Exhibit 4.1


 




 





AFFYMETRIX, INC.


 


as Issuer


 


 


and


 


 


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


 


as Trustee


 






 


Indenture


 


Dated as of November 16, 2007


 






 


3.50% Senior Convertible Notes Due 2038




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  Definitions
  and Other Provisions of General Application

  	
   

  
	
   

  	
   

  
	
  SECTION 1.01. Definitions

  	
  1

  
	
  SECTION 1.02. Compliance Certificates and
  Opinions

  	
  9

  
	
  SECTION 1.03. Form of Documents Delivered
  to Trustee

  	
  10

  
	
  SECTION 1.04. Acts of Holders; Record Dates

  	
  10

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

  	
  11

  
	
  SECTION 1.06. Notice to Holders; Waiver

  	
  12

  
	
  SECTION 1.07. Conflict with Trust Indenture
  Act

  	
  12

  
	
  SECTION 1.08. Effect of Headings and Table
  of Contents

  	
  12

  
	
  SECTION 1.09. Successors and Assigns

  	
  12

  
	
  SECTION 1.10. Severability Clause

  	
  12

  
	
  SECTION 1.11. Benefits of Indenture

  	
  12

  
	
  SECTION 1.12. Governing Law

  	
  13

  
	
  SECTION 1.13. Legal Holiday

  	
  13

  
	
  SECTION 1.14. Waiver of Jury Trial

  	
  13

  
	
  SECTION 1.15. Force Majeure

  	
  13

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  Security
  Forms

  	
   

  
	
   

  	
   

  
	
  SECTION 2.01. Forms Generally

  	
  13

  
	
  SECTION 2.02. Form of Face of Security

  	
  14

  
	
  SECTION 2.03. Form of Reverse of Security

  	
  17

  
	
  SECTION 2.04. Form of Trustee’s Certificate
  of Authentication

  	
  22

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  The
  Securities

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. Title and Terms

  	
  23

  
	
  SECTION 3.02. Denominations

  	
  23

  
	
  SECTION 3.03. Execution, Authentication,
  Delivery and Dating

  	
  23

  
	
  SECTION 3.04. Temporary Securities

  	
  24

  
	
  SECTION 3.05. Registration; Registration of
  Transfer and Exchange; Restrictions on Transfer

  	
  24

  
	
  SECTION 3.06. Mutilated, Destroyed, Lost
  and Stolen Securities

  	
  26

  
	
  SECTION 3.07. Persons Deemed Owners

  	
  26

  
	
  SECTION 3.08. Book-Entry Provisions for
  Global Securities

  	
  27

  
	
  SECTION 3.09. Cancellation and Transfer
  Provisions

  	
  28

  
	
  SECTION 3.10. CUSIP Numbers

  	
  28

  



 


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  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  Satisfaction
  and Discharge

  	
   

  
	
   

  	
   

  
	
  SECTION 4.01. Satisfaction and Discharge of
  Indenture

  	
  29

  
	
  SECTION 4.02. Application of Trust Money

  	
  29

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  Remedies

  	
   

  
	
   

  	
   

  
	
  SECTION 5.01. Events of Default

  	
  30

  
	
  SECTION 5.02. Acceleration of Maturity;
  Rescission and Annulment

  	
  31

  
	
  SECTION 5.03. Collection of Indebtedness
  and Suits for Enforcement by Trustee

  	
  33

  
	
  SECTION 5.04. Trustee May File Proofs of
  Claim

  	
  33

  
	
  SECTION 5.05. Application of Money
  Collected

  	
  34

  
	
  SECTION 5.06. Limitation on Suits

  	
  34

  
	
  SECTION 5.07. Unconditional Right of
  Holders to Receive Payment

  	
  35

  
	
  SECTION 5.08. Restoration of Rights and
  Remedies

  	
  35

  
	
  SECTION 5.09. Rights and Remedies
  Cumulative

  	
  35

  
	
  SECTION 5.10. Delay or Omission Not Waiver

  	
  35

  
	
  SECTION 5.11. Control by Holders

  	
  36

  
	
  SECTION 5.12. Waiver of Past Defaults

  	
  36

  
	
  SECTION 5.13. Undertaking for Costs

  	
  36

  
	
  SECTION 5.14. Waiver of Stay or Extension
  Laws

  	
  36

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  The Trustee

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. Certain Duties and
  Responsibilities

  	
  37

  
	
  SECTION 6.02. Notice of Defaults

  	
  37

  
	
  SECTION 6.03. Certain Rights Of Trustee

  	
  37

  
	
  SECTION 6.04. Not Responsible for Recitals

  	
  39

  
	
  SECTION 6.05. May Hold Securities

  	
  39

  
	
  SECTION 6.06. Money Held in Trust

  	
  39

  
	
  SECTION 6.07. Compensation and
  Reimbursement

  	
  39

  
	
  SECTION 6.08. Disqualification; Conflicting
  Interests

  	
  40

  
	
  SECTION 6.09. Corporate Trustee Required;
  Eligibility

  	
  40

  
	
  SECTION 6.10. Resignation and Removal;
  Appointment of Successor

  	
  40

  
	
  SECTION 6.11. Acceptance of Appointment by
  Successor

  	
  42

  
	
  SECTION 6.12. Merger, Conversion,
  Consolidation or Succession to Business

  	
  42

  
	
  SECTION 6.13. Preferential Collection of
  Claims Against

  	
  42

  



 


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  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  Holders’
  Lists and Reports By Trustee

  	
   

  
	
   

  	
   

  
	
  SECTION 7.01. Company to Furnish Trustee
  Names and Addresses of Holders

  	
  43

  
	
  SECTION 7.02. Preservation of Information;
  Communications to Holders

  	
  43

  
	
  SECTION 7.03. Reports By Trustee

  	
  43

  
	
  SECTION 7.04. [Reserved]

  	
  43

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  Consolidation,
  Merger, Conveyance, Transfer or Lease

  	
   

  
	
   

  	
   

  
	
  SECTION 8.01. Company May Consolidate,
  etc., Only on Certain Terms

  	
  44

  
	
  SECTION 8.02. Successor Substituted

  	
  44

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  
	
  Supplemental
  Indentures

  	
   

  
	
   

  	
   

  
	
  SECTION 9.01. Supplemental Indentures
  Without Consent of Holders

  	
  45

  
	
  SECTION 9.02. Supplemental Indentures With
  Consent of Holders

  	
  46

  
	
  SECTION 9.03. Execution of Supplemental
  Indentures

  	
  47

  
	
  SECTION 9.04. Effect of Supplemental
  Indentures

  	
  47

  
	
  SECTION 9.05. Conformity with Trust
  Indenture Act

  	
  47

  
	
  SECTION 9.06. Reference in Securities to
  Supplemental Indentures

  	
  47

  
	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  
	
  Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 10.01. Payments

  	
  47

  
	
  SECTION 10.02. Maintenance of Office or
  Agency

  	
  48

  
	
  SECTION 10.03. Money for Security Payments
  to be Held in Trust

  	
  48

  
	
  SECTION 10.04. Statement by Officers as to
  Default

  	
  49

  
	
  SECTION 10.05. Existence

  	
  50

  
	
  SECTION 10.06. Reports and Delivery of
  Certain Information

  	
  50

  
	
  SECTION 10.07. [Reserved]

  	
  50

  
	
  SECTION 10.08. Book-Entry System

  	
  50

  
	
  SECTION 10.09. Information for IRS Filings

  	
  50

  
	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
   

  	
   

  
	
  Redemption
  and Repurchases

  	
   

  
	
   

  	
   

  
	
  SECTION 11.01. Right to Redeem; Notices to
  Trustee

  	
  51

  
	
  SECTION 11.02. Selection of Securities to
  be Redeemed

  	
  51

  
	
  SECTION 11.03. Notice of Redemption

  	
  51

  



 


iii

















 


	
  SECTION 11.04. Effect of Notice of
  Redemption

  	
  52

  
	
  SECTION 11.05. Deposit of Redemption Price

  	
  52

  
	
  SECTION 11.06. Securities Redeemed in Part

  	
  52

  
	
  SECTION 11.07. [Reserved]

  	
  53

  
	
  SECTION 11.08. Repurchase of Securities at
  Option of the Holder

  	
  53

  
	
  SECTION 11.09. Repurchase of Securities at
  Option of the Holder Upon Fundamental Change

  	
  55

  
	
  SECTION 11.10. Effect of Repurchase Notice
  or Fundamental Change Repurchase Notice

  	
  58

  
	
  SECTION 11.11. Deposit of Repurchase Price
  or Fundamental Change Repurchase Price

  	
  59

  
	
  SECTION 11.12. Securities Repurchased in
  Whole or in Part

  	
  60

  
	
  SECTION 11.13. Covenant to Comply With
  Securities Laws Upon Repurchase of Securities

  	
  60

  
	
  SECTION 11.14. Repayment to the Company

  	
  60

  
	
   

  	
   

  
	
  ARTICLE XII

  	
   

  
	
   

  	
   

  
	
  Interest
  Payments on the Securities

  	
   

  
	
   

  	
   

  
	
  SECTION 12.01. Interest Rate

  	
  61

  
	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  
	
   

  	
   

  
	
  Conversion

  	
   

  
	
   

  	
   

  
	
  SECTION 13.01. Conversion Privilege

  	
  61

  
	
  SECTION 13.02. Conversion Procedure

  	
  62

  
	
  SECTION 13.03. Fractional Shares

  	
  63

  
	
  SECTION 13.04. Taxes on Conversion

  	
  64

  
	
  SECTION 13.05. Company to Provide Stock

  	
  64

  
	
  SECTION 13.06. Adjustment of Conversion
  Rate

  	
  65

  
	
  SECTION 13.07. No Adjustment

  	
  70

  
	
  SECTION 13.08. [Reserved]

  	
  70

  
	
  SECTION 13.09. Notice of Conversion Rate
  Adjustment

  	
  70

  
	
  SECTION 13.10. Notice of Certain
  Transactions

  	
  71

  
	
  SECTION 13.11. Effect of Reclassification,
  Consolidation, Merger or Sale on Conversion Privilege

  	
  71

  
	
  SECTION 13.12. Adjustment to Shares
  Delivered Upon Fundamental Change

  	
  72

  
	
  SECTION 13.13. Trustee’s Disclaimer

  	
  73

  
	
  SECTION 13.14. Voluntary Increase

  	
  74

  
	
  SECTION 13.15. Company Determination Final

  	
  74

  



 


iv

















 


 


INDENTURE, dated as of November 16, 2007,
between Affymetrix, Inc., a corporation duly organized and existing under the
laws of the State of Delaware, as Issuer (the “Company”), having its
principal office at 3420 Central Expressway, Santa Clara, CA 95051, and The
Bank of New York Trust Company, N.A., as Trustee (the “Trustee”).


 


RECITALS OF THE COMPANY


 


The Company has duly
authorized the creation of an issue of 3.50% Senior Convertible Notes Due 2038
(each a “Security”, and collectively, the “Securities”) of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.


 


All things necessary to make
the Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid and legally binding
obligations of the Company, and to make this Indenture a valid and legally
binding agreement of the Company, in accordance with the terms of the
Securities and the Indenture, have been done.


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


ARTICLE I


 


Definitions and Other Provisions of General Application


 


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


 


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


 


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


 


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


 


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


 

















 


“Act,” when used with
respect to any Holder, has the meaning specified in Section 1.04.


 


“Additional Share Notice
Date” has the meaning specified in Section 13.12(a).


 


“Additional Shares”
has the meaning specified in Section 13.12(b).


 


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


 


“Agent Members” has
the meaning specified in Section 3.08.


 


“Board of Directors”
means, with respect to any Person, either the board of directors of such Person
or any duly authorized committee of that board. Unless otherwise specified,
references to the Board of Directors are to the Board of Directors of the
Company or its successor.


 


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


 


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


 


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


 


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


 


“Common Stock” means
the shares of Common Stock, par value $0.01 per share, of the Company as it
exists on the date of this Indenture or any other shares of Capital Stock of
the Company into which the Common Stock shall be reclassified or changed or, in
the event of a merger, consolidation or other similar transaction involving


 


2

















 


the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, common equity interests, ordinary shares or
depositary shares or other certificates representing common equity interests of
such surviving corporation or its direct or indirect parent corporation.


 


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


 


“Company Notice” has
the meaning specified in Section 11.08.


 


“Company Notice Date”
has the meaning specified in Section 11.08.


 


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


 


“Continuing Director”
means a director who either was a member of the Board of Directors of the
Company on November 13, 2007 or who becomes a member of the Board of
Directors of the Company subsequent to that date and whose election,
appointment or nomination for election by the stockholders of the Company is
duly approved by a majority of the Continuing Directors at the time of such
approval, either by a specific vote or by approval of the proxy statement
issued by the Company on behalf of the entire Board of Directors of the Company
in which such individual is named as nominee for director.


 


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


 


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


 


“Conversion Price”
has the meaning specified in Section 13.01(c).


 


“Conversion Rate” has
the meaning specified in Section 13.01(c).


 


“Corporate Trust Office”
means the
principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is located at
700 South Flower Street, Suite 500, Los Angeles, CA 90017, Attention:  Corporate Unit, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).


 


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


 


3

















 


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


 


“Effective Date” has
the meaning specified in Section 13.12(b).


 


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


 


“Ex-dividend Date”
means the first date on which the Common Stock trades on the applicable
exchange or in the applicable market, regular way, without the right to receive
the issuance or distribution in question.


 


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


 


“Fundamental Change”
means the occurrence of any of the following events after the date of this
Indenture:


 


(1)                                  (A) a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, a Subsidiary of the Company or the Company’s or a
Subsidiary’s employee benefit plans, has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of common
equity of the Company representing more than 50% of the voting power of the
common equity of the Company and (B) a schedule, report or form is filed
with the Commission disclosing such beneficial ownership or the Company
otherwise becomes aware of such beneficial ownership notwithstanding failure of
such person or group to make any filing with the Commission;


 


(2)                                  consummation of
any share exchange, consolidation or merger of the Company pursuant to which
the Common Stock will be converted into cash, securities or other property, or
any sale, lease or other transfer in one transaction or a series of
transactions of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, taken as a whole, to any person other than a Subsidiary
of the Company; provided, however, that any such transaction in
which the holders of more than 50% of all classes of the common equity of the
Company immediately prior to such transaction own, directly or indirectly, more
than 50% of all classes of common equity of the continuing or surviving
corporation or transferee or the parent thereof immediately after such event
shall not constitute a fundamental change;


 


(3)                                  Continuing
Directors cease to constitute at least a majority of the Board of Directors of
the Company (or, if applicable, a successor person to the Company);


 


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


 


4

















 


(5)                                  the Common
Stock (or other common stock or depositary receipts into which the Securities
are then convertible) ceases to be listed or quoted on the NASDAQ Global Select
Market or another U.S. national securities exchange.


 


Notwithstanding the
foregoing, a transaction as described in clause (2) above shall be deemed not
to be a Fundamental Change for all purposes of this Indenture (including for
the purpose of determining whether an adjustment to the Conversion Rate is
required pursuant to Section 13.12) if at least 90% of the consideration
received or to be received by the holders of the Common Stock, excluding cash
payments for fractional shares and cash payments in respect of dissenters’ or
appraisal rights, in connection with the transaction or transactions otherwise
constituting the Fundamental Change, consists of shares of common stock or
depositary receipts traded on the NASDAQ Global Select Market or another U.S.
national securities exchange or which will be so traded or quoted (“publicly
traded securities”) when issued or exchanged in connection with such
transaction or transactions, and as a result of such transaction or
transactions the Securities become convertible into such publicly traded
securities, excluding cash payments for fractional shares and cash payments in
respect of dissenters’ or appraisal rights.


 


“Fundamental Change
Company Notice” has the meaning specified in Section 11.09.


 


“Fundamental Change
Repurchase Date” has the meaning specified in Section 11.09.


 


“Fundamental Change
Repurchase Notice” has the meaning specified in Section 11.09.


 


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


 


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


 


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


 


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


 


“Indenture” means
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of


 


5

















 


this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively.


 


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


 


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


 


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


 


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


 


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


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, the Chief Executive
Officer, the President or any Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 10.04 shall be the principal
executive, financial or accounting officer of the Company.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be external or in-house counsel for
the Company.


 


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


 


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


 


6

















 


(ii) Securities, or portions thereof, for whose
payment, redemption or repurchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities; provided
that if such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given to the Holders as herein
provided, or provision satisfactory to a Responsible Officer of the Trustee
shall have been made for giving such notice; and provided  further
that if such Securities are to be repurchased pursuant to Section 11.08
or 11.09, the withdrawal deadline for such Securities as set forth in Section
11.10 has occurred; and


 


(iii) Securities that have been paid or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture;


 


provided, however,
that, in determining whether the Holders of the requisite Principal Amount of
the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.


 


“Paying Agent” means
any Person (including the Company) authorized by the Company to pay the
principal of, interest on, Redemption Price, Repurchase Price or Fundamental
Change Repurchase Price of, any Securities on behalf of the Company. The
Trustee shall initially be the Paying Agent.


 


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


 


“Physical Securities”
means permanent certificated Securities in registered form issued in
denominations of $2,000 Principal Amount and integral multiples in excess
thereof.


 


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


 


“Record Date” for the
interest payable on any Interest Payment Date means each January 1 and July 1
(whether or not a Business Day) next preceding such Interest Payment Date.


 


7

















 


“Redemption Date”
shall mean the date specified for redemption of the Securities in accordance
with the terms of the Securities and Article 11 hereof.


 


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


 


“Repurchase Date” has
the meaning specified in Section 11.08.


 


“Repurchase Notice”
has the meaning specified in Section 11.08.


 


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


 


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


 


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


 


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


 


“Stated Maturity,”
when used with respect to any Security, means January 15, 2038.


 


“Stock Price” has the
meaning specified in Section 13.12(b).


 


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


 


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


 


“Trading Day” means a
day during which trading in securities generally occurs on the NASDAQ Global
Select Market or, if the Common Stock is not listed on the NASDAQ Global Select
Market, then a day during which trading in securities generally occurs on the
principal U.S. securities exchange on which the Common Stock is then listed or,
if the Common Stock is not listed on a U.S. national or regional securities
exchange, then on the principal other market on which the Common Stock is then
traded or quoted or, if the Common Stock is not so listed, admitted for trading
or quoted, any Business Day.


 


8

















 


“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in effect on the date as of which this
Indenture was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.


 


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


 


“Underwriter” means
J.P. Morgan Securities Inc.


 


“Underwriting Agreement”
means the Underwriting Agreement, dated November 13, 2007, entered into by
the Company and the Underwriter in connection with the issuance and sale of the
Securities.


 


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


 


SECTION 1.02. Compliance
Certificates and Opinions. Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion shall
be given in the form of an Officers’ Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.


 


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


 


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


 


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


 


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


 


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


 


9

















 


SECTION 1.03. Form of
Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.


 


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


 


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


 


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


 


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


 


10
















 


(c)  The Company may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders.
If not set by the Company prior to the first solicitation of a Holder made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


SECTION 1.06. Notice
to Holders; Waiver. Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at such Holder’s address as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.


 


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


 


Whenever under
this Indenture the Trustee is required to provide any notice by mail, in all
cases the Trustee may alternatively provide notice by overnight courier or by
telefacsimile, with confirmation of transmission.


 


SECTION 1.07. Conflict
with Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required
hereunder to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 


SECTION 1.08. Effect
of Headings and Table of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof, and all Article and Section references are to Articles and
Sections, respectively, of this Indenture unless otherwise expressly stated.


 


SECTION 1.09. Successors
and Assigns. All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.


 


SECTION 1.10. Severability
Clause. In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


SECTION 1.11. Benefits
of Indenture. Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
respective successors hereunder and the Holders of Securities, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 


12

















 


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


 


SECTION 1.13. Legal
Holiday. In any case where any Interest Payment Date or Stated Maturity 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 the Interest Payment
Date or at the Stated Maturity and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date or Stated
Maturity, as the case may be.


 


SECTION 1.14. Waiver
of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


SECTION 1.15. Force
Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including,
without limitation, strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


ARTICLE II



Security Forms


 


SECTION 2.01. Forms
Generally. The Securities and the Trustee’s certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor, the Internal Revenue Code of 1986, as amended, and
regulations thereunder, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof.


 


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


 


13

















 


SECTION 2.02. Form
of Face of Security. [INCLUDE IF SECURITY
IS A GLOBAL SECURITY. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.


 


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


 


14

















 


Affymetrix,
Inc.


 


3.50% Senior
Convertible Notes Due 2038


 


No. [     ]         CUSIP NO. 00826TAG3               U.S. $[            ]


 


Affymetrix,
Inc., a corporation duly organized and validly existing under the laws of the
State of Delaware (herein called the “Company”, which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to
[               ],
or registered assigns, the principal amount of
[                 ]
United States Dollars
($           ) [INCLUDE IF SECURITY IS A GLOBAL SECURITY. (which amount may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary, in accordance with the rules
and procedures of the Depositary)] on January 15, 2038, and to pay
interest on said principal amount semi-annually on January 15 and
July 15 of each year, commencing July 15, 2008, at the rate of 3.50%
per annum to holders of record on the immediately preceding January 1 and
July 1, respectively. Interest on this Security shall accrue from the most
recent date to which interest has been paid, or if no interest has been paid,
from the date of original issuance, until the Principal Amount is paid or duly
made available for payment. Except as otherwise provided in the Indenture, the
interest payable on this Security pursuant to the Indenture on any
January 15 or July 15 will be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Record Date, which shall be January 1 and July 1
(whether or not a Business Day) next preceding such January 15 or
July 15, respectively. The foregoing references to “interest on the
Securities” in this paragraph do not refer to any additional interest payable
pursuant to Section 5.02 of the Indenture; any such additional
interest shall be payable, if at all, in accordance with Section 5.02.
Unless expressly stated or the context otherwise requires, all other references
in this Security to interest on the Securities shall include additional
interest then accrued or accruing pursuant to Section 5.02(c). Payment
of the principal of and interest accrued on this Security shall be made by
check mailed to the address of the Holder of this Security specified in the register
of Securities, or, upon written application by a Holder of an aggregate
Principal Amount of greater than U.S. $2 million to the Security Registrar
setting forth wire instructions not later than ten days prior to the relevant
payment date, such Holder may receive payment by wire transfer in immediately
available funds, in such lawful money of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.


 


The Issue Date
of this Security is                            .


 


Reference is
made to the further provisions of this Security set forth on the reverse
hereof, including, without limitation, provisions (i) giving the Company the
right to redeem this Security as a whole or from time to time in part at any
time on or after January 15, 2013, (ii)  giving the Holders the right
to convert this Security into Common Stock of the Company and
(iii) requiring the Company to repurchase this Security on certain dates
and upon certain events, in each case, on the terms and subject to the


 


15

















 


limitations
referred to on the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place. Capitalized terms used but not defined herein
shall have such meanings as are ascribed to such terms in the Indenture.


 


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


 


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


 


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


 


	
   

  	
  AFFYMETRIX, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Authorized Signatory

  	
   

  



 


16

















 


SECTION 2.03. Form
of Reverse of Security. This Security is one of a duly authorized issue of
Securities of the Company, designated as its 3.50% Senior Convertible Notes Due
2038 (the “Securities”), all issued or to be issued under and pursuant
to an Indenture, dated as of November 16, 2007 (the “Indenture”),
between the Company and The Bank of New York Trust Company, N.A. (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities.


 


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


 


The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”),
as in effect on the date on which the Indenture was qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are subject to all such terms,
and holders of Securities are referred to the Indenture and the TIA for a
statement of them. To the extent the terms of the Indenture and this Security
are inconsistent, the terms of the Indenture shall govern.


 


Redemption at
the Option of the Company. No sinking fund is provided
for the Securities. The Securities are redeemable as a whole, or from time to
time in part, at any time on or after January 15, 2013 at the option of
the Company at a redemption price equal to 100% of the Principal Amount of
Securities to be redeemed, together with accrued and unpaid interest to, but
excluding, the Redemption Date (the “Redemption Price”) (unless the Redemption
Date is after a Record Date and on or prior to the Interest Payment Date to
which it relates, in which case such accrued and unpaid interest on such
Interest Payment Date shall be paid to the Holder of record on such Record
Date, and the Redemption Price shall be equal to 100% of the Principal Amount
of Securities to be redeemed). The Redemption Price will be paid in cash.


 


Repurchase by
the Company at the Option of the Holder. Subject to
the terms and conditions of the Indenture, the Company shall become obligated
to repurchase, at the option of the Holder, the Securities held by such Holder
on January 15, 2013, January 15, 2018 and January 15, 2028 (each
a “Repurchase Date”) at a price equal to 100% of the Principal Amount of
Securities to be repurchased (and accrued and unpaid interest to, but
excluding, the Repurchase Date shall be paid on the Repurchase Date to the
Holder of record on the immediately preceding Record Date) (the “Repurchase
Price”), upon delivery of a Repurchase Notice containing the information
set forth in the Indenture, at any time from the opening of business on the
date that is 30 Business Days prior to such Repurchase Date until the close of
business on the Business Day prior to such Repurchase Date and upon delivery of
the Securities to the Paying Agent by the Holder as set forth in the Indenture.
The Repurchase Price will be paid in cash.


 


17

















 


Repurchase by
the Company at the Option of the Holder Upon a Fundamental Change.
Subject to the terms and conditions of the Indenture, the Company shall become
obligated, at the option of the Holder, to repurchase the Securities if a
Fundamental Change occurs at any time prior to the Stated Maturity at 100% of
the Principal Amount plus accrued and unpaid interest to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”)
(unless the Fundamental Change Repurchase Date is after a Record Date and on or
prior to the Interest Payment Date to which it relates, in which case such
accrued and unpaid interest on such Interest Payment Date shall be paid to the
Holder of record on such Record Date, and the Fundamental Change Repurchase
Price shall be equal to 100% of the Principal Amount of Securities to be
repurchased). The Fundamental Change Repurchase Price will be paid in cash.


 


Withdrawal of
Repurchase Notice and Fundamental Change Repurchase Notice.
Holders have the right to withdraw, in whole or in part, any Repurchase Notice
or Fundamental Change Repurchase Notice, as the case may be, by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.


 


Payment of
Redemption Price, Repurchase Price and Fundamental Change Repurchase Price.
If cash sufficient to pay the Redemption Price, Repurchase Price or Fundamental
Change Repurchase Price, as the case may be, of all Securities or portions
thereof to be redeemed or repurchased on a Redemption Date, Repurchase Date or
Fundamental Change Repurchase Date, as the case may be, is deposited with the
Paying Agent on the Business Day following the Redemption Date, Repurchase Date
or Fundamental Change Repurchase Date, as the case may be, the Securities to be
redeemed or repurchased will cease to be outstanding and interest will cease to
accrue on such Securities (or portions thereof) immediately after such
Redemption Date, Repurchase Date or Fundamental Change Repurchase Date, as the
case may be, and the Holder thereof shall have no other rights as such (other
than the right to receive the Redemption Price, Repurchase Price or Fundamental
Change Repurchase Price, as the case may be) upon surrender of such Security.


 


Conversion.
Subject to the terms and conditions of the Indenture, a Holder may convert each
of its Securities into shares of Common Stock, at such Holder’s option at any
time and from time to time, at an initial conversion rate of
33.1991 shares per $1,000 Principal Amount of Securities (the “Conversion
Rate”), prior to the close of business on January 14, 2038. The
Conversion Rate in effect at any given time is subject to adjustment, and shall
be increased by a number of additional shares of Common Stock specified in the
Indenture in the event such conversion occurs in connection with certain
specified Fundamental Change transactions occurring on or prior to January 15,
2013. A Holder may convert fewer than all of such Holder’s Securities so long
as the Securities converted are an integral multiple of $1,000 Principal Amount.
Holders will not receive any cash payment representing accrued and unpaid
interest upon conversion of a Security. Accrued and unpaid interest will be
deemed paid in full rather than canceled, extinguished or forfeited; provided,
that if this Security shall be surrendered for conversion during the period
from close of business on any Record Date for the payment of interest through
the close of business on the Business Day next preceding the following Interest
Payment Date, (1) accrued and unpaid interest on such Interest


 


18

















 


Payment Date
shall be paid to the Holder of record on such Record Date, notwithstanding such
conversion, and (2) upon conversion such Security (or portion thereof being
converted) must be accompanied by an amount, in funds acceptable to the
Company, equal to the interest payable on such Interest Payment Date on the
Principal Amount being converted, except that no such payment described in this
clause (2) shall be required (A) in respect of conversions following the Record
Date immediately preceding January 15, 2038, (B) if the Company shall have
specified a Redemption Date or Fundamental Change Repurchase Date that is after
a Record Date and on or prior to the immediately following Interest Payment
Date or (C) to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such Security.


 


[INCLUDE IF SECURITY IS A GLOBAL SECURITY. In the event of a
deposit or withdrawal of an interest in this Security, including an exchange,
transfer, repurchase or conversion of this Security in part only, the Trustee,
as custodian of the Depositary, shall make an adjustment on its records to
reflect such deposit or withdrawal in accordance with the rules and procedures
of the Depositary.]


 


If an Event of
Default shall occur and be continuing, the Principal Amount plus accrued and
unpaid interest through such date on all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.


 


The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of
the Holders of the Securities under the Indenture at any time by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate Principal Amount of the Outstanding Securities. The Indenture also
contains provisions permitting the Holders of specified percentages in
aggregate Principal Amount of the Outstanding Securities, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of any provision
of or applicable to this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.


 


As provided in
and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities,
the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity satisfactory to it, the Trustee shall
not have received from the Holders of a majority in Principal Amount of
Outstanding Securities a direction inconsistent with such request, and the
Trustee shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the


 


19

















 


Holder of this
Security for the enforcement of any payment of said principal hereof or
interest hereon on or after the respective due dates expressed herein or for
the enforcement of any conversion right.


 


No reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the Principal Amount, Repurchase Price or Fundamental
Change Repurchase Price of or interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.


 


As provided in
the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate Principal Amount, will be issued to
the designated transferee or transferees.


 


The Securities
are issuable only in registered form in denominations of $2,000 and any
integral multiple of $1,000 above that amount, as provided in the Indenture and
subject to certain limitations therein set forth. Securities are exchangeable
for a like aggregate Principal Amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.


 


No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.


 


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


 


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


 


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


 


20

















 


ASSIGNMENT FORM


 


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


 


I or we assign
and transfer this Security to:


 


 


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


 


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


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  
								



 


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


 


21

















 


CONVERSION NOTICE


 


If you want to
convert this Security into Common Stock of the Company, check the box:  £


 


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


 


$                                                                   


 


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


 


 




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

  






 


 


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


 


	
  Date:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  
								



 


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


 


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


 


	
  Dated:

  	
   

  	
   

  	
  THE BANK OF
  NEW YORK TRUST

  
	
   

  	
  COMPANY,
  N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Authorized Signatory

  	
   

  



 


22
















 


ARTICLE III


 


The Securities


 


SECTION 3.01. Title and
Terms. The aggregate Principal Amount of Securities that may be
authenticated and delivered under this Indenture on the original Issue Date is
limited to $275,000,000 (subject to increase by up to $41,250,000 in the event
the Underwriter exercises the over-allotment option granted to it in the
Underwriting Agreement), except for Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 3.04, 3.05, 3.06, 9.06,
11.06 or 11.12.


 


Following the original Issue
Date, the Company shall be entitled to, without notice to or the consent of the
Holders of Securities, issue, in an unlimited aggregate principal amount,
additional Securities under this Indenture having the same terms as and ranking
equally and ratably with the Securities issued on the original Issue Date in
all respects, so that such additional Securities shall form a single series
with, and shall have the same terms as to status, redemption or otherwise as,
the Securities issued on the original Issue Date. Such additional Securities
may have CUSIP numbers that are the same as or different from the Securities
issued on the original Issue Date.


 


The Securities shall be known
and designated as the “3.50% Senior Convertible Notes Due 2038” of the Company.
The Principal Amount shall be payable at the Stated Maturity.


 


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


 


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


 


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


 


SECTION 3.02. Denominations.
The Securities shall be issuable only in registered form without coupons
and in denominations of $2,000 and any integral multiple of $1,000 above that
amount.


 


SECTION 3.03. Execution,
Authentication, Delivery and Dating. The Securities shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive
Officer, its Chief Financial Officer, its President or one of its Vice
Presidents.


 


23

















 


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


 


At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities. The
Company Order shall specify the amount of Securities to be authenticated, and
shall further specify the amount of such Securities to be issued as a Global
Security or as Physical Securities. The Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.


 


Each Security shall be dated
the date of its authentication.


 


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


 


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


 


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


 


SECTION 3.05. Registration;
Registration of Transfer and Exchange; Restrictions on Transfer. (a)  The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register maintained in
such office and in any other office or agency designated pursuant to Section 10.02
being herein sometimes collectively referred to as the “Security Register”)
in which, subject to such reasonable


 


24

















 


regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed “Security Registrar” (the “Security Registrar”) for the
purpose of registering Securities and transfers of Securities as herein
provided.


 


Upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 10.02 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate Principal Amount and tenor,
each such Security bearing such restrictive legends as may be required by this
Indenture (including Section 2.02).


 


At the option of the Holder
and subject to the other provisions of this Section 3.05 and to Section 3.09,
Securities may be exchanged for other Securities of any authorized denominations
and of a like aggregate Principal Amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.


 


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


 


Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.


 


No service charge shall be
made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 3.04
not involving any transfer.


 


The Company shall not be
required to exchange or register a transfer of any Security (i) during the
15-day period immediately preceding the mailing of any notice of redemption of
any Security, (ii) after any notice of redemption has been given to Holders,
except, where such notice provides that such Security is to be redeemed only in
part, the Company shall be required to exchange or register a transfer of the
portion thereof not to be redeemed, (iii) that has been surrendered for
conversion or (iv) as to which a Repurchase Notice or Fundamental Change
Repurchase Notice has been delivered and not withdrawn, except, where such
Repurchase Notice or Fundamental Change Repurchase Notice provides that such
Security is to be purchased only in part, the Company shall be required to
exchange or register a transfer of the portion thereof not to be purchased.


 


25

















 


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


 


SECTION 3.06. Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor and
Principal Amount and bearing a number not contemporaneously outstanding.


 


If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and Principal
Amount and bearing a number not contemporaneously outstanding.


 


In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable or has been called for redemption in full, the Company in its
discretion may, instead of issuing a new Security, pay such Security.


 


Upon the issuance of any new
Security under this Section 3.06, the Company may require payment
by the Holder of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.


 


Every new Security issued
pursuant to this Section 3.06 in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.


 


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


 


SECTION 3.07. Persons
Deemed Owners. Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of the principal of and
interest on such Security and for all other purposes whatsoever, whether or not
such Security shall be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.


 


26

















 


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


 


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


 


(b)  Transfers of the Global Securities shall be
limited to transfers in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred or exchanged, in whole or in part, for
Physical Securities in accordance with the rules and procedures of the
Depositary and the provisions of Section 3.09. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Securities if (A) such Depositary has
notified the Company (or the Company becomes aware) that the Depositary (i) is
unwilling or unable to continue as Depositary for such Global Security or (ii)
has ceased to be a clearing agency registered under the Exchange Act when the
Depositary is required to be so registered to act as such Depositary and, in
either such case, no successor Depositary shall have been appointed within 90
days of such notification or of the Company becoming aware of such event;
(B) there shall have occurred and be continuing an Event of Default with
respect to such Global Security and the Outstanding Securities shall have
become due and payable pursuant to Section 5.02 and the Trustee
requests that Physical Securities be issued; or (C) the Company, at its
option, notifies the Trustee that it elects to cause the issuance of Physical
Securities, subject to applicable procedures of the Depositary.


 


(c)  In connection with any transfer or exchange
of a portion of the beneficial interest in the Global Security to beneficial
owners pursuant to clause (b) of this Section 3.08, the
Security Registrar shall (if one or more Physical Securities are to be issued)
reflect on its books and records the date and a decrease in the Principal
Amount of the Global Security in an amount equal to the Principal Amount of the
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.


 


27

















 


(d)  In connection with the transfer of the entire
Global Security to beneficial owners pursuant to clause (b) of this Section 3.08,
the Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Global Security, an equal aggregate
Principal Amount of Physical Securities of authorized denominations and the
same tenor.


 


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


 


SECTION 3.09. Cancellation
and Transfer Provisions. The Company at any time may deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Trustee shall cancel
and dispose of all Securities surrendered for registration of transfer,
exchange, payment, purchase, repurchase, redemption, conversion (pursuant to Article 13
hereof) or cancellation in accordance with its customary practices. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation. The Company may not issue new Securities to replace Securities it
has paid in full or delivered to the Trustee for cancellation.


 


The Security Registrar shall
retain, in accordance with its customary procedures, copies of all letters,
notices and other written communications received pursuant to this Section 3.09.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.


 


SECTION 3.10. CUSIP
Numbers. In issuing the Securities, the Company may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers.


 


28

















 


ARTICLE IV


 


Satisfaction and Discharge


 


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


 


(a)
either


 


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


 


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


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.07 and, if money shall have been
deposited with the Trustee pursuant to clause (a)(ii) of Section 4.01,
the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive such satisfaction and
discharge.


 


SECTION 4.02. Application
of Trust Money. Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 4.01 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with the Trustee.


 


29

















 


ARTICLE V


 


Remedies


 


SECTION 5.01. Events of
Default. “Event of Default”, wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):


 


(a)
default in the payment of interest on any Securities when due and payable and
such default continues for a period of 30 days; or


 


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


 


(c)
default in the performance of any covenant, agreement or condition of the
Company in this Indenture or the Securities (other than a default specified in
clause (a) or (b) above), and such default continues for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate Principal Amount of the Outstanding Securities a written
notice specifying such default and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder; or


 


(d)
default in the Company’s obligation to convert the Securities into shares of
its Common Stock upon exercise of a Holder’s conversion rights in accordance
with Article 13 hereof and such default continues for a period of
10 days; or


 


(e)
default by the Company or any Subsidiary in the payment of the principal or
interest on any loan agreement or other instrument under which there may be
outstanding, or by which there may be evidenced, any debt for money borrowed in
excess of $50.0 million in the aggregate of the Company and its Subsidiaries
(other than indebtedness for borrowed money secured only by the real property
to which the indebtedness relates and which is non-recourse to the Company or
to such Subsidiary), whether such debt now exists or shall hereafter be
created, resulting in such debt becoming or being declared due and payable
prior to its stated maturity, and such acceleration shall not have been
rescinded or annulled within 60 days after written notice has been received by
the Company or such Subsidiary from the Trustee or by the Trustee, the Company
and such Subsidiary by the Holders of at least 25% in Principal Amount of
Outstanding Securities; provided that if any time before a judgment or
decree has been obtained by the Trustee as hereinafter provided, such default
is remedied or cured by the Company within the applicable cure period, or is
waived or rescinded by the holders of such indebtedness or is otherwise
annulled, default under this clause (e) shall be deemed to have been remedied,
cured, waived, rescinded or annulled, as the case may be; or


 


30

















 


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


 


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


 


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


 


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


 


Notwithstanding the
foregoing, in the case of an Event of Default specified in clauses (g) and (h)
of Section 5.01, the Principal Amount plus accrued and unpaid
interest on all Outstanding Securities will ipso  facto become due
and payable without any declaration or other Act on the part of the Trustee or
any Holder.


 


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(b)  At any time after such a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article 5
provided, the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if such rescission and
annulment will not conflict with any judgment or decree of a court of competent
jurisdiction and


 


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


 


(A) all overdue interest on the Securities,


 


(B) the Principal Amount plus accrued and unpaid interest, Redemption
Price, Repurchase Price or Fundamental Change Repurchase Price, as applicable,
on any Securities which have become due otherwise than by such declaration of
acceleration, and


 


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


 


(ii) all Events of Default, other than the non-payment of the Principal
Amount plus accrued and unpaid interest on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.12.


 


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


 


(c)           Notwithstanding anything to the contrary in this Section
5.02, to the extent the Company shall elect by written notice to the
Trustee and the Paying Agent on or prior to the close of business on the date
of occurrence of an Event of Default 
under Section 5.01(c) arising from the failure to comply
with Section 10.06, the sole remedy for such an Event of Default shall
for the first 90 days after the occurrence of such an Event of Default consist
exclusively of the right to receive additional interest on the Securities at an
annual rate of 0.25% of the Principal Amount of the Securities. If the Company
so elects, such additional interest shall accrue on all outstanding Securities
from and including the date on which such an Event of Default first occurs to
but not including the 91st day thereafter (or such earlier date on which such
Event of Default shall have been cured or waived in accordance herewith). On
such 91st day (or earlier, if such Event of Default is cured or waived prior to
such 91st day), such additional interest shall cease to accrue and, if such
Event of Default has not been cured or waived in


 


32

















 


accordance herewith prior to
such 91st day, the Securities shall be subject to acceleration as provided in Section
5.02(a). For the avoidance of doubt, such additional interest shall not
begin accruing until the Company shall have failed to comply with

Section 10.06(a) for a period of 90 days after the Notice of Default in
respect thereof shall have been given to the Company as provided in Section
5.01(c). In the event that the Company shall not have elected to pay the
additional interest in accordance with this Section 5.02(c) or, if
elected, shall fail to pay such additional interest in accordance with this Section
5.02(c), the Securities shall be subject to acceleration as provided in Section
5.02(a).


 


SECTION 5.03. Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants
that if a default is made in the payment of the Principal Amount plus accrued
and unpaid interest at the Maturity thereof or in the payment of the Redemption
Price, the Repurchase Price or the Fundamental Change Repurchase Price in
respect of any Security, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.


 


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


 


SECTION 5.04. Trustee May
File Proofs of Claim. In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.07.


 


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


 


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SECTION 5.05. Application
of Money Collected. Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money to Holders, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:


 


FIRST:  To the
payment of all amounts due the Trustee under Section 6.07;


 


SECOND:  To
the payment of the amounts then due and unpaid on the Securities for the
Principal Amount, Redemption Price, Repurchase Price, Fundamental Change
Repurchase Price or interest, as the case may be, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities; and


 


THIRD:  To the
Company.


 


SECTION 5.06. Limitation
on Suits. No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder (other
than in the case of an Event of Default specified in clause (a) or (b) of Section 5.01),
unless:


 


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


 


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


 


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


 


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


 


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


 


34

















 


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


 


SECTION 5.07. Unconditional
Right of Holders to Receive Payment. Notwithstanding any other provision of
this Indenture, the right of any Holder to receive payment of the Principal
Amount, Redemption Price, Repurchase Price, Fundamental Change Repurchase Price
or interest in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date,
Repurchase Date or Fundamental Change Repurchase Date, as applicable, and to
convert the Securities in accordance with Article 13, or to bring suit
for the enforcement of any such payment on or after such respective dates or
the right to convert, shall not be impaired or affected adversely without the
consent of such Holder.


 


SECTION 5.08. Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.


 


SECTION 5.09. Rights and
Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.


 


SECTION 5.10. Delay or
Omission Not Waiver. No delay or omission of the Trustee or of any Holder
of any Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.


 


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SECTION 5.11. Control by
Holders. The Holders of a majority in Principal Amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided that:


 


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


 


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


 


SECTION 5.12. Waiver of
Past Defaults. The Holders of not less than a majority in Principal Amount
of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default hereunder and its consequences, except a
Default:


 


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


 


(ii)
in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.


 


Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


SECTION 5.13. Undertaking
for Costs. In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, in either case in respect of the Securities, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of the suit, and the court may assess reasonable costs, including
reasonable attorney’s fees and expenses, against any party litigant in the suit
having due regard to the merits and good faith of the claims or defenses made
by the party litigant; but the provisions of this Section 5.13
shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in Principal Amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the Principal Amount or interest on any Security on or after
Maturity of such Security, or the Redemption Price, the Repurchase Price or the
Fundamental Change Repurchase Price, as applicable, when due.


 


SECTION 5.14. Waiver of
Stay or Extension Laws. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


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ARTICLE VI


 


The Trustee


 


SECTION 6.01. Certain
Duties and Responsibilities. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act. Except during the continuance
of an Event of Default, the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee.
In case an Event of Default with respect to the Securities has occurred (which
has not been cured or waived), the Trustee shall exercise the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers. Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 6.01.


 


SECTION 6.02. Notice of
Defaults. The Trustee shall give the Holders notice of any Default
hereunder within 60 days after the occurrence thereof; provided, that (except
in the case of any Default in the payment of Principal Amount or interest on
any of the Securities, Redemption Price, Repurchase Price or Fundamental Change
Repurchase Price), the Trustee shall be protected in withholding such notice if
and so long as a trust committee of directors or trustees and/or a Responsible
Officer of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of Securities.


 


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


 


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


 


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


 


37

















 


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


 


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


 


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


 


(f)
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit; and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;


 


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


 


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


 


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


 


38

















 


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


 


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


 


(l)
The permissive rights of the Trustee to take certain actions under this
Indenture shall not be construed as a duty unless so specified herein; and


 


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


 


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


 


SECTION 6.06. Money Held
in Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.


 


SECTION 6.07. Compensation
and Reimbursement. The Company agrees:


 


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


 


(ii)
except as otherwise expressly provided herein, to reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture 


 


39

















 


(including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be caused by its
negligence or willful misconduct; and


 


(iii)
to indemnify the Trustee and any predecessor Trustee for, and to hold it
harmless against, any loss, liability, claim, damage or expense including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee) incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself against any
claim (whether assessed by the Company, by any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.


 


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


 


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


 


SECTION 6.09. Corporate
Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has, or whose parent banking company has, a
combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this Section 6.09,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.


 


SECTION 6.10. Resignation
and Removal; Appointment of Successor.


 


(a)  No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article 6
shall become effective until the acceptance of appointment by the successor
Trustee under Section 6.11.


 


40

















 


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


 


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


 


(d)  If at any time:


 


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


 


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


 


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


 


(iv)
a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,


 


then, in any such case,
(A) the Company by a Company Order may remove the Trustee, or
(B) subject to Section 5.13, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of such Holder
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.


 


(e)  If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Company Order, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in Principal Amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


41
















 


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


 


SECTION 6.11.  Acceptance of Appointment by Successor.  Every successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.  Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.


 


No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article 6.


 


SECTION 6.12.  Merger, Conversion, Consolidation or
Succession to Business.  Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee by sale or otherwise, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article 6,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.  In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.


 


SECTION 6.13.  Preferential Collection of Claims Against.  If and when the Trustee shall be or become a
creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).


 


42





















 


ARTICLE VII


 


Holders’ Lists and Reports
By Trustee


 


SECTION 7.01.  Company to Furnish Trustee Names and
Addresses of Holders.  The Company
will furnish or cause to be furnished to the Trustee:


 


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


 


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


 


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


 


SECTION 7.02.  Preservation of Information;
Communications to Holders.  (a)  The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.01
and the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar.  The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.


 


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


 


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


 


SECTION 7.03.  Reports By Trustee.  (a) 
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.  Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted
no later than May 15 in each calendar year, commencing on May 15, 2008.  Each such report shall be dated as of a date
not more than 60 days prior to the date of transmission.


 


(b)  A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company.  The Company will
notify the Trustee when the Securities are listed on any stock exchange or of
any delisting thereof.


 


SECTION 7.04.  [Reserved]


 


43

















 


ARTICLE VIII


 


Consolidation, Merger,
Conveyance, Transfer or Lease


 


SECTION 8.01.  Company May Consolidate, etc., Only on
Certain Terms.  The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:


 


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


 


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


 


(c)
the Company or the Surviving Entity has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article 8 and Article 9, respectively.


 


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


 


44

















 


ARTICLE IX


 


Supplemental Indentures


 


SECTION 9.01.  Supplemental Indentures Without Consent of
Holders.  Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:


 


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


 


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


 


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


 


(iv)
 to cure any ambiguity or defect or to
correct or supplement any provision herein which may be inconsistent with any
other provision herein; or


 


(v)
  to
add any additional Events of Default for the benefit of the Holders; or


 


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


 


(vii)
 to increase the Conversion Rate of the
Securities; provided, however, that such increase shall be in
accordance with the terms of this Indenture or shall not adversely affect the
interests of the Holders of the Securities; or


 


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


 


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


 


(x)
  to provide for or add guarantors of the
Securities; or


 


(xi)
 to maintain the qualification of this
Indenture under the Trust Indenture Act.


 


45

















 


SECTION 9.02.  Supplemental Indentures With Consent of
Holders.  With the consent of the
Holders of not less than a majority in Principal Amount of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,


 


(i)
  reduce
the rate of or extend the time for payment of interest on any Security; or


 


(ii)
 reduce the Principal Amount of, or
extend the Stated Maturity of, any Security; or


 


(iii)
make any change that impairs or adversely affects the conversion rights of any
Securities; or


 


(iv)
 reduce the Redemption Price, the
Repurchase Price or Fundamental Change Repurchase Price of any Security or
amend or modify in any manner adverse to the Holders of Securities the Company’s
obligation to make such payments, whether through an amendment or waiver of provisions
in the covenants, definitions or otherwise; or


 


(v)
  modify
the provisions with respect to the right of Holders to cause the Company to
repurchase Securities upon a Fundamental Change in a manner adverse to Holders
of Securities; or


 


(vi)
 make any interest or principal on a
Security payable in money other than that stated in the Security or other than
in accordance with the provisions of this Indenture; or


 


(vii)
impair the right of any Holder to receive payment of the Principal Amount of or
interest on a Holder’s Securities on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to such
Holder’s Securities; or


 


(viii)
reduce the quorum or voting requirements under this Indenture; or


 


(ix)
  change
the ranking of the Securities in a manner adverse to the Holders of the
Securities; or


 


(x)
   make any change in the amendment provisions
which require each Holder’s consent or in the waiver provisions; or


 


46

















 


(xi)
reduce the percentage in Principal Amount of the Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture.


 


It shall not be necessary
for any Act of Holders under this Section 9.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.


 


SECTION 9.03.  Execution of Supplemental Indentures.  In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article 9
or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be provided with, and (subject to Section 6.01) shall
be fully protected in relying upon, in addition to the documents required by Section 1.02,
an Opinion of Counsel and an Officers’ Certificate, each stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture.  Subject to the preceding
sentence, the Trustee shall sign such supplemental indenture if the same does
not adversely affect the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.  The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture that
adversely affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise.


 


SECTION 9.04.  Effect of Supplemental Indentures.  Upon the execution of any supplemental
indenture under this Article 9, 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 9.05.  Conformity with Trust Indenture Act.  Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act.


 


SECTION 9.06.  Reference in Securities to Supplemental
Indentures.  Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to
this Article 9 shall bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.


 


ARTICLE X


 


Covenants


 


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


 


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


 


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


 


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


 


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


 


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


 


The Company shall cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 10.03, that such Paying Agent will
(i) comply with the provisions of the Trust Indenture Act applicable to it as a
Paying


 


48

















 


Agent and (ii) during the
continuance of any Default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.


 


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


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
making of payments in respect of any Security and remaining unclaimed for two
years after such payment has become due shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York or San Francisco, California, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining shall be repaid to the Company. 
In the absence of a written request from the Company to return funds
remaining unclaimed for two years after such payment has become due to the
Company, the Trustee shall from time to time deliver all unclaimed payments to
or as directed by applicable escheat authorities, as determined by the Trustee
in its sole discretion, in accordance with the customary practices and
procedures of the Trustee.  Any such
unclaimed funds held by the Trustee pursuant to this Section 10.03
shall be held uninvested and without any liability for interest.


 


SECTION 10.04.  Statement by Officers as to Default.  The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after
the date hereof, an Officers’ Certificate, stating whether or not to the
knowledge of the signers thereof the Company is in Default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in Default, specifying all such
Defaults and the nature and status thereof of which they may have knowledge.


 


The Company shall deliver to
the Trustee, as soon as possible and in any event within 30 days after the
Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an


 


49

















 


Event of Default, an
Officers’ Certificate setting forth the details of such Event of Default or
default and the action which the Company is taking or proposes to take with
respect thereto.


 


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


 


SECTION 10.06.  Reports and Delivery of Certain Information.  (a) 
The Company shall comply with Section 314(a) of the Trust Indenture Act
as it relates to reports, information and documents that the Company may be
required to file with the Trustee pursuant to such Section 314(a) and with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act or otherwise by
the Exchange Act, the Trust Indenture Act or other rules and regulations of the
Commission, and shall file such reports, information and documents with the
Trustee within 30 calendar days after the same are filed with the Commission; provided
that in each case the delivery of materials to the Trustee by electronic means
or filing of documents pursuant to the Commission’s “EDGAR” system (or any
successor electronic filing system) shall be deemed to constitute “filing” with
the Trustee for purposes of this

Section 10.06. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).


 


(b)  The Company shall file with the Trustee and
the Commission and transmit to Holders such other information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act.


 


SECTION 10.07.  [Reserved]


 


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


 


SECTION 10.09.  Information for IRS Filings.  The Company shall provide to the Trustee on a
timely basis such information as the Trustee requires to enable the Trustee to
prepare and file any form required to be submitted by the Company with the
Internal Revenue Service and the Holders of the Securities.


 


50

















 


ARTICLE XI


 


Redemption and Repurchases


 


SECTION 11.01.  Right to Redeem; Notices to Trustee.  Prior to January 15, 2013, the
Securities are not redeemable.  At any
time on or after January 15, 2013, the Securities are redeemable as a
whole, or from time to time in part, at the option of the Company at the
Redemption Price.


 


The Company shall give
notice to the Trustee of its election to redeem Securities by a Company Order,
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 11.02.  Selection of Securities to be Redeemed.  If less than all the Securities are to be
redeemed, the Trustee shall select the Securities to be redeemed pro rata or by
lot or by any other method the Trustee considers fair and appropriate (so long
as such method is not prohibited by the rules of any stock exchange on which
the Securities are then listed).  The
Trustee shall make the selection within seven days from its receipt of the
notice from the Company delivered pursuant to the second paragraph of Section 11.01
from Outstanding Securities not previously called for redemption.


 


Securities and portions of
them the Trustee selects shall be in Principal Amounts of $1,000 or integral
multiples of $1,000.  Provisions of this
Indenture that apply to Securities called for redemption in whole also apply to
Securities called for redemption in part. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.


 


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 to be the portion selected for
redemption.  Securities which 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 11.03.  Notice of Redemption.  At least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption 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:


 


   (i) the Redemption Date;


 


  (ii) the Redemption Price;


 


 (iii) the Conversion Rate;


 


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


 


51

















 


(v)
  that Securities called for redemption
may be converted at any time before the close of business on the Business Day
immediately preceding the Redemption Date;


 


(vi)
 that Holders who want to convert
Securities must satisfy the requirements set forth therein and in this
Indenture;


 


(vii)
 that Securities called for redemption
must be surrendered to the Paying Agent for cancellation to collect the
Redemption Price;


 


(viii)
if fewer than all the outstanding Securities are to be redeemed, the
certificate number (if such Securities are held other than in global form) and
Principal Amount of the particular Securities to be redeemed;


 


(ix)
 that, unless the Company defaults in
making payment of such Redemption Price, interest will cease to accrue on and
after the Redemption Date; and


 


(x)
  the
CUSIP number of the Securities.


 


At the Company’s written
request delivered at least 30 days prior to the date such notice is to be given
(unless a shorter time period shall be acceptable to the Trustee), the Trustee
shall give the notice of redemption in the Company’s name and at the Company’s
expense.


 


SECTION 11.04.  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 which
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.


 


SECTION 11.05.  Deposit of Redemption Price.  Prior to 10:00 a.m. (New York City time) on a
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.  The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Securities pursuant to Article 13.  If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.


 


SECTION 11.06.  Securities Redeemed in Part.  Upon surrender of a Security that is redeemed
in part, the Company shall execute and the Trustee shall 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. The


 


52

















 


Company shall not be required to (i) issue, register the transfer of,
or exchange any Securities during a period of 15 days before the Redemption
Date or (ii) register the transfer of, or exchange any, Securities so selected
for redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part.


 


SECTION 11.07.  [Reserved]


 


SECTION 11.08.  Repurchase of Securities at Option of the
Holder.  


 


(a)  General.  Securities shall be repurchased by the
Company pursuant to the terms thereof on January 15, 2013, January 15, 2018 and
January 15, 2028 (each, a “Repurchase Date”), at the Repurchase Price,
at the option of the Holder thereof, in accordance with the following procedures.


 


(b)  Company Notice.  The Company shall deliver a notice (the “Company
Notice”) to the Trustee, the Paying Agent and Holders (and to beneficial
owners as required by applicable law) not less than 30 Business Days prior to
such Repurchase Date (the “Company Notice Date”).  The Company Notice shall include a form of
Repurchase Notice to be completed by a Securityholder and shall state:


 


(i)   the Repurchase Price and the Conversion Rate
applicable on the Company Notice Date;


 


(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 by
the Holder may be converted pursuant to Article 13 only 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 for
cancellation to collect payment;


 


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


 


(vi)  the procedures the Holder
must follow to exercise rights under this Section 11.08 and a brief
description of those rights;


 


(vii) the conversion rights of the Securities;


 


(viii) the procedures for withdrawing a Repurchase Notice;


 


53

















 


(ix) that, unless the Company defaults in making payment of the
Repurchase Price, interest on Securities covered by the Repurchase Notice will
cease to accrue on and after the Repurchase Date; and


 


(x)  the CUSIP number of the
Securities.


 


At least three Business Days
before the Company Notice Date, the Company shall deliver an Officers’
Certificate to the Trustee specifying whether the Company desires the Trustee
to give the Company Notice.  At the
Company’s request, the Trustee shall give such Company Notice in the Company’s
name and at the Company’s expense; provided that in all cases the text
of such Company Notice shall be prepared by the Company. On or before the
Company Notice Date, the Company shall publish a notice containing
substantially the same information that is required in the Company Notice in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in The City of New York, or publish
such information on the Company’s website or through such other public medium
as the Company may use at such time.


 


(c)  Repurchase Notice.  Holders must deliver to the Paying Agent:


 


(1) a written notice of repurchase (a “Repurchase
Notice”), substantially in the form of Exhibit A hereto, at any time
from the opening of business on the date that is 30 Business Days prior to a
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date stating:


 


(A) the certificate number (if such Security is held other than in
global form) of the Security which the Holder will deliver to be repurchased
or, if such Security is held in global form, such Holder must comply with
applicable Depositary procedures;


 


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


 


(C) that such Security shall be repurchased as of the Repurchase Date
pursuant to the terms and conditions specified in the Securities and in this
Indenture; and


 


(2) the Security (if such Security is held in
other than global form) or book-entry transfer of the interest therein (if such
Security is held in global form) to the Paying Agent for cancellation prior to,
on or after the Repurchase Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Repurchase Price therefor; provided that such
Repurchase Price shall be so paid pursuant to this Section 11.08
only if the Security so delivered or transferred to the Paying Agent shall
conform in all respects to the description thereof in the related Repurchase
Notice.


 


54

















 


The Company shall purchase
from the Holder thereof, pursuant to this Section 11.08, a portion
of a Security if the Principal Amount of such portion is $1,000 or an integral
multiple of $1,000 if so requested by the Holder.  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.


 


Any repurchase by the
Company contemplated pursuant to the provisions of this Section 11.08
shall be consummated by the delivery to the Paying Agent of the consideration
to be received by the Holder promptly following the later of the Repurchase
Date and the time of delivery of the Security or book-entry transfer of the
interest therein.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this clause (c) shall have the right to
withdraw such Repurchase Notice at any time prior to the close of business on
the Business Day prior to the Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 11.10.


 


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


 


(d)  Payment of Repurchase Price.  The Securities to be repurchased pursuant to
clause (a) of Section 11.08 shall be paid for in cash in an amount
equal to the Repurchase Price.


 


(e)  Procedures Upon Repurchase.  The Company shall deposit cash at the time
and in the manner as provided in Section 11.11, sufficient to pay
the aggregate Repurchase Price of all Securities to be purchased pursuant to
this Section 11.08.


 


SECTION 11.09.  Repurchase of Securities at Option of the
Holder Upon Fundamental Change.  


 


(a)  General.  If prior to the Stated Maturity there shall
have occurred a Fundamental Change, Securities shall be repurchased by the
Company at the Fundamental Change Repurchase Price on a Business Day specified
by the Company that is not less than 25 days nor more than 35 days after the
date of the mailing of a Fundamental Change Company Notice pursuant to clause
(b) of this Section 11.09 (the “Fundamental Change Repurchase
Date”), at the option of the Holder thereof, in accordance with the
following procedures.


 


55

















 


(b)  Company Notice of Fundamental Change.  Within 15 days after the occurrence of a
Fundamental Change, the Company shall deliver a written notice of the
Fundamental Change and of the resulting repurchase right (the “Fundamental
Change Company Notice”) by first-class mail or by overnight courier to the
Trustee, the Paying Agent and each Holder (and to beneficial owners as required
by applicable law).  The notice shall
include a form of Fundamental Change Repurchase Notice to be completed by the
Securityholder and shall state:


 


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


 


(ii)
the date by which a Holder must deliver a Fundamental Change Repurchase Notice
to elect the repurchase option pursuant to this Section 11.09;


 


(iii)
the Fundamental Change Repurchase Date;


 


(iv)
the Fundamental Change Repurchase Price;


 


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


 


(vi)
the Conversion Rate applicable on the date of the Fundamental Change Company
Notice, and, if applicable, any adjustments thereto;


 


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


 


(viii)
that Securities must be surrendered to the Paying Agent for cancellation or
transferred to the Paying Agent by book-entry transfer to collect payment;


 


(ix)
that the Fundamental Change Repurchase Price for any Security as to which a
Fundamental Change Repurchase Notice has been duly given and not withdrawn will
be paid promptly following the later of the Fundamental Change Repurchase Date
and the time of surrender of such Security or book-entry transfer of an
interest therein as described in clause (viii) above;


 


(x)
 the procedures the Holder must follow to
exercise rights under this Section 11.09;


 


(xi)
the conversion rights of the Securities;


 


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


 


(xiii)
that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, Securities covered by any Fundamental Change Repurchase
Notice will cease to be outstanding and interest will cease to accrue on and
after the Fundamental Change Repurchase Date; and


 


(xiv)
the CUSIP number of the Securities.


 


56

















 


At the Company’s request,
the Trustee shall give such Fundamental Change Company Notice in the Company’s
name and at the Company’s expense; provided that, in all cases, the text
of such Fundamental Change Company Notice shall be prepared by the
Company.  Simultaneously with delivery of
the Fundamental Change Company Notice to the Holders, the Company shall publish
a notice containing substantially the same information that is required in the
Fundamental Change Company Notice in a newspaper published in the English
language, customarily published each Business Day and of general circulation in
The City of New York, or publish such information on the Company’s website or
through such other public medium as the Company may use at such time.


 


(c)  Fundamental Change Repurchase Notice.  Holders must deliver to the Paying Agent:


 


(1)           a
written notice of repurchase (a “Fundamental Change Repurchase Notice”),
substantially in the form of Exhibit B hereto, at any time from the
opening of business on the date of the Fundamental Change Company Notice until
the close of business on the Business Day immediately prior to the Fundamental
Change Repurchase Date (subject to extension to comply with applicable law)
stating:


 


(A) the certificate number (if such Security is held other than in
global form) of the Security which the Holder will deliver to be repurchased
or, if such Security is held in global form, such Holder must comply with
applicable Depositary procedures;


 


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


 


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


 


(2)           the
Security (if such Security is held other than in global form) or book-entry
transfer of the interest therein (if such Security is held in global form) to
the Paying Agent for cancellation prior to, on or after the Fundamental Change
Repurchase Date (together with all necessary endorsements) at the offices of
the Paying Agent, such delivery being a condition to receipt by the Holder of
the Fundamental Change Repurchase Price therefor; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant to this Section 11.09
only if the Security so delivered or transferred to the Paying Agent shall
conform in all respects to the description thereof in the related Fundamental
Change Repurchase Notice.


 


57

















 


The Company shall purchase
from the Holder thereof, pursuant to this Section 11.09, a portion
of a Security if the Principal Amount of such portion is $1,000 or an integral
multiple of $1,000 if so requested by the Holder.  Provisions of this Indenture that apply to
the repurchase of all of a Security also apply to the repurchase of such
portion of such Security.


 


Any repurchase by the
Company contemplated pursuant to the provisions of this Section 11.09
shall be consummated by the delivery to the Paying Agent of the consideration
to be received by the Holder promptly following the later of the Fundamental
Change Repurchase Date and the time of delivery of the Security or book-entry
transfer of the interest therein.


 


Notwithstanding anything
herein to the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this Section 11.09(c)
shall have the right to withdraw such Fundamental Change Repurchase Notice at
any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 11.10.


 


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


 


(d)  Payment of Fundamental Change Repurchase
Price.  The Securities to be
repurchased pursuant to this Section 11.09 shall be paid for in
cash in an amount equal to the Fundamental Change Repurchase Price.


 


(e)  Procedure Upon Repurchase.  The Company shall deposit cash, at the time
and in the manner as provided in Section 11.11, sufficient to pay the
aggregate Fundamental Change Repurchase Price of all Securities to be purchased
pursuant to this Section 11.09.


 


SECTION 11.10.  Effect of Repurchase Notice or Fundamental
Change Repurchase Notice.  Upon
receipt by the Paying Agent of the Repurchase Notice or Fundamental Change
Repurchase Notice specified in clause (b) of Section 11.08 or
clause (b) of Section 11.09, as applicable, the Holder of the
Security in respect of which such Repurchase Notice or Fundamental Change
Repurchase Notice, as the case may be, was given shall (unless such Repurchase
Notice or Fundamental Change Repurchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Repurchase Price or Fundamental Change Repurchase Price, as the case may be,
with respect to such Security. Such Repurchase Price or Fundamental Change
Repurchase Price shall be paid to such Holder, subject to receipt of funds by
the Paying Agent, promptly following the later of (x) the Repurchase Date or
the Fundamental Change Repurchase Date, as the case may be, with respect to
such Security (provided the conditions in clause (b) of Section 11.08
or clause (b) of Section 11.09, as applicable, have been satisfied)
and (y) the time of delivery or book-entry transfer of such Security to the
Paying Agent by the Holder thereof in the manner required by clause (b) of Section 11.08
or clause (b) of Section 11.09, as applicable. Securities in
respect of


 


58

















 


which a Repurchase Notice or Fundamental Change Repurchase Notice, as
the case may be, has been given by the Holder thereof may not be converted
pursuant to Article 13 on or after the date of the delivery of such
Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be,
unless such Repurchase Notice or Fundamental Change Repurchase Notice, as the
case may be, has first been validly withdrawn as specified in the following two
paragraphs.


 


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


 


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


 


(ii)
the certificate number (if such Security is held in other than global form) of
the Security in respect of which such notice of withdrawal is being submitted
or, if such Security is held in global form, the Holder must comply with
applicable Depositary procedures; and


 


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


 


There shall be no repurchase
of any Securities pursuant to Section 11.08 or 11.09 if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Repurchase Notice or
Fundamental Change Repurchase Notice, as the case may be) and is continuing an
Event of Default (other than a default in the payment of the Repurchase Price
or Fundamental Change Repurchase Price, as the case may be, with respect to
such Securities).  The Paying Agent will
promptly return to the respective Holders thereof any Securities (x) with
respect to which a Repurchase Notice or Fundamental Change Repurchase Notice,
as the case may be, 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 or Fundamental Change Repurchase
Price, as the case may be, with respect to such Securities) in which case, upon
such return, the Repurchase Notice or Fundamental Change Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.


 


SECTION 11.11.  Deposit of Repurchase Price or Fundamental
Change Repurchase Price.  Prior to
10:00 a.m. (local time in The City of New York) on the Business Day following
the Repurchase Date or the Fundamental Change Repurchase Date, as the case may
be, the Company shall deposit with the Trustee or with the Paying


 


59

















 


Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided herein) an amount of money (in immediately available funds if
deposited on such Business Day) sufficient to pay the Repurchase Price or the
Fundamental Change Repurchase Price, as the case may be, of all the Securities
or portions thereof which are to be repurchased as of the Repurchase Date or
the Fundamental Change Repurchase Date, as applicable.  The Company shall promptly notify the Trustee
in writing of the amount of any deposits of cash or Common Stock made pursuant
to Section 11.11.


 


SECTION 11.12.  Securities Repurchased in Whole or in
Part.  Any Security which is to be
repurchased, whether in whole or in part, shall be surrendered at the office of
the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the Security so
surrendered which is not repurchased.


 


SECTION 11.13.  Covenant to Comply With Securities Laws
Upon Repurchase of Securities.  In
connection with any offer to repurchase Securities under Section 11.08
or 11.09 (provided that such offer or repurchase constitutes an “issuer
tender offer” for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or repurchase), the Company shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights
and obligations under Section 11.08 or 11.09 to be exercised
in the time and in the manner specified in Section 11.08 or 11.09,
as applicable.


 


SECTION 11.14.  Repayment to the Company.  The Trustee and the Paying Agent shall return
to the Company any cash that remains unclaimed, together with interest, if any,
thereon, held by them for the payment of the Repurchase Price or Fundamental
Change Repurchase Price, as the case may be; provided that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section 11.11
exceeds the aggregate Repurchase Price or Fundamental Change Repurchase Price,
as the case may be, of the Securities or portions thereof which the Company is
obligated to repurchase as of the Repurchase Date or Fundamental Change
Repurchase Date, as the case may be, then as soon as practicable following the
Repurchase Date or Fundamental Change Repurchase Date, as the case may be, the Trustee
or the Paying Agent, as the case may be, shall return any such excess to the
Company.


 


60

















 


ARTICLE XII


 


Interest Payments on the
Securities


 


SECTION 12.01.  Interest Rate.  (a) 
Interest on the Securities shall accrue at a rate of 3.50% per annum and
shall be payable semi-annually in arrears on each Interest Payment Date to
holders of record on the Record Date immediately preceding such Interest
Payment Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Interest on the Securities shall accrue from
the most recent date to which interest has been paid, or if no interest has
been paid, from the Issue Date, until the Principal Amount is paid or duly made
available for payment.


 


(b)  Interest on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security is registered at the close of
business on the Record Date for such interest at the office or agency of the
Company maintained for such purpose. Each installment of interest on any
Security shall be made by check mailed to the address of the Holder specified
in the register of Securities; provided, however, that, with respect
to any Holder of Securities with an aggregate Principal Amount in excess of
$2,000,000, at the request of such Holder in writing to the Company, interest
on such Holder’s Securities shall be paid by wire transfer in immediately
available funds in accordance with the written wire transfer instruction
supplied by such Holder from time to time to the Trustee and Paying Agent (if
different from the Trustee) at least ten days prior to the applicable Interest
Payment Date. In the case of a permanent Global Security, interest payable on
any Interest Payment Date will be paid to the Depositary, with respect to that
portion of such permanent Global Security held for its account by Cede &
Co. for the purpose of permitting such party to credit the interest received by
it in respect of such permanent Global Security to the accounts of the
beneficial owners thereof.


 


(c)  The foregoing references to “interest on the
Securities” in this Section 12.01 do not refer to any additional
interest payable pursuant to Section 5.02 of this Indenture; any such
additional interest shall be payable, if at all, in accordance with Section
5.02.  Unless expressly stated or the
context otherwise requires, all other references in this Indenture to interest
on the Securities shall include additional interest then accrued or accruing
pursuant to Section 5.02(c).


 


ARTICLE XIII


 


Conversion


 


SECTION 13.01.  Conversion Privilege.  (a) 
Subject to the further provisions of this Article 13, a
Holder of a Security may convert, at its election, the Principal Amount of such
Security (or a portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into Common Stock at any time and from time to time
prior to the close of business on January 14, 2038.


 


61

















 


(b)  Conversion Period.  Notwithstanding the foregoing, if such
Security is called for redemption or submitted or presented for repurchase
pursuant to Article 11, such conversion right shall terminate at
the close of business on the Business Day prior to the Redemption Date,
Repurchase Date or Fundamental Change Repurchase Date, as the case may be, for
such Security (unless the Company shall default on payment of the Redemption
Price, Repurchase Price or Fundamental Change Repurchase Price, as applicable,
when due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Security is redeemed or
repurchased).


 


(c)  Conversion Rate; Conversion Price.  The conversion rate per Security (the “Conversion
Rate”) shall initially be 33.1991 shares of Common Stock per $1,000
Principal Amount of Securities, subject to adjustment as set forth in this Article 13.  The “Conversion Price” at any
particular time is determined by dividing $1,000 by the then-applicable
Conversion Rate.


 


(d)  Securities Converted in Whole or in Part.  Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.


 


(e)  Rights of Holders.  A Holder of Securities is not entitled to any
rights of a holder of Common Stock until such Holder has converted its
Securities to Common Stock, and only to the extent such Securities are deemed
to have been converted into Common Stock pursuant to this Article 13.


 


SECTION 13.02.  Conversion Procedure.  


 


(a)  To convert a Security, a Holder must
(i) complete and manually sign the conversion notice on the back of the
Security or facsimile of the conversion notice and deliver such notice to a
Conversion Agent, (ii) surrender the Security to a Conversion Agent (if
not in global form), (iii) furnish appropriate endorsements and transfer
documents if required by a Registrar or a Conversion Agent and (iv) pay
any transfer or similar tax, if required. 
Such notice is hereinafter referred to as a “Notice of Conversion.”  A Security shall be deemed to have been
converted as of the close of business on the date (the “Conversion Date”)
on which the Holder has complied with the immediately preceding sentence of
this clause (a) of Section 13.02. 
Anything herein to the contrary notwithstanding, in the case of Global
Securities, a Notice of Conversion shall be delivered and such Securities shall
be surrendered for conversion in accordance with the rules and procedures of the
Depositary as in effect from time to time.


 


(b)  The Company will, as soon as practicable
after the Conversion Date, issue, or cause to be issued, and deliver to the
Conversion Agent or to such Holder, or such Holder’s nominee or nominees,
certificates for the number of full shares of Common Stock to which such Holder
shall be entitled.  The Person or Persons
entitled to receive such Common Stock upon such conversion shall be treated for
all purposes as the record holder or holders of such Common Stock, as of the
close of business on the applicable Conversion Date; provided, however,
that no surrender of a Security on any date when the stock transfer books of
the Company shall be closed shall be effective to


 


62

















 


constitute the Person or Persons entitled to receive the shares of
Common Stock upon such conversion as the record holder or holders of such
shares of Common Stock on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such shares of Common
Stock as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are
open; provided further that such conversion shall be at the Conversion
Rate in effect on the Conversion Date as if the stock transfer books of the
Company had not been closed.  Upon
conversion of a Security, such Person shall no longer be a Holder of such
Security.  Except as otherwise provided
in Section 13.06, no payment or adjustment will be made for
dividends or distributions on shares of Common Stock issued upon conversion of
a Security.


 


All Securities or portions
thereof surrendered for conversion during the period from the close of business
on the Record Date for any Interest Payment Date to the close of business on
the Business Day next preceding such Interest Payment Date shall be accompanied
by payment, in funds acceptable to the Company, of an amount equal to the
interest otherwise payable on such Interest Payment Date on the Principal
Amount being converted; provided, however, that no such payment
need be made (A) in respect of conversions following the Record Date
immediately preceding the Stated Maturity, (B) if the Company shall have
specified a Redemption Date or Fundamental Change Repurchase Date that is after
a Record Date and on or prior to the immediately following Interest Payment
Date or (C) to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such Security.


 


(c)  If a Holder converts more than one Security
at the same time, the number of shares of Common Stock issuable upon the
conversion shall be based on the aggregate Principal Amount of Securities
converted.


 


(d)  Upon surrender of a Security that is
converted in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder, a new Security equal in principal
amount to the unconverted portion of the Security surrendered.


 


(e)  Holders that have already delivered a
Repurchase Notice or Fundamental Change Repurchase Notice with respect to a
Security may not surrender such Security for conversion until the Repurchase
Notice or Fundamental Change Repurchase Notice, as the case may be, has been
withdrawn in accordance with the procedures set forth in Section 11.10.


 


SECTION 13.03.  Fractional Shares.  The Company will not issue fractional shares
of Common Stock upon conversion of Securities. 
In lieu thereof, the Company will pay an amount in cash for the current
market value of the fractional shares. 
The current market value of a fractional share shall be determined
(calculated to the nearest 1/1000th of a share) by multiplying the Last
Reported Sale Price of the Common Stock on the Trading Day immediately prior to
the Conversion Date by such fractional share and rounding the product to the
nearest whole cent.


 


63

















 


SECTION 13.04.  Taxes on Conversion.  If a Holder converts a Security, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issuance of shares of Common Stock upon such conversion.  However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name
other than the Holder’s name.  The
Conversion Agent may refuse to deliver the certificate representing the Common
Stock being issued in a name other than the Holder’s name until the Conversion
Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder’s name.  Nothing herein shall preclude any tax
withholding required by law or regulation.


 


SECTION 13.05.  Company to Provide Stock.


 


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 into shares of Common Stock (including after taking into
account any adjustments to the Conversion Rate pursuant to Section 13.06).


 


All shares of Common Stock
delivered upon conversion of the Securities shall be newly issued shares, shall
be duly authorized, validly issued, fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse claim.


 


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 quoted such shares of Common Stock on each
national securities exchange or on the New York Stock Exchange, the NASDAQ
Global Select Market or other over-the-counter market or such other market on
which the Common Stock is then listed or quoted; provided, however,
that if rules of such automated quotation system or exchange permit the Company
to defer the listing of such Common Stock until the first conversion of the
Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Notes in accordance with the requirements of such automated
quotation system or exchange at such time.  



 


64

















 


SECTION 13.06.  Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted from
time to time by the Company as follows:


 


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


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to such event;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR'

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately after such event;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS'

  	
   

  	
  =

  	
   

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

  



 


 


An adjustment made pursuant
to this subsection (a) shall become effective immediately after the record
date in the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of subdivision or combination.


 


(b)  If the Company issues to all or substantially
all holders of its Common Stock any rights or warrants entitling them for a
period of not more than 60 days after the Ex-dividend Date for such issuance to
subscribe for or purchase shares of Common Stock at a price per share less than
the Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the time of announcement of such issuance, the Conversion Rate shall
be adjusted based on the following formula (provided that the Conversion
Rate shall be readjusted to the extent that such rights or warrants are not
exercised prior to their expiration):


 





 


where,


 


	
  CR0

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect immediately prior to the Ex-dividend Date for such event;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CR'

  	
   

  	
  =

  	
   

  	
  the Conversion Rate in
  effect on and immediately after the Ex-dividend Date for such event;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OS0

  	
   

  	
  =

  	
   

  	
  the number of shares of
  Common Stock outstanding immediately prior to the Ex-dividend Date for such
  event;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  X

  	
   

  	
  =

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Y

  	
   

  	
  =

  	
   

  	
  the number of shares of Common Stock equal to the
  aggregate price payable to exercise such rights or warrants divided by the
  average of the Last Reported Sale Prices of the Common Stock over the ten
  consecutive Trading Day period ending on the Trading Day immediately
  preceding the Ex-dividend Date for such distribution.

  



 


65
















 


Such adjustment shall be
made successively whenever any such rights or warrants are issued, and shall
become effective on the Ex-dividend Date of such issuance.


 


(c)  If the Company distributes shares of its
Capital Stock, evidences of its indebtedness or other assets or property to all
or substantially all holders of the Common Stock, excluding (1) dividends,
distributions and rights or warrants referred to in clause (a) or (b) above and
(2) dividends or distributions in cash referred to in clause (d) below, then
the Conversion Rate shall be adjusted based on the following formula:


 





 


where,


 


CR0    =         the Conversion
Rate in effect immediately prior to the Ex-dividend Date for such distribution;


 


CR'     =         the Conversion
Rate in effect on and immediately after the Ex-dividend Date for such
distribution;


 


SP0    =         the average of
the Last Reported Sale Prices of the Common Stock over the ten consecutive
Trading Day period ending on the Trading Day immediately preceding the
Ex-dividend Date for such distribution; and


 


FMV  =         the fair market value (as determined by
the Board of Directors of the Company) of the shares of 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.


 


Such adjustment shall be
made successively whenever any such distribution is made and shall become
effective on the Ex-dividend Date for such distribution. In the event that such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such dividend or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of this Section
13.06 by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the
same period used in computing the market price of the Common Stock as provided
above.


 


In the event that the
Company has in effect a preferred shares rights plan (“Rights Plan”),
upon conversion of the Securities into Common Stock, to the extent that the
Rights Plan is still in effect upon such conversion, the Holders of Securities
shall receive, in addition to the Common Stock, the rights described therein
(whether or not the 


 


66

















 


rights have separated from
the Common Stock at the time of conversion), subject to the limitations set
forth in the Rights Plan. If the Rights Plan provides that upon separation of
rights under such plan from the Common Stock that the Holders would not be
entitled to receive any such rights in respect of the Common Stock issuable
upon conversion of the Securities, the Conversion Rate shall be adjusted as
provided in this Section 13.06(c) (with such separation deemed to be the
distribution of such rights), subject to readjustment in the event of the
expiration, termination or redemption of the rights. Any distribution of rights
or warrants pursuant to a Rights Plan that would allow a Holder to receive upon
conversion, in addition to the Common Stock, the rights described therein
(whether or not the rights have separated from the Common Stock at the time of
conversion), shall not constitute a distribution of rights or warrants pursuant
to this Article 13.


 


Rights or warrants
distributed by the Company to all holders of Common Stock entitling the holders
thereof to subscribe for or purchase shares of the Company’s Capital Stock
(either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events (“Trigger Event”):  (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 13.06(c) (and no adjustment to
the Conversion Rate under this Section 13.06 shall be required) until
the occurrence of the earliest Trigger Event, whereupon such rights and
warrants shall be deemed to have been distributed and an appropriate adjustment
(if any is required) to the Conversion Rate shall be made under this Section
13.06(c). If any such right or warrant, including any such existing rights
or warrants distributed prior to the date of this Indenture, are subject to
events, upon the occurrence of which such rights or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets,
then the date of the occurrence of any and each such event shall be deemed to
be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion
Rate under this Section 13.06 was made, (1) in the case of any such
rights or warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as
of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants which shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such
rights and warrants had not been issued.


 


67

















 


(d)  If the Company shall, by dividend or
otherwise, at any time distribute cash to all or substantially all holders of
its Common Stock, the Conversion Rate shall be adjusted based on the following
formula:


 





 


where,


 


CR0    =   the Conversion
Rate in effect immediately prior to the Ex-dividend Date for such distribution;


 


CR'     =   the Conversion
Rate in effect on and immediately after the Ex-dividend Date for such
distribution;


 


SP0     =   the average of
the Last Reported Sale Prices of the Common Stock over the ten consecutive
Trading Day period ending on the Trading Day immediately preceding the
Ex-dividend Date of such distribution; and


 


C        =   the amount in
cash per share distributed to holders of the Common Stock in such distribution.


 


Such adjustment shall be
made successively whenever any such distribution is made and shall become
effective on the Ex-dividend Date for such distribution. In the event that such
dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such dividend or distribution had not been declared.


 


(e)  In case the Company or any of its
Subsidiaries shall purchase any shares of the Common Stock pursuant to a tender
offer, to the extent that the cash and value of any other consideration
included in the payment per share of Common Stock exceeds the Last Reported
Sale Price of the Common Stock on the Trading Day next succeeding the date such
tender offer expires, the Conversion Rate shall be increased based on the
following formula:


 





 


where,


 


CR0    =   the Conversion
Rate in effect immediately prior to the effective date of the adjustment;


 


CR'     =   the Conversion
Rate in effect on and immediately after the effective date of the adjustment;


 


68

















 


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


 


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


 


OS'      =      the number of shares of
Common Stock outstanding immediately after the date such tender offer expires
(after giving effect to the purchase of shares in such tender offer); and


 


SP'      =      the average of the Last
Reported Sale Prices of the Common Stock over the ten consecutive Trading Day
period commencing on the Trading Day next succeeding the date such tender offer
expires.


 


The foregoing adjustment to
the Conversion Rate shall occur on the tenth Trading Day from, and including,
the Trading Day next succeeding the date such tender offer expires; provided
that in respect of any conversion within ten Trading Days immediately
following, and including, the expiration date of any such tender offer, references
with respect to ten Trading Days shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the expiration date of such
tender offer and the Conversion Date in determining the applicable Conversion
Rate. For purposes of this clause (e) of Section 13.06, the
aggregate consideration in any such tender offer shall equal the sum of the
aggregate amount of cash consideration and the aggregate fair market value (as
determined by the Board of Directors of the Company) of any other consideration
payable in such tender offer. In the event that the Company is obligated to
purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would have been in effect
based upon the number of shares actually purchased. For purposes of this clause
(e) of Section 13.06, the term “tender offer” shall mean and
include both tender offers and exchange offers, all references to “purchases”
of shares in tender offers (and all similar references) shall mean and include
both the purchase of shares in tender offers and the acquisition of shares pursuant
to exchange offers, and all references to “tendered shares” (and all similar
references) shall mean and include shares tendered in both tender offers and
exchange offers.


 


(f)  If the application of any of the formulas set
forth in Section 13.06(a) through Section 13.06(e) would result
in a decrease in the Conversion Rate, no adjustment to the Conversion Rate
shall be made, other than as a result of a stock combination as set forth in Section
13.06(a).


 


(g)  In any case in which this Section 13.06
shall require that an adjustment be made following an Ex-dividend Date, the
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section 13.09)
issuing to the Holder of any Security converted after such Ex-dividend Date the
shares of Common Stock and other Capital Stock of the 


 


69





















 


Company issuable upon such conversion over and above the shares of
Common Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Rate prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agent to issue due bills or other appropriate
evidence prepared by the Company of the right to receive such shares.


 


SECTION 13.07. No
Adjustment.  (a)  No adjustment need be made (1) upon the
issuance of any shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on securities
of the Company and the investment of additional optional amounts in shares of
Common Stock under any plan; (2) upon the issuance of any shares of Common
Stock or options or rights to purchase such shares pursuant to any present or
future employee, director or consultant benefit plan or program of or assumed
by the Company or any of its Subsidiaries; (3) upon the issuance of any
shares of Common Stock pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security not described in clause (2) and
outstanding as of the original Issue Date; (4) for a change in the par value of
the Common Stock or a change to no par value of the Common Stock; or (5) for
accrued and unpaid interest.


 


(b)  To the extent that the Securities become
convertible into the right to receive cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash due.


 


(c)  No adjustment in the Conversion Rate shall be
made pursuant to this Section 13.06 if the Holders may participate,
as a result of holding Securities, in the transaction that would otherwise give
rise to an adjustment pursuant to Section 13.06 without having to
convert their Securities.


 


(d)  No adjustment in the Conversion Rate shall be
required pursuant to Section 13.06 unless such adjustment would require an
increase or decrease of at least 1.0% in the Conversion Rate; provided, however, that any adjustments which by reason of
this clause (d) of Section 13.07 are not required to be made, shall be
carried forward and taken into account in any subsequent adjustment.


 


(e)  Other than as described above in Section 13.06, no adjustment to
the Conversion Rate shall be required for any issuance of Common Stock or
convertible or exchangeable securities or rights to purchase Common Stock or
convertible or exchangeable securities.


 


SECTION 13.08. [Reserved]


 


SECTION 13.09. Notice of
Conversion Rate Adjustment.  Whenever
the Conversion Rate or conversion privilege is adjusted, the Company shall
promptly mail to Holders a notice of the adjustment and file with the Trustee
an Officers’ Certificate briefly stating the facts requiring the adjustment and
the manner of computing it. Unless and until the Trustee shall receive an
Officers’ Certificate setting forth an adjustment of 


 


70





















 


the Conversion Rate, the Trustee may assume without inquiry that the
Conversion Rate has not been adjusted and that the last Conversion Rate of
which it has knowledge remains in effect.


 


SECTION 13.10. Notice of
Certain Transactions.  In the event
that:


 


(a)
the Company takes any action which would require an adjustment in the
Conversion Rate;


 


(b)
the Company consolidates or merges with, or transfers all or substantially all
of its property and assets to, another corporation and stockholders of the
Company must approve the transaction; or


 


(c)
there is a dissolution or liquidation of the Company,


 


the Company shall mail to
Holders and file with the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least
ten days before such date. Failure to mail such notice or any defect therein
shall not affect the validity of any transaction referred to in
clause (a), (b) or (c) of this Section 13.10.


 


SECTION 13.11. Effect of
Reclassification, Consolidation, Merger or Sale on Conversion Privilege.  If any of the following shall occur,
namely:  (a) any reclassification or
change of shares of Common Stock issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination, or
any other change for which an adjustment is provided in Section 13.06);
(b) any consolidation or merger or combination to which the Company is a party
other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination) in, outstanding shares of Common
Stock; or (c) any sale or conveyance as an entirety or substantially as an
entirety of the property and assets of the Company, directly or indirectly, to
any Person, then the Company, or such successor, purchasing or transferee
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, combination, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the
right to convert such Security into the kind and amount of shares of stock and
other securities and property (including cash) receivable upon such
reclassification, change, combination, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock deliverable upon
conversion of such Security immediately prior to such reclassification, change,
combination, consolidation, merger, sale or conveyance. For the avoidance of
doubt, a Holder will not be entitled to an increase in the Conversion Rate as a
result of a transaction described in clause (a), (b) or (c) of this
paragraph that constitutes a Fundamental Change if such Holder does not convert
its Securities during the period specified in Section 13.12(a) in
respect of such Fundamental Change. Such supplemental indenture shall provide
for adjustments of the 


 


71





















 


Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this Article 13.
If, in the case of any such consolidation, merger, combination, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock include shares of stock or
other securities and property of a person other than the successor, purchasing
or transferee corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the Holders of the Securities as the Board of
Directors of the Company shall in good faith consider necessary by reason of
the foregoing. The provisions of this Section 13.11 shall similarly
apply to successive reclassifications, changes, combinations, consolidations,
mergers, sales or conveyances.


 


In the event the Company
shall execute a supplemental indenture pursuant to this Section 13.11,
the Company shall promptly file with the Trustee (x) an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or other securities or property (including cash) receivable by Holders
of the Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel
that all conditions precedent have been complied with, and shall promptly mail
notice thereof to all Holders.


 


SECTION 13.12. Adjustment
to Shares Delivered Upon Fundamental Change.  (a)  In
the event of the occurrence of a Fundamental Change as described in clause (1)
or (2) of the definition thereof, the Company shall give written notice to the
Holders of Securities on or prior to the date that is 10 scheduled Trading Days
prior to the anticipated Effective Date of such Fundamental Change (or, in the
case of a Fundamental Change pursuant to clause (1) of the definition thereof,
the later of the date that is 10 scheduled Trading Days prior to the
anticipated Effective Date of such Fundamental Change and the date that is the
fifth Business Day following receipt by the Company of notice of such
Fundamental Change) (such date, the “Additional Share Notice Date”).
Such notice shall be provided to all Holders of Securities and the Trustee and
shall state that such Fundamental Change has occurred and the anticipated
number of Additional Shares in respect thereof. Simultaneously with providing
such notice, the Company shall publish a notice containing substantially the
same information in a newspaper published in the English language, customarily
published each Business Day and of general circulation in The City of New York,
or publish such information on the Company’s website or through such other
public medium as the Company may use at such time.


 


(b)  In the event that a Holder converts
Securities at any time in the period beginning on the Additional Share Notice
Date and ending on and including the 10th Trading Day following the Effective
Date of such Fundamental Change (or ending on the applicable Fundamental Change
Repurchase Date, if later), the Conversion Rate in respect of the Securities so
converted shall be increased by an additional number of shares of Common Stock
(the “Additional Shares”) determined by reference to the table attached
as Exhibit C hereto, based on the date on which such Fundamental Change 


 


72





















 


occurs or becomes effective (the “Effective Date”) and the price
(the “Stock Price”) paid per share of Common Stock in such Fundamental
Change. If the holders of Common Stock receive only cash in such Fundamental
Change, the Stock Price shall be the cash amount paid per share of Common
Stock. In all other cases, the Stock Price shall be the average of the Last
Reported Sale Prices of the Common Stock over the five Trading Day period
ending on the Trading Day immediately preceding the Effective Date of the
Fundamental Change. The Additional Shares shall be issued after the later to
occur of (1) the fifteenth Trading Day following the Effective Date of the
applicable Fundamental Change and (2) the fifth Trading Day following the
relevant Conversion Date in respect of the Securities so converted. Such
increase in the Conversion Rate shall not take place if such Fundamental Change
is not consummated.


 


(c)  The Stock Prices set forth in the column
headings of the table set forth in Exhibit C shall be adjusted as of any
date on which the Conversion Rate is adjusted pursuant to Section 13.06.
The adjusted Stock Prices shall equal the Stock Prices applicable immediately
prior to such adjustment, multiplied by a fraction, the numerator of which is
the Conversion Rate immediately prior to the Conversion Rate adjustment giving
rise to the Stock Price adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares set forth in
such table shall be adjusted in the same manner as the Conversion Rate is
adjusted pursuant to Section 13.06.


 


(d)  In the event that the exact Stock Price and
Effective Date relating to a Fundamental Change are not set forth in the table
in Exhibit C, then:


 


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


 


(ii)
 if the Stock Price is greater than
$90.00 per share (subject to adjustment), no Additional Shares shall be
added to the Conversion Rate; and


 


(iii) if the Stock Price is less than
$21.67 per share (subject to adjustment), no Additional Shares shall be
added to the Conversion Rate.


 


Notwithstanding the
foregoing, in no event shall the total number of shares of Common Stock
issuable upon conversion (including the Additional Shares) exceed
41.1467 per $1,000 Principal Amount of Securities, subject to adjustment
as provided in Section 13.06.


 


SECTION 13.13. Trustee’s
Disclaimer.  The Trustee shall have
no duty to determine when an adjustment under this Article 13
should be made, how it should be made or what such adjustment should be, but
may accept as conclusive evidence of that fact or the correctness of any such
adjustment, and shall be protected in relying upon, an Officers’ Certificate
including the Officers’ Certificate with respect thereto which the 


 


73





















 


Company is obligated to file with the Trustee pursuant to Section 13.09.
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 13.


 


The Trustee shall not be
under any responsibility to determine the correctness of any provisions
contained in any supplemental indenture executed pursuant to Section 13.11,
but may accept as conclusive evidence of the correctness thereof, and shall be
fully protected in relying upon, the Officers’ Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to Section 13.11.


 


SECTION 13.14. Voluntary
Increase.  The Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least 20 days and if the increase is irrevocable during the
period if the Board of Directors determines that such increase would be in the
best interest of the Company or the Board of Directors deems it advisable to
avoid or diminish income tax to holders of shares of Common Stock in connection
with any stock or rights dividend or distribution or similar event, and the Company
provides at least 15 days prior notice of any increase in the Conversion Rate.


 


SECTION 13.15. Company
Determination Final.  Any
determination that the Company or the Board of Directors must make pursuant to
this Article 13 shall be conclusive if made in good faith and in
accordance with the provisions of this Article 13, absent manifest
error, and set forth in a resolution of the Board of Directors.


 


74

















 


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


 


	
   

  	
  AFFYMETRIX, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    By:

  
	
   

  	
   

  	
   /s/ JOHN C. BATTY

  
	
   

  	
   

  	
  Name: John C. Batty

  
	
   

  	
   

  	
  Title: Executive Vice President and Chief 

  Financial Officer, Treasurer and Principal 

  Financial Officer

  



 


 


 


[Trustee Signature Follows]


 

















 


	
   

  	
  THE BANK OF NEW YORK TRUST 

  COMPANY, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    By:

  
	
   

  	
   

  	
   /s/ TERESA PETTA

  
	
   

  	
   

  	
  Name: Teresa Petta

  
	
   

  	
   

  	
  Title: Vice President

  



 

















EXHIBIT A


 


Form of Repurchase Notice


 


                     ,
      


 


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

700 South Flower Street, Suite 500

Los Angeles, CA 90017




Attention:  [Institutional Trust
Services]


 


Re:                      Affymetrix, Inc. (the “Company”)


3.50% Senior Convertible Notes Due 2038


 


This is a Repurchase Notice as defined in Section 11.08 of
the Indenture dated as of November 16, 2007 (the “Indenture”)
between the Company and The Bank of New York Trust Company, N.A., as
Trustee. Terms used but not defined herein shall have the meanings ascribed to
them in the Indenture.


 


Certificate No(s). of Securities:                                             


 


I intend to deliver the following aggregate Principal Amount Securities
for purchase by the Company pursuant to Section 11.08 of the
Indenture


 


(in multiples of $1,000):


 


$                                                


 


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


 


	
   

  	
  Signed:

  	
   

  	
   

  



 


A-1

















EXHIBIT B


 


Form of Fundamental Change Repurchase Notice


 


                     ,
      


 


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

700 South Flower Street, Suite 500

Los Angeles, CA 90017


 


Attention:  [Institutional Trust
Services]


 


Re:                               Affymetrix, Inc. (the “Company”)


3.50% Senior Convertible Notes Due 2038


 


This is a Fundamental Change Repurchase Notice as defined in Section 11.09
of the Indenture dated as of November 16, 2007 (the “Indenture”) between the
Company and The Bank of New York Trust Company, N.A., as Trustee. Terms used
but not defined herein shall have the meanings ascribed to them in the
Indenture.


 


Certificate No(s). of Securities:                                             


 


I intend to deliver the following aggregate Principal Amount of
Securities for purchase by the Company pursuant to Section 11.09 of
the Indenture (in multiples of $1,000):


 


$                                                


 


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


 


	
   

  	
  Signed:

  	
   

  	
   

  



 


B-1
















 


EXHIBIT C


 


 


The following table sets
forth the hypothetical Stock Price and the number of Additional Shares to be
received per $1,000 Principal Amount of Securities:


 


	
   

  	
   

  	
  $21.67

  	
   

  	
  $25.00

  	
   

  	
  $30.00

  	
   

  	
  $35.00

  	
   

  	
  $40.00

  	
   

  	
  $45.00

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $65.00

  	
   

  	
  $70.00

  	
   

  	
  $75.00

  	
   

  	
  $80.00

  	
   

  	
  $85.00

  	
   

  	
  $90.00

  	
   

  
	
  Effective
  date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  November
  16, 2007

  	
   

  	
  12.9476

  	
   

  	
  11.4995

  	
   

  	
  8.2858

  	
   

  	
  6.2598

  	
   

  	
  4.9077

  	
   

  	
  3.9635

  	
   

  	
  3.2789

  	
   

  	
  2.7668

  	
   

  	
  2.3730

  	
   

  	
  2.0631

  	
   

  	
  1.8142

  	
   

  	
  1.6107

  	
   

  	
  1.4417

  	
   

  	
  1.2993

  	
   

  	
  1.1779

  	
   

  
	
  January
  15, 2009

  	
   

  	
  12.9476

  	
   

  	
  11.0576

  	
   

  	
  7.7322

  	
   

  	
  5.6844

  	
   

  	
  4.3521

  	
   

  	
  3.4451

  	
   

  	
  2.8038

  	
   

  	
  2.3350

  	
   

  	
  1.9823

  	
   

  	
  1.7100

  	
   

  	
  1.4949

  	
   

  	
  1.3216

  	
   

  	
  1.1795

  	
   

  	
  1.0609

  	
   

  	
  0.9607

  	
   

  
	
  January
  15, 2010

  	
   

  	
  12.9476

  	
   

  	
  10.4785

  	
   

  	
  7.0137

  	
   

  	
  4.9473

  	
   

  	
  3.6508

  	
   

  	
  2.8012

  	
   

  	
  2.2228

  	
   

  	
  1.8150

  	
   

  	
  1.5183

  	
   

  	
  1.2960

  	
   

  	
  1.1249

  	
   

  	
  0.9900

  	
   

  	
  0.8812

  	
   

  	
  0.7918

  	
   

  	
  0.7169

  	
   

  
	
  January
  15, 2011

  	
   

  	
  12.9476

  	
   

  	
  9.5747

  	
   

  	
  5.9640

  	
   

  	
  3.9160

  	
   

  	
  2.7070

  	
   

  	
  1.9658

  	
   

  	
  1.4942

  	
   

  	
  1.1826

  	
   

  	
  0.9691

  	
   

  	
  0.8172

  	
   

  	
  0.7051

  	
   

  	
  0.6196

  	
   

  	
  0.5524

  	
   

  	
  0.4979

  	
   

  	
  0.4527

  	
   

  
	
  January
  15, 2012

  	
   

  	
  12.9476

  	
   

  	
  8.3527

  	
   

  	
  4.4756

  	
   

  	
  2.4803

  	
   

  	
  1.4511

  	
   

  	
  0.9134

  	
   

  	
  0.6252

  	
   

  	
  0.4646

  	
   

  	
  0.3701

  	
   

  	
  0.3106

  	
   

  	
  0.2702

  	
   

  	
  0.2407

  	
   

  	
  0.2177

  	
   

  	
  0.1990

  	
   

  	
  0.1832

  	
   

  
	
  January
  15, 2013

  	
   

  	
  12.9476

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  After
  January 15, 2013

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


C-1

















 


Certain Sections of this Indenture relating to Sections 310 through 318
of the Trust Indenture Act of 1939:


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  § 310(a)(1)

  	
   

  	
   

  	
  6.09

  
	
  (a)(2)

  	
   

  	
   

  	
  6.09

  
	
  (a)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
   

  	
  6.08

  
	
   

  	
   

  	
   

  	
  6.10

  
	
  § 311(a)

  	
   

  	
   

  	
  6.13

  
	
  (b)

  	
   

  	
   

  	
  6.13

  
	
  § 312(a)

  	
   

  	
   

  	
  7.01

  
	
   

  	
   

  	
   

  	
  7.02(a)

  
	
  (b)

  	
   

  	
   

  	
  7.02(b)

  
	
  (c)

  	
   

  	
   

  	
  7.02(c)

  
	
  § 313(a)

  	
   

  	
   

  	
  7.03(a)

  
	
  (b)

  	
   

  	
   

  	
  7.03(a)

  
	
  (c)

  	
   

  	
   

  	
  7.03(a)

  
	
  (d)

  	
   

  	
   

  	
  7.03(b)

  
	
  § 314(a)

  	
   

  	
   

  	
  10.06

  
	
  (b)

  	
   

  	
   

  	
  Not Applicable

  
	
  (c)(1)

  	
   

  	
   

  	
  1.02

  
	
  (c)(2)

  	
   

  	
   

  	
  1.02

  
	
  (c)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
  (d)

  	
   

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
   

  	
  1.02

  
	
  § 315(a)

  	
   

  	
   

  	
  6.01

  
	
  (b)

  	
   

  	
   

  	
  6.02

  
	
  (c)

  	
   

  	
   

  	
  6.01

  
	
  (d)

  	
   

  	
   

  	
  6.01

  
	
  (e)

  	
   

  	
   

  	
  5.14

  
	
  § 316(a)(1)(A)

  	
   

  	
   

  	
  5.11

  
	
  (a)(1)(B)

  	
   

  	
   

  	
  5.12

  
	
  (a)(2)

  	
   

  	
   

  	
  Not Applicable

  
	
  (b)

  	
   

  	
   

  	
  5.08

  
	
  (c)

  	
   

  	
   

  	
  1.04(c)

  
	
  § 317(a)(1)

  	
   

  	
   

  	
  5.03

  
	
  (a)(2)

  	
   

  	
   

  	
  5.04

  
	
  (b)

  	
   

  	
   

  	
  10.03

  
	
  § 318(a)

  	
   

  	
   

  	
  1.07

  



 


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