeeding Interest
Payment Date shall be accompanied by payment by the Holders of such Securities in funds to the
Conversion Agent acceptable to the Company of an amount equal to the interest payable on such
corresponding Interest Payment Date; provided that no such payment need be made: (1) if the Company
has called the Securities for redemption on a Redemption Date that falls after a Regular Record
Date for an Interest Payment Date and on or prior to the corresponding Interest Payment Date; (2)
in connection with a conversion following the Regular Record Date preceding the Final Maturity
Date; (3) if the Company has specified a Fundamental Change Purchase Date that is after a Regular
Record Date and on or prior to the corresponding Interest Payment Date; or (4) to the extent of any
overdue interest, if any overdue interest exists at the time of conversion with respect to such
Security.



     A Security in respect of which a Holder has submitted a Fundamental Change Purchase Notice may
be converted only if such Holder validly withdraws such Fundamental Change Purchase Notice in
accordance with the terms of the Indenture.



     9. Contingent Interest



     The Company shall pay Contingent Interest to the Holders of the Securities during any
six-month period from January 15 to July 14 and July 15 to January 14, commencing after January 14,
2013, if the average Market Price of the Securities for the five Trading Days ending on the third
Trading Day immediately preceding the first day of the applicable six-month period equals 120% or
more of the principal amount of the Securities.



     The amount of Contingent Interest payable per $1,000 principal amount of the Security



 









 




with respect to any six-month period will equal the annual rate of 0.25% of the average Market
Price of a Security for the five Trading Day measuring period referred to above.




     Contingent Interest, if any, will accrue and be payable on the Interest Payment Date
immediately following the relevant six-month period to Holders of the Securities as of the Regular
Record Date relating to such Interest Payment Date.



     10. Denominations, Transfer, Exchange



     The Securities are in registered form, without coupons, in denominations of $1,000 principal
amount and integral multiples of $1,000 principal amount. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental charges that may be imposed in relation thereto by law or permitted by the
Indenture.



     11. Persons Deemed Owners



     The Holder of a Security may be treated as the owner of it for all purposes.



     12. Unclaimed Money



     If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and any Paying Agent will pay the money back to the Company, subject to the provisions of the
Indenture. After that, Holders entitled to money must look to the Company for payment as general
creditors.



     13. Amendment, Supplement and Waiver



     Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived subject to certain
exceptions with the consent of the Holders of a majority in aggregate principal amount of the
Securities then Outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other things, (x) cure
any ambiguity, omission, mistake, defect or inconsistency or (y) make any other change that does
not adversely affect the interests of the Holders in any material respect.



     14. Successor Entity



     When a successor Person assumes all the obligations of its predecessor under the Securities
and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor
Person (except in certain circumstances specified in the Indenture) shall be released from those
obligations.



 









 





     15. Defaults and Remedies



     An Event of Default shall occur upon the occurrence of any of the events specified in Section
7.01(a) of the Indenture. Subject to the provisions of the penultimate paragraph of Section
7.02(c) of the Indenture, if an Event of Default shall occur and be continuing with respect to the
Securities (other than an Event of Default specified in clause (8) or (9) of Section 7.01(a) of the
Indenture), the Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding may, and the Trustee at the request of such Holders shall, declare all
unpaid principal of and accrued interest, including Contingent Interest, if any, on all Securities
to be due and payable, by a notice in writing to the Company (and to the Trustee if given by the
Holders of the Securities). Upon any such declaration, such principal and interest, including
Contingent Interest, if any, shall become due and payable immediately. If an Event of Default
specified in clauses (8) or (9) of Section 7.01(a) of the Indenture occurs and is continuing, then
all the Securities shall ipso facto become and be due and payable immediately in an amount equal to
the principal amount of the Securities, together with accrued and unpaid interest, if any,
including Contingent Interest, if any, to the date the Securities become due and payable, without
any declaration or other act on the part of the Trustee or any Holder.



     The Holders of a majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul an acceleration and its
consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(1) all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue
interest on all Outstanding Securities, (3) the principal of any Outstanding Securities which have
become due otherwise than by such declaration of acceleration and interest thereon at the rate
borne by the Securities, and (4) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Securities; (b) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction; and (c) all Defaults and Events
of Default, other than the non-payment of principal of and interest on the Securities which have
become due solely by such declaration of acceleration, have been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent thereon.



     Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may, in accordance with the provisions of the Indenture, withhold from Holders notice of
any continuing Default (except a Default in payment of principal or interest or to deliver amounts
owing upon conversion) if and so long as it determines that withholding notice is in their
interests. The Company is required to file periodic certificates with the Trustee as to the
Company’s compliance with the Indenture and knowledge or status of any Default.



     16. Trustee Dealings with the Company



     The Bank of New York, the initial Trustee under the Indenture, or any of its Affiliates, in
its individual or any other capacity, may make loans to, accept deposits from and perform



 









 




services for the Company or an Affiliate of the Company, and may otherwise deal with the
Company or an Affiliate of the Company, as if it were not the Trustee.




     17. No Recourse Against Others



     No director, officer, employee, stockholder, incorporator or agent of the Company, as such,
will have any liability for any obligations of the Company under the Securities, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Securities by accepting a Security waives and releases all such liability.



     18. Authentication



     This Security shall not be valid until the Trustee or an authenticating agent manually signs
the certificate of authentication on the other side of this Security.



     19. Abbreviations and Definitions



     Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts
to Minors Act).



     All terms defined in the Indenture and used in this Security but not specifically defined
herein are defined in the Indenture and are used herein as so defined.



     20. Indenture to Control; Governing Law



     In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control. This Security and the Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.



     The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: OSI Pharmaceuticals, Inc., 41 Pinelawn Road, Melville, NY
11747, Attention: General Counsel, Facsimile No. (631) 752-3880.



 









 





SCHEDULE OF EXCHANGES OF SECURITIES




     The initial principal amount of this Global Security is TWO HUNDRED MILLION DOLLARS
($200,000,000) The following exchanges, purchases or conversions of a part of this Global Security
have been made:



	 	 	 	 	 	 	 
	 
	 	 	 	Notation Stating and	 	 
	 
	 	Authorized
	 	Explaining Change
	 	Principal Amount
	 
	 	Signatory of
	 	in Principal
	 	of this
	Date
	 	Securities Custodian
	 	Amount Recorded
	 	Global Security
	 
	 	 
	 	 
	 	 





 









 





ASSIGNMENT FORM




     To assign this Security, fill in the form below:


I or we assign and transfer this Security to




	 	 	 
	 

	(Insert assignee’s soc. sec. or tax I.D. no.)
	 
	 

	 
	 

	 
	 

	Print or type assignee’s name, address and zip code)






	 	 	 
	and irrevocably appoint

	 	 
	 
	 	 




 

agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.




	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name
	 

	 	 	 	 	 	appears on the other side of this
	 

	 	 	 	 	 	Security)






	 	 	 	 	 
	*Signature guaranteed by:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 







 




			
	*	 	The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.




 









 










FORM OF CONVERSION NOTICE




     To convert this Security into Common Stock of the Company, check the box:     o


To convert only part of this Security, state the principal amount to be converted (must be $1,000
or a integral multiple of $1,000): $                    .



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



	 	 	 
	 

	(Insert assignee’s soc. sec. or tax I.D. no.)
	 
	 

	 
	 

	 
	 

	Print or type assignee’s name, address and zip code)






	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	Your Signature:
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	(Sign exactly as your name
	 

	 	 	 	 	 	appears on the other side of this
	 

	 	 	 	 	 	Security)






	 	 	 	 	 
	*Signature guaranteed by:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 







 




			
	*	 	The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.





 









 





FORM OF NOTICE OF REDEMPTION




[DATE]



To the Holders of the 3% Convertible Senior Subordinated Notes due January 15, 2038 issued by OSI
Pharmaceuticals, Inc.:




     OSI Pharmaceuticals, Inc. (the “Issuer”) by this written notice hereby exercises, pursuant to
Section 3.01 of that certain Indenture (the “Indenture”), dated as of January 9, 2008, between the
Issuer and The Bank of New York, its right to redeem $[                    ] of its 3% Convertible Senior
Subordinated Notes due January 15, 2038 (the “Securities”). All capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.




	 	1.	 	Redemption Date: [                        ,           ]
	 
	 	2.	 	Redemption Price: $[                    ]
	 
	 	3.	 	Conversion Rate: Each $1,000 principal amount of the Securities is convertible into
the Settlement Amount, at a rate of [•] shares of the Issuer’s common stock, par value
$0.01 per share (the “Common Stock”), subject to adjustment, during the period described
below.
	 
	 	4.	 	Paying Agent and Conversion Agent: [NAME] [ADDRESS]
	 
	 	5.	 	The Securities called for redemption may be converted at your option at any time from
the date of this Notice of Redemption until 5:00 p.m. (New York City time) on the Business
Day immediately prior to the Redemption Date set forth above.
	 
	 	6.	 	The Securities called for redemption and not converted at your election prior to
5:00 p.m. (New York City time) on the Business Day immediately prior to Redemption Date set
forth above shall be redeemed on the Redemption Date.
	 
	 	7.	 	If you elect to convert your Securities, you must satisfy the requirements for
conversion set forth in your Securities.
	 
	 	8.	 	Your Securities called for redemption must be surrendered by you (by effecting book
entry transfer of the Securities or delivering Certificated Securities, together with
necessary endorsements, as the case may be) to [Name of Paying Agent] at [insert address]
in order for you to collect the Redemption Price.
	 
	 	9.	 	[The Securities bearing the following Certificate Number(s) in the principal amount set
forth below opposite such Certificate Number(s) are being redeemed:
	 
	 	 	 	Certificate Number(s) Principal Amount]
	 
	 	10.	 	Unless the Issuer defaults in making the payment of the Redemption Price owed to you,
Interest, Contingent Interest, if any, and Additional Interest, if any, on your Securities
called for redemption shall cease to accrue on and after the Redemption Date.
	 
	 	11.	 	CUSIP Number: [671040 AG8]





OSI PHARMACEUTICALS, INC.




 









 





FORM OF NOTICE OF REPURCHASE




[DATE]



To the Beneficial Owners of the 3% Convertible Senior Subordinated Notes due January 15, 2038 (the
“Securities”) issued by OSI Pharmaceuticals, Inc.:




     OSI Pharmaceuticals, Inc. (the “Issuer”) by this written notice hereby notifies you, pursuant
to Section [3.07] [3.08] of that certain Indenture (the “Indenture”), dated as of January 9, 2008,
between the Issuer and The Bank of New York, that you may request the Issuer to repurchase your
Securities by delivery of a Repurchase Notice. Included herewith is the form of Repurchase Notice
to be completed by you if you wish to have your Securities repurchased by the Issuer. All
capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Indenture.




1. Repurchase Date: [                ]




2. Repurchase Price: [               ]




3. Conversion Rate: To the extent described in Item 5 below, each $1,000 principal amount
of the Securities is convertible into the Settlement Amount, at a rate of [•] shares of
the Issuer’s common stock, par value $0.01 per share (the “Common Stock”), subject to
adjustment.




4. Paying Agent and Conversion Agent: [NAME] [ADDRESS]




5. The Securities as to which you have delivered a Repurchase Notice to the Paying Agent
may be converted if they are otherwise convertible pursuant to Article 4 of the Indenture
and the terms of the Securities only if you withdraw such Repurchase Notice pursuant to
the terms of the Indenture. You may be entitled to have your Securities converted into
cash or a combination of cash and shares of the Issuer’s common stock at any time prior to
the Close of Business on the Business Day immediately preceding January 15, 2038, only
upon the occurrence of the following events:




	 	(a)	 	during any calendar quarter commencing after the calendar
quarter ending March 31, 2008 and only during such calendar quarter, if the
Closing Price of the Issuer’s Common Stock for at least 20 Trading Days in the
period of 30 consecutive Trading Days ending on the last Trading Day of such
preceding fiscal quarter was more than 130% of the Base Conversion Price per
share of Common Stock on the last day of such preceding fiscal quarter;
	 
	 	(b)	 	during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount of
the Securities for each day of such Measurement Period was less than 97% of the
product of the Closing Price of the Common Stock and the Conversion Rate of the
Securities on each such day;
	 
	 	(c)	 	if the Issuer has called the Securities for redemption, at any
time prior to the Close of Business on the Business Day prior to the Redemption
Date, even if the Securities are not otherwise convertible at such time;
	 
	 	(d)	 	if the Issuer elects to make specified distributions to holders
of Common Stock as described in the Indenture;





 









 






	 	(e)	 	if a Fundamental Change occurs; or
	 
	 	(f)	 	during the last month prior to January 15, 2038.






6. The Securities as to which you have delivered a Repurchase Notice must be surrendered
by you (by effecting book entry transfer of the Securities or delivering Certificated
Securities, together with necessary endorsements, as the case may be) to [Name of Paying
Agent] at [insert address] in order for you to collect the Repurchase Price.




7. The Repurchase Price for the Securities as to which you have delivered a Repurchase
Notice and not withdrawn such Repurchase Notice shall be paid promptly following the later
of the Business Day immediately following such Repurchase Date and the date you deliver
such Securities to [Name of Paying Agent].




8. In order to exercise your option to have the Issuer repurchase your Securities, you
must deliver the Repurchase Notice, duly completed by you with the information required by
such Repurchase Notice (as specified in Section [3.07] [3.08] of the Indenture) and
deliver such Repurchase Notice to the Paying Agent at any time from 9:00 a.m. (New York
City time) on [insert day that is 20 Business Days prior to Repurchase Date] until
5:00 p.m. (New York City time) on the [insert the Business Day immediately preceding the
Repurchase Date].




9. In order to withdraw any Repurchase Notice previously delivered by you to the Paying
Agent, you must deliver to the Paying Agent, by 5:00 p.m. (New York time) on [insert day
that is the Business Day prior to the Repurchase Date], a written notice of withdrawal
specifying (i) the certificate number, if any, of the Securities in respect of which such
notice of withdrawal is being submitted, (ii) the principal amount of the Securities in
respect of which such notice of withdrawal is being submitted (or if the Securities are
not in definitive form, the notice of withdrawal must comply with the Applicable
Procedures), and (iii) if you are not withdrawing your Repurchase Notice for all of your
Securities, the principal amount of the Securities which still remain subject to the
original Repurchase Notice.




10. Unless the Issuer defaults in making the payment of the Repurchase Price owed to you,
Interest, Contingent Interest, if any, on your Securities as to which you have delivered a
Repurchase Notice shall cease to accrue on and after the Repurchase Date.




11. CUSIP Number: [671040 AG8]




12. Any Security not properly tendered or not otherwise accepted for repurchase shall
remain outstanding and continue to accrue interest, Contingent Interest, if any.




13. Holders whose Securities are being repurchased only in part will be issued new
Securities equal in principal amount to that portion of the Securities tendered (or
transferred by book-entry) that is not to be repurchased, which portion must be equal to
$1,000 in principal amount or an integral multiple thereof.



OSI PHARMACEUTICALS, INC.




 









 





FORM OF [REPURCHASE][FUNDAMENTAL CHANGE PURCHASE] NOTICE




     To: [Name of Paying Agent]


The undersigned registered owner of this Security hereby acknowledges receipt of a notice from OSI
Pharmaceuticals, Inc. (the “Company”) pursuant to Section [3.07][3.08] of that certain Indenture
(the “Indenture”), dated as of January 9, 2008, between the Company and The Bank of New York, and
requests and instructs the Company to purchase the entire principal amount of this Security, or the
portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance
with the terms of the Security and the Indenture at the [Specified Repurchase][Fundamental Change
Purchase] Price, together with accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any), to, but not including, the [Specified Repurchase][Fundamental Change
Purchase] Date, to the registered Holder hereof.




	 	 	 	 	 	 	 
	Date:

	 	 	 	 
	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	 	 	Signature (s)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Signatures must be guaranteed by a qualified
	 

	 	 	 	 	 	guarantor institution with membership in an
	 

	 	 	 	 	 	approved signature guarantee program pursuant
	 

	 	 	 	 	 	to Rule 17Ad-15 under the Securities Exchange
	 

	 	 	 	 	 	Act of 1934.
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guaranty
	 
	 	 	 	 	 	 
	Principal amount to be redeemed (in an integral	 	 
	Multiple of $1,000, if less than all):	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	Certificate number (if applicable):	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 




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




A-1









 





CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION

OF TRANSFER OF RESTRICTED SECURITIES



Re: 3% Convertible Senior Subordinated Notes Due 2038 (the “Securities”) of OSI Pharmaceuticals,
Inc.



This certificate relates to $                     principal amount of Securities owned in (check applicable
box) o book-entry or o definitive form by                           (the “Transferor”).




     The Transferor has requested a Registrar or the Trustee to exchange or register the transfer
of such Securities.



     In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with transfer restrictions relating to the
Securities as provided in Section 2.13 of the Indenture, dated as of January 9, 2008, among OSI
Pharmaceuticals, Inc., and The Bank of New York, as trustee (the “Indenture”), and the transfer of
such Security is being made pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”) (check applicable box), or the transfer or exchange,
as the case may be, of such Security does not require registration under the Securities Act because
(check applicable box):



	 	 	 
	          

	 	Such Security is being transferred pursuant to an effective registration statement under the Securities Act.
	 
	 	 
	          

	 	Such Security is being acquired for the Transferor’s own account, without transfer.
	 
	 	 
	          

	 	Such Security is being transferred to the Company or a Subsidiary (as defined in the Indenture) of the Company.
	 
	 	 
	          

	 	Such security is being transferred to a person the Transferor reasonably believes is a “qualified institutional buyer”
(as defined in Rule 144A or any successor provision thereto (“Rule 144A”) under the Securities Act) that is purchasing
for its own account or for the account of a “qualified institutional buyer”, in each case to whom notice has been given
that the transfer is being made in reliance on such Rule 144A, and in each case in reliance on Rule 144A.
	 
	 	 
	          

	 	Such Security is being transferred pursuant to and in compliance with an exemption from the registration requirements
under the Securities Act in accordance with Rule 144 (or any successor thereto) (“Rule 144”) under the Securities Act.
	 
	 	 
	          

	 	Such Security is being transferred to a non-U.S. Person in an offshore transaction in compliance with Rule 904 of
Regulation S under the Securities Act (or any successor thereto).
	 
	 	 
	          

	 	Such Security is being transferred pursuant to and in compliance with an exemption from the registration requirements of
the Securities Act (other than an exemption referred to above) and as a result of which such Security will, upon such
transfer, cease to be a “restricted security” within the meaning of Rule 144 under the Securities Act.






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     The Transferor acknowledges and agrees that, if the transferee will hold any such Securities
in the form of beneficial interests in a Global Security which is a “restricted security” within
the meaning of Rule 144 under the Securities Act, then such transfer can only be made pursuant to
(i) Rule 144A under the Securities Act and such transferee must be a “qualified institutional
buyer” (as defined in Rule 144A) or (ii) Regulation S under the Securities Act.



	 	 	 
	Date:
	 	 
	 

	 	 
	 

	 	(Insert Name of Transferor)







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