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Exhibit 4.3  


    EXECUTION COPY 






INDENTURE  


 Between  


INTERMUNE, INC.  


 and  


 THE BANK OF NEW YORK

as Trustee  


 53/4% CONVERTIBLE SUBORDINATED NOTES DUE 2006  


 Dated as of July 5, 2001  









 
  
 

    CROSS-REFERENCE TABLE*    
  



	Trust Indenture

Act Section
 
	 	Indenture

Section
	 
	310	(a)(1)	 	5.11	 
	 	(a)(2)	 	5.11	 
	 	(a)(3)	 	n/a	 
	 	(a)(4)	 	n/a	 
	 	(a)(5)	 	5.11	 
	 	(b)	 	5.3; 5.11	 
	 	(c)	 	n/a	 
	

311	

(a)	
 	

5.12	
 
	 	(b)	 	5.12	 
	 	(c)	 	n/a	 
	

312	

(a)	
 	

2.9	
 
	 	(b)	 	14.3	 
	 	(c)	 	14.3	 
	

313	

(a)	
 	

5.7	
 
	 	(b)(1)	 	n/a	 
	 	(b)(2)	 	5.7	 
	 	(c)	 	5.7; 14.2	 
	 	(d)	 	5.7	 
	

314	

(a)(1), (2), (3)	
 	

9.4; 14.2	
 
	 	(a)(4)	 	9.5; 14.6	 
	 	(b)	 	n/a	 
	 	(c)(1)	 	14.5	 
	 	(c)(2)	 	14.5	 
	 	(c)(3)	 	n/a	 
	 	(d)	 	n/a	 
	 	(e)	 	14.6	 
	 	(f)	 	n/a	 
	

315	

(a)	
 	

5.1(a	
)
	 	(b)	 	5.6; 14.2	 
	 	(c)	 	5.1(b	)
	 	(d)	 	5.1(c	)
	 	(e)	 	4.14	 
	

316	

(a)(last sentence)	
 	

2.13, 7.2	
 
	 	(a)(1)(A)	 	4.5	 
	 	(a)(1)(B)	 	4.4	 
	 	(a)(2)	 	n/a	 
	 	(b)	 	4.7	 
	 	(c)	 	7.4	 
	

317	

(a)(1)	
 	

4.8	
 
	 	(a)(2)	 	4.9	 
	 	(b)	 	2.6	 
	

318	

(a)	
 	

14.1	
 
	 	(b)	 	n/a	 
	 	(c)	 	14.1	 







"n/a"
means not applicable. 


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


i






  



 
 

Table of Contents    
  



	 
	 	 
	 	Page

	ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE	 	1
	 	Section 1.1.	 	Definitions	 	1
	 	Section 1.2.	 	Incorporation by Reference of Trust Indenture Act	 	13
	 	Section 1.3.	 	Rules of Construction	 	13
	

ARTICLE 2 THE SECURITIES	
 	

14
	 	Section 2.1.	 	Title and Terms	 	14
	 	Section 2.2.	 	Form of Securities	 	16
	 	Section 2.3.	 	Global Security Legend	 	16
	 	Section 2.4.	 	Execution, Authentication, Delivery and Dating of the Securities	 	17
	 	Section 2.5.	 	Registrar and Paying Agent	 	18
	 	Section 2.6.	 	Paying Agent to Hold Assets in Trust	 	18
	 	Section 2.7.	 	General Provisions Relating to Registration, Transfer and Exchange	 	19
	 	Section 2.8.	 	Book-Entry Provisions for the Global Securities	 	20
	 	Section 2.9.	 	Holder Lists	 	21
	 	Section 2.10.	 	Persons Deemed Owners	 	21
	 	Section 2.11.	 	Mutilated, Destroyed, Lost or Stolen Securities	 	22
	 	Section 2.12.	 	Treasury Securities	 	22
	 	Section 2.13.	 	Temporary Securities	 	23
	 	Section 2.14.	 	Cancellation	 	23
	 	Section 2.15.	 	CUSIP Numbers	 	23
	 	Section 2.16.	 	Defaulted Interest	 	24
	

ARTICLE 3 DISCHARGE OF INDENTURE	
 	

24
	 	Section 3.1.	 	Discharge of Liability on Securities	 	24
	 	Section 3.2.	 	Repayment to the Company	 	24
	

ARTICLE 4 DEFAULTS AND REMEDIES	
 	

25
	 	Section 4.1.	 	Events of Default	 	25
	 	Section 4.2.	 	Acceleration of Maturity; Rescission and Annulment	 	27
	 	Section 4.3.	 	Other Remedies	 	27
	 	Section 4.4.	 	Waiver of Past Defaults	 	28
	 	Section 4.5.	 	Control by Majority	 	28
	 	Section 4.6.	 	Limitation on Suit	 	29
	 	Section 4.7.	 	Unconditional Rights of Holders to Receive Payment and to Convert	 	29
	 	Section 4.8.	 	Collection of Indebtedness and Suits for Enforcement by the Trustee	 	29
	 	Section 4.9.	 	Trustee May File Proofs of Claim	 	30
	 	Section 4.10.	 	Restoration of Rights and Remedies	 	31
	 	Section 4.11.	 	Rights and Remedies Cumulative	 	31
	 	Section 4.12.	 	Delay or Omission Not Waiver	 	31
	 	Section 4.13.	 	Priorities	 	31
	 	Section 4.14.	 	Undertaking for Costs	 	32
	 	Section 4.15.	 	Waiver of Stay or Extension Laws	 	32
	

ARTICLE 5 THE TRUSTEE	
 	

32
	 	Section 5.1.	 	Certain Duties and Responsibilities	 	32
	 	Section 5.2.	 	Certain Rights of Trustee	 	34
	 	Section 5.3.	 	Individual Rights of Trustee	 	35
	 	Section 5.4.	 	Money Held in Trust	 	35



ii





 

	 	Section 5.5.	 	Trustee's Disclaimer	 	35
	 	Section 5.6.	 	Notice of Defaults	 	36
	 	Section 5.7.	 	Reports by Trustee to Holders	 	36
	 	Section 5.8.	 	Compensation and Indemnification	 	36
	 	Section 5.9.	 	Replacement of Trustee	 	37
	 	Section 5.10.	 	Successor Trustee by Merger, Etc	 	38
	 	Section 5.11.	 	Corporate Trustee Required; Eligibility	 	38
	 	Section 5.12.	 	Collection of Claims Against the Company	 	38
	

ARTICLE 6 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE	
 	

38
	 	Section 6.1.	 	Company May Consolidate, Etc., Only on Certain Terms	 	38
	 	Section 6.2.	 	Successor Corporation Substituted	 	39
	

ARTICLE 7 AMENDMENTS, SUPPLEMENTS AND WAIVERS	
 	

40
	 	Section 7.1.	 	Without Consent of Holders of Securities	 	40
	 	Section 7.2.	 	With Consent of Holders of Securities	 	40
	 	Section 7.3.	 	Compliance with Trust Indenture Act	 	42
	 	Section 7.4.	 	Revocation of Consents and Effect of Consents or Votes	 	42
	 	Section 7.5.	 	Notation on or Exchange of Securities	 	42
	 	Section 7.6.	 	Trustee to Sign Amendment, Etc	 	43
	

ARTICLE 8 MEETING OF HOLDERS OF SECURITIES	
 	

43
	 	Section 8.1.	 	Purposes for Which Meetings May Be Called	 	43
	 	Section 8.2.	 	Call Notice and Place of Meetings	 	43
	 	Section 8.3.	 	Persons Entitled to Vote at Meetings	 	43
	 	Section 8.4.	 	Quorum; Action	 	44
	 	Section 8.5.	 	Determination of Voting Rights; Conduct and Adjournment of Meetings	 	44
	 	Section 8.6.	 	Counting Votes and Recording Action of Meetings	 	45
	

ARTICLE 9 COVENANTS	
 	

46
	 	Section 9.1.	 	Payment of Principal, Redemption Price, Change of Control Purchase Price and Interest	 	46
	 	Section 9.2.	 	Maintenance of Offices or Agencies	 	46
	 	Section 9.3.	 	Corporate Existence	 	46
	 	Section 9.4.	 	Reports	 	47
	 	Section 9.5.	 	Compliance Certificate	 	47
	

ARTICLE 10 REDEMPTION OF SECURITIES	
 	

47
	 	Section 10.1.	 	Optional Redemption	 	47
	 	Section 10.2.	 	Notice to Trustee	 	48
	 	Section 10.3.	 	Selection of Securities to Be Redeemed	 	48
	 	Section 10.4.	 	Notice of Redemption	 	49
	 	Section 10.5.	 	Effect of Notice of Redemption	 	50
	 	Section 10.6.	 	Deposit and Payment of Redemption Price	 	50
	 	Section 10.7.	 	Securities Redeemed in Part	 	51
	

ARTICLE 11 PURCHASE AT THE OPTION OF A HOLDER UPON A CHANGE OF CONTROL	
 	

51
	 	Section 11.1.	 	Repurchase Right	 	51
	 	Section 11.2.	 	Change of Control Notice	 	52
	 	Section 11.3.	 	Delivery of Change of Control Purchase Notice; Form of Change of Control Purchase Notice; Withdrawal of Change of Control Purchase Notice	 	53



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	 	Section 11.4.	 	Exercise of Purchase Rights	 	54
	 	Section 11.5.	 	Deposit and Payment of the Purchase Price	 	55
	 	Section 11.6.	 	Effect of Delivery of Change of Control Purchase Notice and Purchase	 	55
	 	Section 11.7.	 	Physical Securities Purchased in Part	 	56
	 	Section 11.8.	 	Covenant to Comply With Securities Laws Upon Purchase of Securities	 	56
	 	Section 11.9.	 	Repayment to the Company	 	56
	

ARTICLE 12 CONVERSION OF SECURITIES	
 	

57
	 	Section 12.1.	 	Conversion Right; Expiration of Conversion Right; Conversion Price	 	57
	 	Section 12.2.	 	Exercise of Conversion Right	 	57
	 	Section 12.3.	 	Fractions of Shares	 	59
	 	Section 12.4.	 	Adjustment of Conversion Price	 	59
	 	Section 12.5.	 	Notice of Adjustments of Conversion Price	 	69
	 	Section 12.6.	 	Notice Prior to Certain Actions	 	69
	 	Section 12.7.	 	Company to Reserve Common Stock	 	70
	 	Section 12.8.	 	Common Stock to be Fully Paid and Nonassessable	 	70
	 	Section 12.9.	 	Taxes on Conversions	 	70
	 	Section 12.10.	 	Cancellation of Converted Securities	 	71
	 	Section 12.11.	 	Effect of Reclassification, Consolidation, Merger or Sale	 	71
	 	Section 12.12.	 	Responsibility of Trustee for Conversion Provisions	 	72
	

ARTICLE 13 SUBORDINATION	
 	

73
	 	Section 13.1.	 	Subordination to Senior Debt	 	73
	 	Section 13.2.	 	Subrogation	 	75
	 	Section 13.3.	 	Obligation of the Company is Absolute and Unconditional	 	75
	 	Section 13.4.	 	Maturity of or Default on Senior Debt	 	75
	 	Section 13.5.	 	Payments on Securities Permitted	 	76
	 	Section 13.6.	 	Effectuation of Subordination by Trustee	 	76
	 	Section 13.7.	 	Knowledge of Trustee	 	76
	 	Section 13.8.	 	Trustee's Relation to Senior Debt	 	77
	 	Section 13.9.	 	Rights of Holders of Senior Debt Not Impaired	 	77
	 	Section 13.10.	 	Modification of Terms of Senior Debt	 	77
	 	Section 13.11.	 	Certain Conversions Not Deemed Payment	 	77
	

ARTICLE 14 OTHER PROVISIONS OF GENERAL APPLICATION	
 	

78
	 	Section 14.1.	 	Trust Indenture Act Controls	 	78
	 	Section 14.2.	 	Notices	 	78
	 	Section 14.3.	 	Communication by Holders with Other Holders	 	79
	 	Section 14.4.	 	Acts of Holders of Securities	 	79
	 	Section 14.5.	 	Certificate and Opinion as to Conditions Precedent	 	80
	 	Section 14.6.	 	Statements Required in Certificate or Opinion	 	81
	 	Section 14.7.	 	Effect of Headings and Table of Contents	 	81
	 	Section 14.8.	 	Successors and Assigns	 	81
	 	Section 14.9.	 	Separability Clause	 	82
	 	Section 14.10.	 	Benefits of Indenture	 	82
	 	Section 14.11.	 	Governing Law	 	82
	 	Section 14.12.	 	Counterparts	 	82
	 	Section 14.13.	 	Legal Holidays	 	82
	 	Section 14.14.	 	Recourse Against Others	 	82




iv





 

EXHIBITS




	EXHIBIT A:	 	Form of Security	 	A-1
	EXHIBIT B:	 	Assignment Form	 	B-1
	EXHIBIT C:	 	Form of Change of Control Purchase Notice	 	C-1
	EXHIBIT D:	 	Form of Conversion Notice	 	D-1




v







  




    INDENTURE,
dated as of July 5, 2001 (this "Indenture"), between INTERMUNE, INC., a corporation duly organized and
existing under the laws of the State of Delaware, having its principal office at 1710 Gilbreth Avenue, Suite 301, Burlingame, CA 94010 (the "Company")
and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee"), having its principal corporate trust office at 101 Barclay Street,
Floor 21W, New York, New York 10286. 


 
 

RECITALS OF THE COMPANY    
  


    The Company has duly authorized the creation of an issue of its 53/4% Convertible Subordinated Notes due 2006 (the
"Securities") having the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. 


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


 
 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:    
  


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


 
 

ARTICLE 1
  
    DEFINITIONS AND INCORPORATION BY REFERENCE    
  



    Section 1.1.  Definitions.  


    For
all purposes of this Indenture and the Securities, the following terms are defined as follows: 


    "Act", when used with respect to any Holder of a Security, has the meaning specified in Section 14.4(a). 


    "Adjusted Interest Rate" means, with respect to any Reset Transaction, the rate per annum that is the arithmetic average of the rates
quoted by two Reference Dealers selected by the Company or its successor as the rate at which interest on the Securities should accrue so that the Fair Market Value, expressed in dollars, of a
Security immediately after the later of: 



    (i)  the
public announcement of such Reset Transaction; and 


    (ii) the
public announcement of a change in dividend policy in connection with such Reset Transaction, 




will
equal most closely the average Trading Price of a Security for the 20 Trading Days preceding the date of such public announcement; provided that
the Adjusted Interest Rate shall not be less than 53/4% per annum. 


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


    "Agent Member" has the meaning specified in Section 2.8. 


D–1





 


    "Bankruptcy Law" means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors. 


    "Board of Directors" means either the board of directors of the Company or any committee of that board empowered to act for it with
respect to this Indenture. 


    "Board Resolution" means a resolution duly adopted by the Board of Directors, a copy of which, certified by the Secretary or an
Assistant Secretary of the Company to be in full force and effect on the date of such certification, shall have been delivered to the Trustee. 


    "Business Day", when used with respect to any Place of Payment or Place of Conversion, means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in that Place of Payment or Place of Conversion, as applicable, are authorized or obligated by law to close. 



    "Capital Stock" means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations
or other equivalents of or interests (however designated) in equity of such Person, whether now outstanding or issued after the date of this Indenture, including, without limitation, all common stock
and preferred stock. 


    "Change of Control" means the occurrence of any of the following after the original issuance of the Securities when any of the
following has occurred: 



    (i)  the
acquisition by any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2), respectively, of the Exchange Act) deemed to be a "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchase, merger or other
acquisition transactions of shares of the Company's Capital Stock entitling such person to exercise 50% or more of the total voting power of all shares of the Company's Capital Stock entitled to vote
generally in elections of directors, other than any acquisition by the Company, any of its Subsidiaries or any of its employee benefit plans (except that such person shall be deemed to have beneficial
ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); 


    (ii) any
consolidation or merger of the Company with or into any other person (which for purposes of this definition has the meaning set forth in
Section 13(d)(3) of the Exchange Act), any merger of another person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the properties
and assets of the Company to another person, other than in each case (x) any transaction (i) that does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Capital Stock of the Company and (ii) pursuant to which holders of Capital Stock of the Company immediately prior to such transaction have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock of the Company entitled to vote generally in the election of directors of the continuing or surviving
person immediately after such transaction or (y) any such merger solely for the purpose of changing the jurisdiction of
incorporation of the Company and resulting in a reclassification, conversion or exchange of outstanding Common Stock solely into shares of the common stock of the surviving entity; 




provided, however, that a Change of Control shall not be deemed to have occurred if the Trading Price per share of the Common Stock for any five Trading
Days within the period of 10 consecutive Trading Days ending immediately after the later of the Change of Control or the public announcement of the Change of Control, in the case of a Change of
Control under clause (1) above, or the period of 10 consecutive Trading Days ending immediately before the Change of Control, in the case of a Change of Control under clause (2) above,
shall equal or exceed 105% of the Conversion Price of the Securities in effect on each such Trading Day; or at least 90% of the consideration in the transaction or transactions 


D–2





 


constituting a Change of Control consists of shares of Common Stock traded or to be traded immediately following such Change of Control on a national securities exchange or the Nasdaq National Market
and, as a result of the transaction or transactions, the Securities become convertible solely into such Common Stock (and any rights attached thereto). 


    "Change of Control Notice" has the meaning specified in Section 11.2. 


    "Change of Control Purchase Date" has the meaning specified in Section 11.1 hereof. 


    "Change of Control Purchase Notice" has the meaning specified in Section 11.2 hereof. 


    "Change of Control Purchase Price" has the meaning specified in Section 11.1 hereof. 


    "Clearstream" means Clearstream Banking, société anonyme (formerly Cedelbank). 


    "Commission" means the Securities and Exchange Commission or any successor agency. 


    "Common Stock" means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However, subject to the provisions of
Section 12.10 hereof, shares issuable on conversion of the Securities shall include only shares of the class designated as Common Stock, par value $0.001 per share, of the Company at
the date of execution of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company,  provided that if at any time
there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in
the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such
reclassifications. 


    "Company" means the corporation 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 Order" means a written order signed in the name of the Company by any Officer. 


    "Conversion Agent" means any Person authorized by the Company to convert Securities in accordance with Article 12. Initially,
the Conversion Agent shall be The Bank of New York. 


    "Conversion Date" means, with respect to any Holder, the date on which such Holder has satisfied all the requirements to convert its
Securities pursuant to Section 12.2. 


    "Conversion Price" has the meaning specified in Section 12.1(c). 


    "Conversion Record Date" has the meaning specified in Section 12.4(g). 


    "Corporate Trust Office" means for purposes of presentation or surrender of Securities for payment, registration, transfer, exchange or
conversion or for service of notices or demands upon the Company or for any other purpose of this Indenture, the office of the Trustee located in the Borough of Manhattan, The City of New York at
which at any particular time its corporate trust business shall be administered, which at the date of this Indenture is located at 101 Barclay Street, Floor 21W, New York, New York 10286. 


    "corporation" means any corporation, association, limited liability company, company and business trust. 


    "Current Market Price" has the meaning set forth in Section 12.4(g). 


D–3





 


    "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. 


    "Default" means an event which is, or after notice or lapse of time or both would be, an Event of Default. 


    "Defaulted Payment" has the meaning specified in Section 4.1(a). 


    "Defaulted Interest" has the meaning specified in Section 2.16. 


    "Depositary" means The Depository Trust Company, its nominees and their respective successors. 


    "Designated Senior Debt" means the Senior Debt of the Company which, at the date of determination, has an aggregate amount outstanding
of, or under which, at the date of determination, the holders thereof are committed to lend up to, at least $15 million and is specifically designated in the instrument, agreement or other
document evidencing or governing that Senior Debt as "Designated Senior Debt" for purposes of this Indenture (provided that such instrument, agreement
or other document may place limitations and conditions on the right of such Senior Debt to exercise the rights of Designated Senior Debt). 


    "Dividend Yield" on any security for any period means the dividends paid or proposed to be paid pursuant to an announced dividend
policy on such security for such period divided by, if with respect to dividends paid on such security, the average Trading Price of such security during such period and, if with respect to dividends
proposed to be paid on such security, the Trading Price of such security on the effective date of the related Reset Transaction. 



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


    "Euroclear" means Morgan Guaranty Trust Company of New York, Brussels office, as operator of the Euroclear System. 


    "Event of Default" has the meaning specified in Section 4.1. 


    "Exchange Act" means the Securities Exchange Act of 1934, as amended and the rules and regulations of the Commission thereunder. 



    "Expiration Time" has the meaning specified in Section 12.4(f). 


    "Fair Market Value" has the meaning set forth in Section 12.4(g). 


    "GAAP" has the meaning set forth in Section 1.3. 


    "Global Security" has the meaning specified in Section 2.2. 


    "guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered
into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term
"guarantee" used as a verb has a corresponding meaning. 


    "Holder", when used with respect to any Security, including any Global Security, means the Person in whose name the Security is
registered in the Register. 


D–4






 


    "Indebtedness" means, with respect to any Person, at any date of determination (without duplication): 


	(1)
	all
indebtedness, obligations and other liabilities (contingent or otherwise) of that Person for borrowed money (including obligations in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, whether or not evidenced by notes or similar instruments) or evidenced by bonds,
notes or other instruments for the payment of money, or incurred in connection with the acquisition of any property, services or assets (whether or not the recourse of the lender is to the whole of
the assets of such Person or to only a portion thereof), other than any account payable or other accrued current liability or obligation to trade creditors incurred in the ordinary course of business
in connection with the obtaining of materials or services;



	(2)
	all
reimbursement obligations and other liabilities (contingent or otherwise) of that Person with respect to letters of credit, bank guarantees, bankers' acceptances, surety bonds,
performance bonds or other guaranty of contractual performance;



	(3)
	all
obligations and liabilities (contingent or otherwise) in respect of (A) all obligations as lessee which are capitalized in accordance with GAAP, and (B) any lease
or related documents (including a purchase agreement) in connection with the lease of real property or improvements thereon which provides that such Person is contractually obligated to purchase or
cause a third party to purchase the leased property or pay an agreed residual value of the leased property to the lessor and the obligations of such Person under such lease or related document to
purchase or to cause a third party to purchase the leased property whether or not such lease is characterized as an operating lease or a capital lease in accordance with GAAP, including, without
limitation, synthetic lease obligations;



	(4)
	all
obligations of such Person (contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or agreement;



	(5)
	all
direct or indirect guarantees or similar agreements by that Person in respect of, and obligations or liabilities (contingent or otherwise) of that Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness, obligations or liabilities of another Person of the kind described in clauses (1) through
(4) of this definition;



	(6)
	any
indebtedness or other obligations described in clauses (1) through (4) of this definition secured by any mortgage, pledge, lien or other encumbrance existing on
property which is owned or held by such Person, regardless of whether the Indebtedness or other obligation secured thereby shall have been assumed by such Person; and



	(7)
	any
and all deferrals, renewals, extensions and refundings of, or amendments, modifications or supplements to, any indebtedness, obligation or liability of the kind described in
clauses (1) through (6) of this definition. 



    The
amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, provided (i) that the amount outstanding
at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness
at such time as determined in conformity with GAAP and (ii) that Indebtedness shall not include any liability for federal, state, local or other taxes. 


D–5





 


    "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. 


    "Interest" means, with respect to any Security, the interest payable on such Security based upon the applicable Interest Rate and, if
applicable, any Defaulted Interest. 


    "Interest Payment Date" means each of January 15 and July 15, provided,
however, that if any such date is not a Business Day, the Interest Payment Date shall be the next succeeding Business Day. 


    "Interest Rate" has the meaning specified in Section 2.1(c). 


    "Maturity" means the date on which the Principal with respect to any Outstanding Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by acceleration, conversion, call for redemption, exercise of a purchase right or otherwise. 



    "Nasdaq National Market" means the National Association of Securities Dealers Automated Quotation National Market or any successor
national securities exchange or automated over-the-counter trading market in the United States. 


    "Non-Electing Share" has the meaning specified in Section 12.11. 


    "Officer" of the Company means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, any Vice President, the Secretary or any Assistant Secretary of the Company. 



    "Officers' Certificate" means, with respect to the Company, a certificate signed by both (1) the Chairman of the Board, the
Chief Executive Officer, the President or a Vice President and (2) so long as not the same as the officer signing pursuant to clause (1), the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to the Trustee. 


    "Opinion of Counsel" means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of
the Company) and in form and substance acceptable to the Trustee, which acceptance shall not be unreasonably withheld. 



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



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


    (ii) for
the payment or redemption of which money in the necessary amount has been previously 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,
however, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture; and 


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




provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder,
Securities held for the account of the Company or of any of its Affiliates shall be disregarded and deemed not to be Outstanding, except that in determining whether 


D–6





 


the Trustee shall be protected in making such a determination or relying upon any such quorum, consent or vote, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. 


    "Paying Agent" has the meaning specified in Section 2.5. 


    "Permitted Junior Securities" means securities that are subordinated to Senior Debt, and any securities issued in exchange for Senior
Debt, at least to the same extent as the Securities. 


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



    "Physical Securities" means Securities issued in definitive, fully registered form without interest coupons, substantially in the form
of Exhibit A hereto, with the applicable legend as provided in Section 2.3. 


    "Place of Conversion" means any city in which any Conversion Agent is located. 


    "Place of Payment" means any city in which any Paying Agent is located. 


    "Predecessor Security" of any particular Security, means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. 


    "Principal" means, with respect to any Outstanding Security, the principal amount of that Security, including the Redemption Price, if
applicable, and the Change of Control Purchase Price, if applicable, payable with respect to that Security. 



    "Purchase Right" has the meaning provided in Section 11.1. 


    "Purchased Shares" has the meaning assigned to it in Section 12.4(f). 


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


    "Redemption Price", when used with respect to any Security to be redeemed, means the price per Security at which such Security may be
redeemed pursuant to Section 10.1. 


    "Reference Dealer" means a dealer engaged in the trading of convertible securities selected by the Company for the purpose for which
such dealers are quoted or otherwise to which they are referred herein. 


    "Reference Period" has the meaning set forth in Section 12.4(d). 


    "Register" has the meaning specified in Section 2.5. 


    "Registrar" has the meaning specified in Section 2.5. 


    "Regular Record Date" for the Interest payable on the Securities means the June 15 and the December 15 (whether or not a
Business Day), as applicable, next preceding the corresponding Interest Payment Date. 


    "Reset Transaction" means any of (1) a merger, consolidation or statutory share exchange to which the issuer of the shares of
the common stock into which the Securities are then convertible is a party, (2) a sale of all or substantially all the assets of that entity, (3) a recapitalization of those shares of 


D–7





 


common stock or (4) a distribution contemplated by Section 12.4(d), in any case, after the effective date of which transaction or distribution the Securities would be convertible into
either: 



    (a) shares
of an entity, the common stock of which had a Dividend Yield for the four fiscal quarters of such entity immediately preceding the public announcement of
such transaction or distribution that was more than 2.5% higher than the Dividend Yield on the Common Stock (or other common stock then issuable upon a conversion of the Securities) for the four
fiscal quarters preceding the public announcement of such transaction or distribution; or 


    (b) shares
of an entity that announces a dividend policy prior to the effective date of such transaction or distribution which policy, if implemented, would result in a
Dividend Yield on such entity's common stock for the next four fiscal quarters that would result in such a 2.5% increase. 




    "Responsible Officer", when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant
vice president, any treasurer, any assistant treasurer, any trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with
the particular subject. 


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


    "Securities Act" means the Securities Act of 1933, as amended and the rules and regulations of the Commission thereunder. 



    "Senior Debt" means the principal of, and the premium, if any, interest (including all interest accruing subsequent to the commencement
of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding) and rent payable on or termination payment with
respect to or in connection with, and all fees, costs, expenses and other amounts accrued or due on or in connection with, Indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all deferrals, renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless, in the case of any particular Indebtedness, the instrument creating or evidencing the same or the assumption or guarantee thereof expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities or expressly provides that such Indebtedness is pari passu or junior to the
Securities. Notwithstanding the foregoing, the term "Senior Debt" shall include, without limitation, all Designated Senior Debt and shall not include Indebtedness of the Company to any Subsidiary. 


    "Significant Subsidiary" has the meaning assigned to it under Rule 405 of the Securities Act. 


    "Stated Maturity" has the meaning assigned to it in Section 2.1. 


    "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. 


    "TIA" means the Trust Indenture Act of 1939, as amended (15 U.S. Code Section 77aaa-77bbbb), as in effect on the
date of this Indenture; provided, however, that in the event the TIA is amended after such date, "TIA" means, to the extent required by such amendment,
the Trust Indenture Act of 1939, as so amended, or any successor statute. 


D–8







  




    "Trading Day" means: 



    (1) if
the applicable security is listed or admitted for trading on the New York Stock Exchange, a day on which the New York Stock Exchange is open for business; 



    (2) if
that security is not listed on the New York Stock Exchange, a day on which trades may be made on the Nasdaq National Market; 


    (3) if
that security is not so listed on the New York Stock Exchange and not quoted on the Nasdaq National Market, a day on which the principal U.S. securities exchange
on which the securities are listed is open for business; or 


    (4) if
the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or a Sunday or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive order to close. 




    "Trading Price" of a security on any date of determination means: 



    (1) the
closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security (regular way) on the New York Stock Exchange on
such date; 


    (2) if
such security is not listed for trading on the New York Stock Exchange on any such date, the closing sale price as reported in the composite transactions for the
principal U.S. securities exchange on which such security is so listed; 


    (3) if
such security is not listed on a U.S. national or regional securities exchange, the closing sales price as reported by the Nasdaq National Market; 


    (4) if
such security is not so reported, the last price quoted by Interactive Data Corporation for such security on such date or, if Interactive Data Corporation is not
quoting such price, a similar quotation service selected by the Company; 


    (5) if
such security is not so quoted, the average of the mid-point of the last bid and ask prices for such security on such date from at least two dealers
recognized as market-makers for such security selected by the Company for this purpose; or 


    (6) if
such security is not so quoted, the average of that last bid and ask prices for such security on such date from a dealer engaged in the trading of convertible
securities selected by the Company for this purpose. 




    "Trigger Event" has the meaning specified in Section 12.4(d). 


    "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. 



    "Underwriters" mean Lehman Brothers Inc., Banc of America Securities LLC, Robertson Stephens, Inc. and UBS Warburg LLC,
as underwriters, under the Underwriting Agreement. 


    "Underwriting Agreement" means the Underwriting Agreement, dated June 28, 2001, among the Company and the Underwriters relating
to the offering and sale of the Securities. 


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


    "Voting Stock" means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing body of such Person. 


D–9





 

    Section 1.2.  Incorporation by Reference of Trust Indenture Act.  



    Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. 


    The
following TIA terms used in this Indenture have the following meanings: 


    "indenture securities" means the Securities; 


    "indenture security holder" means a Holder; 


    "indenture to be qualified" means this Indenture; 


    "indenture trustee" or "institutional trustee" means the Trustee; and 


    "obligor" on the Securities means the Company and any other obligor on the indenture securities. 


    All
other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meanings assigned to them by
such definitions. 



    Section 1.3.  Rules of Construction.  


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



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


    (2) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United
States prevailing at the time of any relevant computation hereunder ("GAAP"); 



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


    (4) all
references to section and article numbers in this Indenture shall refer to sections and articles hereof, unless otherwise specified. 



 
 

ARTICLE 2
  
    THE SECURITIES    
  



 Section 2.1.  Title and Terms.    



    (a) The
Securities shall be designated as the "53/4% Convertible Subordinated Notes due 2006" of the Company. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is limited to $130.0 million (or $149.5 million if the Underwriters' over-allotment option set forth
in Section 2 of the Underwriting Agreement is exercised in full), except for Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other
Securities pursuant to Sections 2.7, 2.8, 2.12, 7.5, 10.7, 11.1 or 12.2 hereof. The Securities shall be issuable in denominations of $1,000 or integral multiples thereof. 


    (b) The
Securities shall mature on July 15, 2006 (the "Stated Maturity"). 



    (c) The
Securities shall bear Interest from July 5, 2001 until the principal amount thereof is paid or made available for payment, or until such date on which
the Securities are converted, redeemed or purchased as provided herein, (i) prior to the occurrence of a Reset Transaction, at a rate of 53/4% per annum, and
(ii) following the occurrence of a Reset Transaction, at the Adjusted 



D–10





 


Interest Rate related to such Reset Transaction to, but not including, the effective date of any succeeding Reset Transaction (as adjusted, if at all, the "Interest
Rate"). Interest shall be payable semiannually in arrears on each Interest Payment Date. 


    (d) Interest
on the Securities shall be computed (i) for any full semi-annual period for which a particular Interest Rate is applicable, on the basis
of a 360-day year of twelve 30-day months and (ii) for any period for which a particular Interest Rate is applicable for less than a full semiannual period for which
interest is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month. For purposes of
determining the Interest Rate, the Trustee may assume that a Reset Transaction has not occurred unless the Trustee has received an Officers' Certificate stating that a Reset Transaction has occurred
and specifying the Adjusted Interest Rate then in effect. 


    (e) Interest
shall be due and payable on a Security as follows: 



    (1) A
registered Holder of any Security as of the close of business on a Regular Record Date shall be entitled (except as otherwise indicated in this
Section 2.1(e)) to receive and shall receive, as the registered Holder as of such Regular Record Date, Interest on such Security on the corresponding Interest Payment Date (other than any
Security whose Stated Maturity is prior to such Interest Payment Date). 


    (2) In
the event that a Security becomes subject to redemption pursuant to Article 10 and the Redemption Date occurs after a Regular Record Date, the Person
whose Securities become subject to redemption (and only such Person rather than the Holder as of such Regular Record Date) shall be entitled to receive and shall receive accrued and unpaid Interest
from the preceding Interest Payment Date (or such earlier date on which Interest was last paid) to but not including the Redemption Date on such Security, even if such person is not the Holder of such
Security. 


    (3) In
the event that a Security becomes subject to purchase pursuant to Article 11, a Holder of any Security who exercises a purchase right with respect to such
Security shall be entitled to receive and shall receive Interest to but not including the applicable purchase date for such Security, which amount shall be included in the applicable purchase price
thereof. 


    (4) In
the event that a Security is converted pursuant to Article 12, the Holder who converts such Security on any date other than an Interest Payment Date shall
not be entitled to accrued and unpaid Interest from the preceding Interest Payment Date until the Conversion Date, or otherwise, on such Security, such amounts being deemed to have been paid by
receipt of shares of Common Stock in full rather than canceled, extinguished or forfeited; and, accordingly, a Holder which converts a Security after a Regular Record Date but prior to the
corresponding Interest Payment Date will receive accrued and unpaid Interest for such period on such Interest Payment Date but will be required to remit to the Company an amount equal to that Interest
at the time such Holder surrenders the Security for
conversion, provided that such Holder will not be required to remit such Interest if, prior to conversion, the Company has called such Security for
redemption and the Holder converts such Security prior to the applicable Redemption Date. 




    (f)  Payment
of any Principal of (to the extent paid in cash) and Interest on Global Securities shall be payable by the Company to the Depositary in immediately
available funds. 


    (g) Payment
of any Principal on Physical Securities shall be made at the office or agency of the Company maintained for such purpose, initially the Corporate Trust
Office of the Trustee. Interest on Physical Securities will be payable by (i) a U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as
such address shall appear in the Register, or (ii) upon application to the Registrar not later than the relevant record date by 



D–11





 


a Holder of a principal amount of Securities in excess of $5,000,000, wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the
Registrar to the contrary. 


    (h) The
Securities may be redeemable at the option of the Company as provided in and subject to Article 10. 


    (i)  The
Securities shall be purchased by the Company at the option of Holders as provided in and subject to Article 11. 


    (j)  The
Securities shall be convertible at the option of the Holders as provided in and subject to Article 12. 


    (k) The
Securities shall be subordinated in right of payment to Senior Debt of the Company as provided and subject to in Article 13 hereof. 


    
Section 2.2.  Form of Securities.    


    (a) The
Securities are issuable in fully registered, without coupons, in denominations of $1,000 and integral multiples of $1,000 above that amount, with applicable
legends as are provided for in Section 2.3 and in the form of one or more permanent global securities, except as provided herein (each a "Global
Security" and, collectively, the "Global Securities"), the form of which is contained in Exhibit A hereto. The Securities
are not issuable in bearer form. The terms and provisions contained in the form of Security shall constitute, and are hereby expressly made, a part of this Indenture and to the extent applicable, the
Company, and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. 


    
Section 2.3.  Global Security Legend.    


    (a) Global
Security Legend. 



Each
Global Security shall bear the following legend on the face thereof: 


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


THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR. 




    (b) Legend
for Physical Securities. 



Physical
Securities will also bear a legend substantially in the following form: 



THIS
SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD EITHER(A) NO SECURITIES OR 




D–12





 



(B) A MINIMUM AGGREGATE BENEFICIAL INTEREST IN THE SECURITIES OF AT LEAST (I) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000), IF SUCH HOLDER IS A NON-INSTITUTIONAL ACCREDITED
INVESTOR, OR (II) ONE HUNDRED THOUSAND DOLLARS ($100,000), IF SUCH HOLDER IS AN INSTITUTIONAL ACCREDITED INVESTOR. 




 Section 2.4.  Execution, Authentication, Delivery and Dating of the Securities.    


    (a) Two
Officers shall execute the Securities on behalf of the Company by manual or facsimile signature. Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Securities 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 authentication of such Securities. 



    (b) 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, and the Trustee in accordance with such Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise. 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 or on behalf of 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. The Trustee may appoint an authenticating agent or agents reasonably acceptable to
the Company with respect to the Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such agent. 


    (c) Each
Security shall be dated the date of its authentication. The Trustee shall authenticate and deliver Securities for original issue in an aggregate principal
amount of up to $130.0 million, (or $149.5 million if the Underwriters' over-allotment option set forth in Section 2 of the Underwriting Agreement is exercised in
full) upon one or more Company Orders without any further action by the Company. The aggregate principal amount of Securities Outstanding at any time may not exceed the amount set forth in the
foregoing sentence. 




    Section 2.5.  Registrar and Paying Agent.  


    The
Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the
"Registrar") and an office or agency where Securities may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Securities (the "Register") and of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional Paying Agents for the Securities. The term "Paying Agent" includes any additional paying agent and the term "Registrar" includes any additional
registrar. The Company may change any Paying Agent or Registrar without prior notice to any Holder. 


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



    (1) hold
all sums of money or Common Stock held by it for the payment of any amounts due and payable in respect of the Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture; 



D–13





 


    (2) give the Trustee notice of any Default by the Company in the making of any such payment; and 



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




    The
Company shall give prompt written notice to the Trustee of the name and address of any Paying Agent who is not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent or Registrar; provided,
however, that none of the Company, its subsidiaries or the Affiliates of the foregoing shall act: 



    (1) as
Paying Agent in connection with redemptions, offers to purchase and discharges, except as otherwise specified in this Indenture, and 


    (2) as
Paying Agent or Registrar if a Default or Event of Default has occurred and is continuing. 




    The
Company hereby initially appoints The Bank of New York as Registrar and Paying Agent for the Securities. 


    Section 2.6.  Paying Agent to Hold Assets in Trust.  



    Not
later than 11:00 a.m. (New York City time) on or prior to each due date of payments in respect of any Security, the Company shall deposit with one or more Paying Agents a
sum of money in immediately available funds or Common Stock sufficient to make such payments when so becoming due. The Company at any time may require a Paying Agent to pay all money or Common Stock
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money or Common Stock so paid over to the Trustee. 


    The
Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money
and Common Stock held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee of any Default by the Company in making any such payment. At any time
during the continuance of any such Default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and Common Stock so held in trust. 


    If
the Company shall act as a Paying Agent, it shall, prior to or on each such due date, segregate and hold in trust for the benefit of the Holders a sum sufficient with monies held
by all other Paying Agents, to pay such amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture, and shall promptly notify the
Trustee of its action or failure to act. 


    Section 2.7.  General Provisions Relating to Registration, Transfer and Exchange.  


    The
Securities are issuable only in registered form. A Holder may transfer a Security only by written application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration
of the transfer by the Registrar in the Register. Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial interest in the Global Security
shall be required to be reflected in a book-entry. 


    When
Securities are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Securities of other authorized
denominations, the 


D–14





 


Registrar shall register the transfer or make the exchange as requested if the requirements hereunder for such transactions are met (including that such Securities are duly endorsed or accompanied by
a written instrument of transfer duly executed by the Holder thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to Section 2.4, to permit
registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of
transfer or exchange or redemption of the Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable upon exchanges pursuant to Sections 2.14, 7.5 or 10.7). 


    Neither
the Company nor the Registrar shall be required to exchange or register a transfer of any Securities: 



    (1) for
a period of 15 days prior to the day of any selection of Securities for redemption under Article 10 hereof; 


    (2) so
selected for redemption or, if a portion of any Security is selected for redemption, such portion thereof selected for redemption; or 



    (3) surrendered
for conversion or, if a portion of any Security is surrendered for conversion, such portion thereof surrendered for conversion. 




    Section 2.8.  Book-Entry Provisions for the Global Securities.  


    (a)
The Global Securities initially shall: 



    (1) be
registered in the name of the Depositary; and 


    (2) be
delivered to the Trustee as custodian for such Depositary, for credit to the accounts of the members of, participants in, the Depositary (the
"Agent Members") holding the Securities evidenced thereby (or in the case of Securities held for purchasers who acquired such Securities, registered
with
the Depositary for credit to the accounts of the Agent Members then holding such Securities on behalf of Euroclear or Clearstream, as applicable). 




    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 such
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 such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing contained herein shall prevent the Company, the Trustee or any agent of the Company or Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any
Security. With respect to any Global Security deposited on behalf of the subscribers for the Securities represented thereby with the Trustee as custodian for the Depositary for credit to their
respective accounts (or to such other accounts as they may direct) at Euroclear or Clearstream, the provisions of the "Operating Procedures of the Euroclear System" and the "Terms and Conditions
Governing Use of Euroclear" and the "Management Regulations" and "Instructions to Participants" of Clearstream, respectively, shall be applicable to the Global Securities. 



    (b)
The registered Holder of a Global Security 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. 


D–15





 


    (c) A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary, and no such transfer to any such other Person may be registered. Beneficial
interests in a Global Security may be transferred in accordance with the rules and procedures of the Depositary. 


    (d)
If at any time: 



    (1) the
Depositary notifies the Company in writing that it is no longer willing or able to continue to act as Depositary for the Global Securities, or the Depositary
ceases to be a "clearing agency" registered under the Exchange Act and a successor depositary for the Global Securities is not appointed by the Company within 90 days of such notice or
cessation; 


    (2) the
Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Physical Securities under this Indenture in exchange for all
or any part of the Securities represented by a Global Security or Global Securities; or 


    (3) an
Event of Default has occurred and is continuing and the Registrar has received a request from the Depositary for the issuance of Physical Securities in exchange
for such Global Security or Global Securities, 




then
the Depositary shall surrender such Global Security or Global Securities to the Trustee for cancellation and the Company shall execute, and the Trustee, upon receipt of an Officers' Certificate
and Company Order for the authentication and delivery of Securities, shall authenticate and deliver in exchange for such Global Security or Global Securities, Physical Securities in an aggregate
principal amount equal to the aggregate principal amount of such Global Security or Global Securities. Such Physical Securities shall be registered in such names as the Depositary shall identify in
writing as the beneficial owners of the Securities represented by such Global Security or Global Securities (or any nominee thereof). 


    (e)
Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Security to the beneficial owners thereof pursuant to Section 2.8(d)
hereof, the Registrar shall reflect on its books and records the date and a decrease in the aggregate principal amount of such Global Security in an amount equal to the aggregate principal amount of
the beneficial interest in such Global Security to be transferred. 


    Section 2.9.  Holder Lists.  


    The
Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with
Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee prior to or on each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders relating to such Interest Payment Date or request, as applicable. 



    Section 2.10.  Persons Deemed Owners.  


    Prior
to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of receiving payment of principal of the Security or the payment of any Redemption Price or Change of Control Purchase Price in
respect thereof and Interest thereon, if any, for any purpose under this Indenture, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary. 


D–16







  




    Section 2.11.  Mutilated, Destroyed, Lost or Stolen Securities.  



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


    If
there is delivered to the Company and the Trustee 



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


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




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



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


    Every
new Security issued pursuant to this Section 2.11 in lieu of any destroyed, lost or stolen Security shall constitute an original contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and such new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. 


    The
provisions of this Section 2.11 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 2.12.  Treasury Securities.  


    In
determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of Holders for quorum purposes or have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any such determination as to the presence of a quorum or upon any such request, demand, authorization, direction, notice,
consent or waiver, only such Securities of which the Trustee has received written notice and are so owned shall be so disregarded. 


    Section 2.13.  Temporary Securities.  


    Pending
the preparation of Securities in definitive form, the Company may execute and the Trustee shall, upon written request of the Company, authenticate and deliver temporary
Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in definitive form but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security shall be executed by the Company and authenticated by
the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in definitive form. Without unreasonable delay, the Company will execute and
deliver to the Trustee 


D–17





 


Securities in definitive form (other than in the case of Securities in global form) and thereupon any or all temporary Securities (other than any such Securities in global form) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant to Section 9.2 and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal
principal amount of Securities in definitive form. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Securities shall in
all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in definitive form authenticated and delivered hereunder. 


    Section 2.14.  Cancellation.  


    All
Securities surrendered for payment, redemption, purchase, conversion, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered shall be canceled promptly by the Trustee, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. Upon written instructions of the Company, the Trustee shall dispose of canceled Securities in accordance with its procedures for the disposition of cancelled securities in effect as of the
date of such disposition. 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 the same are delivered to the Trustee for cancellation. 


    Section 2.15.  CUSIP Numbers.  



    The
Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and the Trustee shall use CUSIP numbers in notices of redemption or exchange as a convenience
to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any such notice 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 shall promptly notify the Trustee of any change in the CUSIP numbers. 


    Section 2.16.  Defaulted Interest.  



    If
the Company fails to make a payment of Principal of or Interest on any Security when due and payable, it shall pay such Interest on such amounts (to the extent lawful), which shall
be calculated using the applicable Interest Rate (such amounts, the "Defaulted Interest"); provided
that, if the Company elects to satisfy its obligation to pay the Change of Control Price in Common Stock pursuant to Section 11.1 and fails to have such shares delivered to the applicable
Holders, then it shall pay Defaulted Interest on the amount of cash that would otherwise have been payable pursuant to Section 11.1 if it had not made that election. It may elect to pay such
Defaulted Interest, plus any other Interest payable on it, to the Persons who are Holders on which the interest is due on a subsequent special record date. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each such Security. The Company shall fix any such special record date and payment date for such payment. At least 15 days
before any such special record date, the Company shall mail to Holders affected thereby a notice that states the special record date, the Interest Payment Date and amount to be paid. 


 
 

ARTICLE 3
  
    DISCHARGE of indenture    
  


    Section 3.1. Discharge of Liability on Securities.  When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.11) for cancellation or (ii) all outstanding Securities have become due and payable at their scheduled maturity within
one year or all outstanding Securities are scheduled for redemption within one year and the Company deposits 


D–18





 


with the Trustee cash or, in the event of a conversion pursuant to Article 12, Common Stock, sufficient to pay all amounts due and owing on all outstanding Securities on the date of their
scheduled maturity or the scheduled date of redemption (other than Securities replaced pursuant to Section 2.11), and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 5.8, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers' Certificate and Opinion of Counsel and at the cost and expense of the Company. 


    Section 3.2. Repayment to the Company.  The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law. After
return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and
the Trustee and the Paying Agent shall have no further liability to the Holders with respect to such money or securities for that period commencing after the return thereof. 


 
 

ARTICLE 4
  
    DEFAULTS AND REMEDIES    
  


    Section 4.1. Events of Default.  An "Event of Default", wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body): 


    (a)
the Company defaults in the payment of the Principal amount (a "Defaulted Payment") on any Outstanding Security when the same
becomes due and payable at its Stated Maturity, upon redemption, purchase, upon declaration, when due for purchase, by the Company or otherwise; 


    (b)
the Company defaults in the payment of an installment of Interest on any Security when it becomes due and payable and such default continues for a period of 30 days,
whether or not such payment is prohibited by Article 13 hereof; 


    (c)
the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or this Indenture and the default continues for a period of
60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given 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; 


    (d)
the Company defaults under any Indebtedness for money borrowed by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary, the aggregate outstanding principal amount of which is in an amount in excess of $20.0 million, for a period of 60 days
after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Outstanding Securities, which default (i) is
caused the Company's failure to pay when due principal or premium of or interest on such Indebtedness by the end of the applicable grace period, if any, unless such Indebtedness is discharged or
(ii) results in the acceleration of such Indebtedness because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such non-payment or
acceleration having been cured, waived, rescinded or annulled; 


    (e)
the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or 


D–19





 


other similar law or (ii) a decree or order adjudging the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, under any applicable
U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or 


    (f)
the commencement by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or
insolvent, or the consent by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, to the entry of a decree or order for relief in respect of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law,
or the consent by the Company to the filing of such petition or to the appointment of or the 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 the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary, of an assignment for the benefit of creditors, or the admission by the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, expressly in furtherance of any such action. 


    A
Default under clause (c) or (d) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% of the principal amount of the
Securities at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in
clause (c) or (d) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a "Notice of Default". 


    The
Trustee shall, within 90 days of the occurrence of a Default, give to the Holders of the Securities notice of all uncured Defaults known to it and written notice of any
event which with the giving of notice or the lapse of time, or both, would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto;  provided,
however, the Trustee shall be protected in withholding such notice if it, in good faith, determines that the withholding of such notice is in
the best interest of such Holders, except in the case of a Default in the payment of the Principal of or Interest on any of the Securities when due or in the payment of any redemption or Purchase
Right. 


D–20





 

    Section 4.2.  Acceleration of Maturity; Rescission and Annulment.  


    If
an Event of Default with respect to Outstanding Securities (other than an Event of Default specified in Section 4.1(e) or 4.1(f) hereof) occurs and is continuing, the
Trustee or the Holders of at least 25%
in principal amount of the Outstanding Securities, by written notice to the Company, may declare due and payable 100% of the principal amount of all Outstanding Securities, plus any accrued and unpaid
Interest to the date of payment. Upon a declaration of acceleration, such Principal amount and accrued and unpaid Interest to the date of payment shall be immediately due and payable. 


    If
an Event of Default specified in Section 4.1(e) and 4.1(f) occurs, the Principal and accrued and unpaid Interest on the Outstanding Securities shall become and be
immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder. 


    The
Holders either (a) through notice to the Trustee of not less than a majority of the principal amount of the Outstanding Securities, or (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority of the principal amount of the Outstanding Securities represented
at such meeting, may, on behalf of the Holders of all of the Securities, rescind and annul an acceleration and its consequences (including waiver of any defaults) if: 



    (1) all
existing Events of Default, other than the nonpayment of a Defaulted Payment on the Securities which have become due solely because of the acceleration, have
been remedied, cured or waived, and 


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




provided, however, that in the event such declaration of acceleration has been made based on the existence of an Event of Default under
Section 4.1(d) and the default with respect to Indebtedness for money borrowed which gave rise to such Event of Default has been remedied, cured or waived, then, without any further action by
the Holders, such declaration of acceleration shall be rescinded automatically and the consequences of such declaration shall be annulled. No such rescission or annulment shall affect any subsequent
Default or impair any right consequent thereon. 


    Section 4.3.  Other Remedies.  



    If
an Event of Default with respect to Outstanding Securities occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the
Defaulted Payment or Interest due and payable on the Securities or to enforce the performance of any provision of the Securities. 


    The
Trustee may maintain a proceeding in which it may prosecute and enforce all rights of action and claims under this Indenture or the Securities, even if it does not possess any of
the Securities or does not produce any of them in the proceeding. 


    Section 4.4.  Waiver of Past Defaults.  



    The
Holders, either (a) through the written consent of not less than a majority of the principal amount of the Outstanding Securities, or (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of at least a majority of the principal amount of the Outstanding Securities represented
at such meeting, may, on behalf of the Holders of all of the Securities, waive an existing Default or Event of Default, except a Default or Event of Default: 



    (1) set
forth in Sections 4.1(a) and (b), provided, however, that subject to Section 4.7, the Holders of a
majority of the principal amount of the Outstanding Securities may rescind an 



D–21





 


acceleration and its consequences, including any related payment default that resulted from such acceleration); or 


    (2) in
respect of a covenant or provision hereof which, under Section 7.2 hereof, cannot be modified or amended without the consent of the Holders 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;  provided, however, that no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon. 


    Section 4.5.  Control by Majority.  


    The
Holders of a majority of the principal amount of the Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture)
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. However, the
Trustee may refuse to follow any direction that: 



    (1) conflicts
with any law or with this Indenture; 


    (2) the
Trustee determines may be unduly prejudicial to the rights of the Holders not joining therein; or 


    (3) may
expose the Trustee to personal liability. 




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


    Section 4.6.  Limitation on Suit.  


    No
Holder of any Security shall have any right to pursue any remedy with respect to this Indenture or the Securities (including, instituting any proceeding, judicial or otherwise,
with respect to this Indenture or for the appointment of a receiver or trustee) unless: 



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


    (2) the
Holders of at least 25% of the principal amount of the Outstanding Securities shall have made written request to the Trustee to pursue the remedy; 


    (3) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred in complying with such request; 


    (4) the
Trustee has failed to comply with the request for 60 days after its receipt of such notice, request and offer of indemnity; and 


    (5) during
such 60-day period, no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority of the
principal amount of the Outstanding Securities (or such amount as shall have acted at a meeting pursuant to the provisions of this Indenture); 




provided, however, that no one or more of such Holders may use this Indenture to prejudice the rights of another Holder or to obtain preference or
priority over another Holder. 


    Section 4.7.  Unconditional Rights of Holders to Receive Payment and to Convert.  



    Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the Principal on and
Interest in respect of the Securities held by such Holder, on or after the respective due dates, to convert the 


D–22





 


Securities in accordance with Article 12 or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, and such rights shall not be
impaired or affected adversely without the consent of such Holder. 


    Section 4.8.  Collection of Indebtedness and Suits for Enforcement by the Trustee.  


    The
Company covenants that if: 



    (1) a
Default or Event of Default is made in the payment of Interest on any Security when such Interest becomes due and payable and such Default or Event of Default
continues for a period of 30 days; or 



    (2) a
Default or Event of Default is made in the payment of the Principal on any Security when the same becomes due and payable at its Stated Maturity, upon redemption,
upon declaration when due for purchase by the Company or otherwise, 




then
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the entire Principal then due and payable (as expressed therein or as a result of any
acceleration effected pursuant to Section 4.2 hereof) on such Securities for any such amounts and, to the extent legally enforceable, Interest 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
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, wherever situated. 


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


    Section 4.9.  Trustee May File Proofs of Claim.  


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



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


    (2) to
collect and receive any monies, Common Stock or other property payable or deliverable on any such claim and to distribute the same, 




and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceedings is hereby authorized by each Holder of Securities to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, 


D–23





 


expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 5.8. 


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



    Section 4.10.  Restoration of Rights and Remedies.  


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


    Section 4.11.  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 2.11, no right or
remedy conferred in this Indenture upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. 


    Section 4.12.  Delay or Omission Not Waiver.  


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


    Section 4.13.  Priorities.  


    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: 



    FIRST:
to the payment of all amounts due to the Trustee under Section 5.8; 


    SECOND:
to Holders for amounts due and unpaid on the Securities for the Principal or Interest as applicable, ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and 


    THIRD:
any remaining amounts shall be repaid to the Company. 




    The
Trustee may fix a special record date and payment date for any payment to Holders pursuant to this Section 4.13. At least 15 days before such special record date,
the Trustee shall mail to each Holder and the Company a notice that states the special record date, the payment date and the amount to be paid. 


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    Section 4.14.  Undertaking for Costs.  


    All
parties to this Indenture agree, and each Holder of any Security by such Holder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% of the principal amount of the Outstanding Securities, or to any suit instituted by
any Holder of any Security for the enforcement of (i) payments pursuant to Section 4.7, repurchase rights in accordance with Article 11 or (iii) conversion rights in
accordance with Article 12. This Section 4.14 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as
permitted by the TIA. 


    Section 4.15.  Waiver of Stay or Extension Laws.  


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


 
 

ARTICLE 5    
  


THE TRUSTEE  


    Section 5.1.  Certain Duties and Responsibilities.  


    (a) Except
during the continuance of an Event of Default, 



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


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




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


    (c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that: 



    (1) This
paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 5.1; 



D–25





 


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


    (3) The
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it of the
Holders of a majority of the principal amount of the Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the
provisions of this Indenture) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture. 




    (d) Whether
or not herein 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 5.1. 


    (e) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it
against any loss, liability, cost or expense (including, without limitation, reasonable fees and expenses of counsel). 


    (f)  The
Trustee shall not be obligated to pay interest on any money or other assets received by it unless otherwise agreed in writing with the Company. Assets held in
trust by the Trustee need not be segregated from other funds except to the extent required by law. 


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


    (h) The
Trustee shall not be deemed to have notice or actual knowledge of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact a Default is received by the Trustee pursuant to Section 14.2 hereof, and such notice references the Securities and this Indenture. 


    (i)  The
rights, privileges, protections, immunities and benefits given to the Trustee hereunder, 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 Paying Agent, authenticating agent, Conversion Agent or Registrar acting hereunder. 


    (j)  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. 


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    Section 5.2.  Certain Rights of Trustee.  


    Subject
to the provisions of Section 5.1 hereof and subject to Section 315(a) through (d) of the TIA: 



    (1) The
Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document. 


    (2) Before
the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officers' Certificate or Opinion of Counsel. 


    (3) The
Trustee may act through attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care. 



    (4) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith which it believed to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture, unless the Trustee's conduct constitutes negligence. 


    (5) The
Trustee may consult with counsel of its selection and the advice of such counsel as to matters of law or legal interpretation shall be full and complete
authorization and protection in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. 


    (6) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of
the Company. 


    (7) The
permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein. 




    Section 5.3.  Individual Rights of Trustee.  


    The
Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same
rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as such term is defined in Section 310(b) of the TIA), it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue as trustee (to the extent permitted under Section 310(b) of the TIA) or resign. Any agent may do the same
with like rights and duties. The Trustee is also subject to Sections 5.11 and 5.12 hereof. 


    Section 5.4.  Money Held in Trust.  


    Money
held by the Trustee in trust hereunder shall 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 expressly agreed with the Company. 


    Section 5.5.  Trustee's Disclaimer.  



    The
recitals contained herein and in the Securities (except for those in the certificate 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 5.6.  Notice of Defaults.  



    Within
90 days after the occurrence of any Default or Event of Default hereunder of which a Responsible Officer of the Trustee has received written notice, the Trustee shall
give notice to Holders, 


D–27





 


unless such Default or Event of Default shall have been cured or waived; provided, however, that, except in the case of a Default or Event of Default
described in Sections 4.1(a) or (b), the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Holders. The second sentence of this Section 5.6 shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of a Default unless a Responsible Officer of the Trustee has received written notice of such
Default. 


    Section 5.7.  Reports by Trustee to Holders.  


    The
Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the TIA at the times and in
the manner provided by the TIA. 


    A
copy of each report at the time of its mailing to Holders shall be filed with the SEC, if required, and each stock exchange, if any, on which the Securities and the Common Stock are
listed. The Company shall promptly notify the Trustee when the Securities or the Common Stock become listed on any stock exchange. 


    Section 5.8.  Compensation and Indemnification.  


    The
Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as agreed to in writing by the Trustee and the
Company (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Company covenants and agrees to pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ), except to the extent that any such expense, disbursement or advance is
due to its negligence or bad faith. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.1, the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any bankruptcy law. The Company also covenants to indemnify the
Trustee and its officers, directors, employees and agents for, and to hold such Persons harmless against, any loss, liability or expense incurred by them, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder or the performance of their duties hereunder, including the costs and expenses of defending themselves against or investigating
any claim of liability in the premises, except to the extent that any such loss, liability or expense was due to the negligence or willful misconduct of such Persons. The obligations of the Company
under this Section 5.8 to compensate and indemnify the Trustee and its officers, directors, employees and agents and to pay or reimburse such Persons for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee. Such additional indebtedness
shall be a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
"Trustee" for purposes of this Section 5.8 shall include any predecessor Trustee, in its capacity as Trustee, but the negligence or willful misconduct of any Trustee shall not affect the
indemnification of any other Trustee. 


    Section 5.9.  Replacement of Trustee.  



    A
resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this
Section 5.9. 


D–28





 


    The Trustee may resign and be discharged from the trust hereby created by so notifying the Company in writing. The Holders of at least a majority of the principal amount of
Outstanding Securities may remove the Trustee by so notifying the Trustee and the Company in writing. The Company must remove the Trustee if: 



    (i)  the
Trustee fails to comply with Section 5.10 hereof or Section 310 of the TIA; 


    (ii) the
Trustee becomes incapable of acting; 


    (iii) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; or 


    (iv) a
Custodian or public officer takes charge of the Trustee or its property. 




    If
the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Company shall promptly appoint a successor Trustee. The Trustee shall be
entitled to payment of its fees and reimbursement of its expenses while acting as Trustee. Within one year after the successor Trustee takes office, the Holders of at least a majority of the principal
amount of Outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company. 


    Any
Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee if the Trustee fails to comply with
Section 5.10. 


    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 or removal, the
resigning or removed Trustee, as applicable, may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee. 


    A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The Company shall issue a notice of the successor Trustee's
succession to the Holders. Upon payment of its charges, the retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject nevertheless to its lien, if
any, provided for in Section 5.8 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 5.9 hereof, the Company's obligations under Section 5.8 hereof shall
continue for the benefit of the retiring Trustee with respect to expenses, losses and liabilities incurred by it prior to such replacement. 


    Section 5.10.  Successor Trustee by Merger, Etc.  


    Subject
to Section 5.11 hereof, if the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the successor entity without any further act shall be the successor Trustee as to the Securities. 


    Section 5.11.  Corporate Trustee Required; Eligibility.  


    The
Trustee shall at all times satisfy the requirements of Section 310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have (or, in the case of a
corporation included in a bank holding company system, the related bank holding company shall at all times have), a combined capital and surplus of at least $50 million as set forth in its (or
its related bank holding company's) most recent published annual report of condition. The Trustee is subject to Section 310(b) of the TIA. 


D–29





 

    Section 5.12.  Collection of Claims Against the Company.  


    The
Trustee is subject to Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the TIA to the extent indicated therein. 


 
 

ARTICLE 6    
  


CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE  


    Section 6.1.  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: 



    (1) in
the event that the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person 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 shall be a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States of America, any
State thereof or the District of Columbia; 


    (2) in
the event that the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the entity surviving such transaction or transferee entity is not the Company, then such surviving or transferee entity shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of all and any amounts when due on all the Securities and the performance of
every covenant of this Indenture and the Securities on the part of the Company to be performed or observed and shall have provided for conversion rights provided in Article 12; 


    (3) 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 


    (4) the
Company shall have 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 and that all conditions precedent herein
provided for relating to such transaction have been complied with. 




    Section 6.2.  Successor Corporation Substituted.  


    Upon
any consolidation or merger by the Company with or into any other corporation or any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety to any Person, in accordance with Section 6.1 hereof, the successor corporation 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 corporation had been
named as the Company herein. In the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the "Company" in the first paragraph of this
Indenture or any successor Person which shall theretofore become such in the manner described in Section 6.1 hereof), 


D–30





 


except in the case of a lease to another Person, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities and may be dissolved and
liquidated. 


 
 

ARTICLE 7    
  


AMENDMENTS, SUPPLEMENTS AND WAIVERS  


    Section 7.1.  Without Consent of Holders of Securities.  



    Without
the consent of any Holders of Securities, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may amend this Indenture and
the Securities to: 


    (a) add
to the covenants of the Company for the benefit of the Holders of Securities; 


    (b) surrender
any right or power herein conferred upon the Company; 


    (c) provide
for conversion rights of Holders of Securities if any reclassification or change of the Company's Common Stock or any consolidation, merger or sale of all
or substantially all of the Company's assets occurs; 


    (d) provide
for the assumption of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer or lease pursuant
to Article 6 hereof; 


    (e) reduce
the Conversion Price; provided, however, that such reduction in the Conversion Price shall not adversely
affect the interest of the Holders of Securities (after taking into account tax and other consequences of such reduction); 


    (f)  comply
with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; 



    (g) cure
any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or to
make any other provisions with respect to matters or questions arising under this Indenture which the Company may deem necessary or desirable and which shall not be inconsistent with the provisions of
this Indenture; provided, however, that such action pursuant to this clause (g) does not, in the good faith opinion of the Board of Directors of
the Company (as evidenced by a Board Resolution), adversely affect the interests of the Holders of Securities in any material respect; and 



    (h) add
or modify any other provisions herein with respect to matters or questions arising hereunder which the Company and the Trustee may deem necessary or desirable
and which will not adversely affect the interests of the Holders of Securities. 


    Section 7.2.  With Consent of Holders of Securities.  


    Except
as provided below in this Section 7.2, this Indenture or the Securities may be amended, modified or supplemented, and noncompliance in any particular instance with any
provision of this Indenture or the Securities may be waived, in each case (i) with the written consent of the Holders of at least a majority of the principal amount of the Outstanding
Securities or (ii) by the adoption of a resolution, at a meeting of Holders of the Outstanding Securities at which a quorum is present, by the Holders of a majority of the principal amount of
the Outstanding Securities represented and voting at such meeting pursuant to Section 8.4. 


    Without
the written consent or the affirmative vote of each Holder of Securities affected thereby, an amendment or waiver under this Section 7.2 may not: 


    (a) change
the Stated Maturity of the principal amount of, or any installment of Interest on, any Security; 


D–31





 


    (b) reduce the Principal or Interest payable on any Security; 


    (c) change
the currency of any amount owed or owing under the Security or any interest thereon from U.S. Dollars; 


    (d) alter
or otherwise modify the Interest Rate on any Security, or the manner of calculation thereof, or extend time for payment of any amounts due and payable to the
Holders of the Securities; 


    (e) impair
the right of any Holder to institute suit for the enforcement of any payment in or with respect to any Security; 


    (f)  modify
the obligation of the Company to maintain an office or agency in The City of New York pursuant to Section 9.2; 


    (g) adversely
affect the purchase right of the Holders of the Securities as provided in Article 11 or the right of the Holders of the Securities to convert any
Security as provided in Article 12; 


    (h) modify
the provisions of Article 10 in a manner adverse to the Holders of the Securities; 


    (i)  modify
the provisions of Article 13 in a manner adverse to the Holders of the Securities; 


    (j)  modify
any of the provisions of this Section, or reduce the percentage of voting interests required to waive a default, except to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or 


    (k) reduce
the requirements of Section 8.4 hereof for quorum or voting, or reduce the percentage of the 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 provided for in this Indenture. 



    It
shall not be necessary for any Act of Holders of Securities under this Section 7.2 to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof. 


    Section 7.3.  Compliance with Trust Indenture Act.  


    Every
amendment to this Indenture or the Securities shall be set forth in a supplemental indenture that complies with the TIA as then in effect. 


    Section 7.4.  Revocation of Consents and Effect of Consents or Votes.  



    Until
an amendment, supplement or waiver becomes effective, a written consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security; provided,
however, that unless a record date shall have been established, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. 


    An
amendment, supplement or waiver becomes effective on receipt by the Trustee of written consents from or affirmative votes by, as applicable, the Holders of the requisite percentage
of the principal amount of the Outstanding Securities, and thereafter shall bind every Holder of Securities; provided, however, if the amendment,
supplement or waiver makes a change described in any of the clauses (a) through (k) of Section 7.2, the amendment, supplement or waiver shall bind only each Holder of a Security
which has consented to it or voted for it, as applicable, and every subsequent Holder of a Security or portion of a Security that evidences the same indebtedness as the Security of the consenting or
affirmatively voting Holder, as applicable. 


D–32







  




    Section 7.5.  Notation on or Exchange of Securities.  


    If
an amendment, supplement or waiver changes the terms of a Security: 


    (a) the
Trustee may require the Holder of a Security to deliver such Securities to the Trustee, the Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Security thereafter authenticated; or 


    (b) if
the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects
the changed terms. 


    Failure
to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver. 


    Section 7.6.  Trustee to Sign Amendment, Etc.  


    The
Trustee shall sign any amendment authorized pursuant to this Article 7 if the Trustee reasonably determines the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If the Trustee reasonably determines the amendment does adversely affect the rights, duties, liabilities or immunities of the Trustee, the Trustee may but
need not sign it. In signing or refusing to sign any amendment hereunder, the Trustee shall be entitled to receive and shall be fully protected in relying upon an Officers' Certificate and an Opinion
of Counsel as conclusive evidence that such amendment is authorized or permitted by this Indenture and that all conditions precedent relating thereto have been complied with. 


 
 

ARTICLE 8
  
    MEETING OF HOLDERS OF SECURITIES    
  


    Section 8.1.  Purposes for Which Meetings May Be Called.  


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


    Section 8.2.  Call Notice and Place of Meetings.  


    (a) The
Trustee may at any time call a meeting of Holders of Securities for any purpose specified in Section 8.1, to be held at such time and at such place in
The City of New York. Notice of every meeting of Holders of Securities, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 14.2, not less than 21 nor more than 180 days prior to the date fixed for the meeting. 


    (b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the principal amount of the Outstanding Securities shall have
requested the Trustee to call a meeting of the Holders of Securities for any purpose specified in Section 8.1 hereof, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the Company or the Holders of Securities in the amount specified, as applicable, may determine the time and the place in The City of New York
for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section 8.2. 


    Section 8.3.  Persons Entitled to Vote at Meetings.  


    To
be entitled to vote at any meeting of Holders of Securities, a Person shall be (a) a Holder of one or more Outstanding Securities, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities by such Holder or Holders. The only 


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Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel. 


    Section 8.4.  Quorum; Action.  


    The
Persons entitled to vote a majority of the principal amount of the Outstanding Securities shall constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities, be dissolved. In any other case, the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 8.2(a), except that such notice need be given only once and not less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage of the principal amount of the Outstanding Securities which shall constitute a quorum. 



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


    At
a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by Section 7.2) shall be
effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority of the principal amount of Outstanding Securities represented and voting at such meeting. 



    Any
resolution passed or decisions taken at any meeting of Holders of Securities duly held in accordance with this Section shall be binding on all the Holders of Securities, whether
or not present or represented at the meeting. 


    Section 8.5.  Determination of Voting Rights; Conduct and Adjournment of Meetings.  


    (a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved in the manner specified in Section 14.4 hereof and the appointment of any proxy shall be proved in the manner specified in
Section 14.4 hereof. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in
Section 14.4 hereof or other proof. 


    (b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 8.2(b), in which case the Company or the Holders of Securities calling the meeting, as applicable, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority of the principal amount of the Outstanding
Securities represented at the meeting. 


    (c) At
any meeting, each Holder of a Security or proxy shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by him;  provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding and ruled 


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by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security or proxy. 


    (d) Any
meeting of Holders of Securities duly called pursuant to Section 8.2 at which a quorum is present may be adjourned from time to time by Persons entitled
to vote a majority of the principal amount of the Outstanding Securities represented at the meeting, and the meeting may be held as so adjourned without further notice. 



    Section 8.6.  Counting Votes and Recording Action of Meetings.  


    The
vote upon any resolution submitted to any meeting of Holders of Securities shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities or
of their representatives by proxy and the principal amount and serial numbers of the Outstanding Securities held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as provided in Section 8.2 and, if applicable, Section 8.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. 


 
 

ARTICLE 9    
  


COVENANTS  


    Section 9.1.  Payment of Principal, Redemption Price, Change of Control Purchase Price and
Interest.  


    The
Company will duly and punctually pay the Principal of and Interest on the Securities when and if at any time any such foregoing amounts are due and payable in accordance with the
terms of the Securities and this Indenture. The Company will deposit or cause to be deposited with the Trustee as directed by the Trustee, no later than the day of the Stated Maturity of any Security,
the date of any installment of Interest or any other date such payment is otherwise due. 


    Section 9.2.  Maintenance of Offices or Agencies.  


    The
Company hereby appoints the Trustee's Corporate Trust Office as its office in the Borough of Manhattan, The City of New York, where Securities may be: 



    (i)  presented
or surrendered for payment; 


    (ii) surrendered
for registration of transfer or exchange; 


    (iii) surrendered
for conversion; 


and
where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. 


    The
Company will maintain in 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, where Securities may be surrendered for conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be
served. The Company will 


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give prompt written notice to the Trustee, and notice to the Holders in accordance with Section 14.2 hereof, of the appointment or termination of any such agents and of the location and any
change in the location of any such office or agency. 


    If
at any time the Company shall fail to maintain any such required office or agency in The City of New York, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made at, and notices and demands may be served on, the Corporate Trust Office of the Trustee. 


    Section 9.3.  Corporate Existence.  


    Subject
to Article 6 hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter
and statutory) and franchises of the Company and each Subsidiary; provided, however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof is not disadvantageous in any material respect to the Holders. 


    Section 9.4.  Reports.  


    (a) The
Company, shall deliver to the Trustee within 15 days after it files them with the Commission copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any materials
for which the Company has sought and received confidential treatment by the SEC. The Company also shall comply with the other provisions of Section 314(a) of the TIA. 


    (b) If
at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder of a Security, the Company, will promptly
furnish or cause to be furnished to such Holder or to a prospective purchaser of such Security designated by such Holder, as applicable, the
information, if any, required to be delivered by it pursuant to Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with the resale of such
Security; provided, however, that the Company shall not be required to furnish such information in connection with any request made on or after the date
which is two years from the later of the date such security was last acquired from the Company or an "affiliate" (as defined under Rule 144 under the Securities Act) of the Company. 


    Section 9.5.  Compliance Certificate.  


    The
Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an Officer's Certificate signed by two Officers of the Company
stating that in the course of the performance by the signers of their duties as Officers of the Company, they would normally have knowledge of any failure by the Company to comply with all conditions,
or Default by the Company with respect to any covenants, under this Indenture, and further stating whether or not they have knowledge of any such failure or Default and, if so, specifying each such
failure or Default and the nature thereof. In the event an Officer of the Company comes to have actual knowledge of a Default, regardless of the date, the Company shall deliver an Officers'
Certificate to the Trustee within five Business Days of obtaining such actual knowledge specifying such Default and the nature and status thereof. 


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ARTICLE 10    
  


REDEMPTION OF SECURITIES  


    Section 10.1.  Optional Redemption.  


    (a) At
any time on or after July 15, 2004, except for Securities that it is required to purchase pursuant to Section 11.1 or required to convert pursuant
to Section 12.1, the Company may, at its option, redeem the Securities in whole at any time or in part from time to time, on any date prior to the Stated Maturity of such Securities, upon
notice as set forth in Section 10.4, at the Redemption Price (expressed in
percentages of the principal amount) set forth below if, but only if, redeemed on a Redemption Date occurring during the 12-month period beginning on of the dates indicated: 



	During the Twelve Months Commencing
 
	 	Redemption

Price

	July 15, 2004	 	102.8750%
	July 15, 2005	 	101.4375%






    (b) If
the Company exercises its option to redeem the Securities pursuant to this Section 10.1, a Holder may nevertheless exercise its right to have its
Securities purchased pursuant to Section 11.1, if applicable, and to convert such Securities pursuant to Article 12, in each case, until the close of business two Business Days
immediately preceding the Redemption Date. 


    (c) The
Company shall pay any Interest to the Holder of the Securities called for redemption (including those Securities which are converted into Common Stock after the
date the notice of the redemption is mailed and prior to the Redemption Date) accrued but not paid to, but excluding, the Redemption Date pursuant to Section 2.1(e);  provided, however, that if the
Redemption Date is an Interest Payment Date, the Company shall pay the Interest to the Holder of the Security at the
close of business on such Interest Payment Date. 


    Section 10.2.  Notice to Trustee.  


    If
the Company elects to redeem Securities pursuant to the provisions of Section 10.1 hereof (such election to be ordered by a Board Resolution), it shall notify the Trustee at
least 20 days prior to the intended Redemption Date (unless a shorter notice shall be satisfactory to the Trustee) of (i) such intended Redemption Date, (ii) the principal amount
of Securities to be redeemed and (iii) the CUSIP numbers of the Securities to be redeemed. 


    Section 10.3.  Selection of Securities to Be Redeemed.  



    If
fewer than all the Securities are to be redeemed, the Trustee shall select the particular Securities to be redeemed from the Outstanding Securities by a method that complies with
the requirements of any exchange on which the Securities are listed, or, if the Securities are not listed on an exchange, on a pro
rata basis or by lot or in accordance with any other method the Trustee considers fair and appropriate. The Trustee may select for redemption portions of the principal amount
of Securities that have denominations larger than $1,000. 


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


    The
Trustee shall promptly notify the Company and the Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. 


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    If any Security selected for partial redemption is converted or elected to be purchased in part before termination of the conversion right or purchase right with respect to the
portion of the Security so selected, the converted or purchased portion of such Security shall be deemed to be the portion selected for redemption; provided,
however, that the Holder of such Security so converted or purchased and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed
redemption than such Holder would have otherwise been entitled to receive upon conversion or purchase of such Security subject to Section 2.1(e). Securities which have been converted or
purchased during a selection of Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection. 



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


    Section 10.4.  Notice of Redemption.  


    Notice
of redemption shall be given in the manner provided in Section 14.2 to the Holders of Securities to be redeemed. Such notice shall be given not less than 20 nor more
than 60 days prior to the intended Redemption Date. 


    All
notices of redemption shall state: 



    (1) such
intended Redemption Date; 


    (2) the
Redemption Price and Interest accrued and unpaid to, but excluding, the Redemption Date, if any; 


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



    (4) that
on the Redemption Date the Redemption Price and Interest accrued and unpaid to, but excluding, the Redemption Date, if any, will become due and payable upon
each such Security to be redeemed; 


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


    (6) the
place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued and unpaid Interest, and 



    (7) the
CUSIP number of the Securities. 




    The
notice given shall specify the last date on which exchanges or transfers of Securities may be made pursuant to Section 2.7, and shall specify the serial numbers of
Securities and the portions thereof called for redemption. 


    Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's written requests delivered at least 20 days
prior to the date of the mailing of such Notice (unless a shorter period shall be acceptable to the Trustee), by the Trustee in the name of and at the expense of the Company. 



    Section 10.5.  Effect of Notice of Redemption.  


    Notice
of redemption having been given as provided in Section 10.4 hereof, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein 


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specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued and unpaid Interest) such Securities shall cease to bear Interest. Upon
surrender of any such Security for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price; provided,
however, the installments of Interest on Securities whose Stated Maturity is prior to or on the Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the relevant Regular Record Date. 


    If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear Interest from the
Redemption Date at the Interest Rate. 


    Section 10.6.  Deposit and Payment of Redemption Price.  



    Prior
to or on any Redemption Date, the Company shall deposit with the Trustee or with a Paying 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 in Section 2.4) an amount of money in immediately available funds sufficient to pay the Redemption Price, and accrued and
unpaid Interest in respect of all the Securities to be redeemed on that Redemption Date from the last Interest Payment Date to but not including the Redemption Date, other than any Securities called
for redemption on that date which have been converted prior to the date of such deposit, and accrued and unpaid Interest on such Securities. The Trustee and Paying Agent shall then cause such funds to
be paid to the Holders of the Securities being redeemed in accordance with this Article. 


    If
any Security delivered for redemption shall not be so redeemed by payment to the Holders thereof on the Redemption Date, the principal amount of such Security shall, until it is
redeemed, bear Interest on the Redemption Date to but not including the actual date of redemption at the applicable Interest Rate, and each such Security shall remain convertible into shares of Common
Stock pursuant to Article 12 until such Security shall have been so redeemed. 


    If
any Security called for redemption is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any Predecessor Security to receive Interest as provided in
Section 2.1(e)) be paid to the Company upon request by the Company or, if then held by the Company, shall be discharged from such trust. 


    Section 10.7.  Securities Redeemed in Part.  


    Any
Security which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 9.2 hereof (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 the
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 principal amount equal to and in exchange for the unredeemed portion of the Security so surrendered. 


 
 

ARTICLE 11    
  


PURCHASE AT THE OPTION OF A HOLDER UPON A CHANGE OF CONTROL  


    Section 11.1.  Purchase Right.  


    In
the event that a Change in Control shall occur, each Holder shall have the right (the "Purchase Right"), at the Holder's option, but
subject to the provisions of Section 11.2 hereof, to require the Company to purchase, and upon the exercise of such right the Company shall purchase, all of such 


D–39





 


Holder's Securities not theretofore called for redemption, or any portion of the principal amount thereof that is equal to $1,000 or an integral multiple thereof as directed by such Holder pursuant to
Section 11.3 (provided that no single Security may be purchased in part unless the portion of the principal amount of such Security to be Outstanding after such purchase is equal to $1,000 or
an integral multiple thereof), on the date (the "Change of Control Purchase Date") that is a Business Day no earlier than 30 days nor later than
60 days after the date of the Change of Control Notice at a purchase price equal to 100% of the principal amount of the Securities to be purchased (the "Change
of Control Purchase Price"), plus accrued and unpaid Interest to, but excluding, the Change of Control Purchase Date; provided,
however, that (i) installments of Interest on Securities whose Stated Maturity is prior to or on the Change of Control Purchase Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such on the relevant Regular Record Date according to their terms and the provisions of Section 2.1 hereof and
(ii) no Holder shall have a Purchase Right upon a Change of Control unless prior to any payment of the Change of Control Purchase Price on the Change of Control Purchase Date the Company shall
have made any applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in connection with such change of control offers;  provided,
further that the Company may elect to satisfy its obligation with respect to the Holders' Purchase Right (in cash or Common Stock or a
combination thereof) by delivering to the applicable Holders the number of shares of Common Stock equal to (i) the Change of Control Purchase Price (to the extent not paid in cash) divided by
(ii) 95% of the average of the Trading Prices per share of Common Stock for the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Purchase
Date. 


    Section 11.2.  Change of Control Notice.  



    No
later than 30 days after the occurrence of a Change of Control, the Company shall mail a written notice of the Change of Control (the "Change of
Control Notice") by first- class mail to the Trustee and to each Holder (and to beneficial owners as required by applicable law) pursuant to Section 14.2. The Change of
Control Notice shall include a form of notice (the "Change of Control Purchase Notice") to be completed by the Holder and delivered to the Paying Agent
pursuant to Section 11.3, and shall state the following: 



    (1) that
it is a Change of Control Notice pursuant to this Section; 


    (2) the
events causing a Change of Control and the date of such Change of Control; 


    (3) the
procedures with which such Holder must comply to exercise its right to have its Securities purchased pursuant to Section 11.1, including the date by
which the completed Change of Control Purchase Notice pursuant to Section 11.3 and the Securities the Holder elects to have purchased pursuant to Section 11.1 must be delivered to the
Paying Agent in order to have such Securities purchased by the Company pursuant to Section 11.1, the name and address of the Paying Agent and that the Securities as to which a Change of Control
Purchase Notice has been given may be converted, if they are otherwise convertible pursuant to Article 12, only if the completed and delivered Change of Control Purchase Notice has been
withdrawn in accordance with the terms of the Indenture, the Holder's conversion rights pursuant to Article 12 and the Conversion Rate then in effect and any adjustments thereto; 


    (4) the
Change of Control Purchase Date and the Change of Control Purchase Price; 


    (5) that,
unless the Company defaults in making payment of such Change of Control Purchase Price, Interest on the Securities surrendered for purchase by the Company
will cease to accrue on and after the Change of Control Purchase Date; 


    (6) the
CUSIP number of the Securities; and 



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    (7) whether the Change of Control Purchase Price shall be paid by the Company in cash, by the delivery of Common Stock or a combination thereof and, if the Company
elects to pay with a combination of cash and Common Stock, such notice shall provide the proportion of cash and Common Stock. 




    No
failure by the Company to give the foregoing Change of Control Notice shall limit any Holder's right to exercise its rights pursuant to Section 11.1 or affect the validity
of the proceedings for the purchase of its Securities hereunder. 


    Section 11.3.  Delivery of Change of Control Purchase Notice; Form of Change of Control Purchase Notice; Withdrawal of Change of Control
Purchase Notice.  


    (a) The
Company shall deliver, or cause the Trustee or Paying Agent, to deliver, to all Holders (and beneficial holders of the Securities) a form of Change of Control
Purchase Notice, which with respect to Holders purchase rights set forth in Section 11.1, shall be delivered to such Holders at least 30 days prior to the Change of Control Purchase Date
and, as set forth in Section 11.2, shall be included in the Change of Control Notice; provided that the delivery of such form of Change of
Control Purchase Notice to the Holders shall be made in the Company's name and at the Company's expense and the text of such form of Change of Control Purchase Notice shall be prepared by the Company
pursuant to clause (b) of this Section. 



    (b) The
form of Change of Control Purchase Notice shall provide instructions regarding procedures with which holders must comply to exercise their rights pursuant to
Section 11.1 and the completion of the Change of Control Purchase Notice and also shall state: 



    (1) that
it is the Change of Control Purchase Notice pursuant to Sections 11.2 and 11.3 of the Indenture and must be completed by the Holder and delivered to the Paying
Agent (and any beneficial holder of securities), together with the delivery of the holder's Securities for which the holder will exercise its
purchase rights pursuant to Section 11.1, for such holder to receive the Change of Control Purchase Price; 



    (2) the
name and address of the Paying Agent to, and the date by, which the completed Change of Control Purchase Notice and Securities must be delivered in order for
the holder to receive the applicable purchase price; 


    (3) the
portion of the principal amount of the Security which the Holder will deliver to be purchased, which portion must be in Principal Amounts at Maturity of $1,000
or an integral multiple thereof; 


    (4) any
other procedures then applicable that the Holder must follow to exercise rights under Article 11 and a brief description of those rights; 


    (5) the
Change of Control Purchase Date and the Change of Control Purchase Price; 


    (6) the
procedures with which such Holder must comply to exercise its right to have its Securities purchased pursuant to Section 11.1, including the date by
which the completed Change of Control Purchase Notice pursuant to Section 11.3 and the Securities the Holder elects to have purchased pursuant to Section 11.1 must be delivered to Paying
Agent in order to have such Securities purchased by the Company pursuant to Section 11.1, the name and address of the Paying Agent and that the Securities as to which a Change of Control
Purchase Notice has been given may be converted, if they are otherwise convertible pursuant to Article 12, only if the completed and delivered Change of Control Purchase Notice has been
withdrawn in accordance with the terms of the Indenture, the Holder's conversion rights pursuant to Article 12, the Conversion Rate then in effect and any adjustments thereto; 



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    (7) the Holder's right to withdraw a completed and delivered Change of Control Purchase Notice, the procedures for withdrawing a Change of Control Purchase Notice,
pursuant to clause (c) below and that Securities as to which a completed and delivered Change of Control Purchase Notice may be converted, if they are convertible only in accordance with
Article 12, if the applicable completed and delivered Change of Control Purchase Notice has been withdrawn; 


    (8) that,
unless the Company defaults in making payment on Securities for which a Change of Control Purchase Notice has been submitted, Interest on such Securities will
cease to accrue on the Change of Control Purchase Date; and 


    (9) the
CUSIP number of the Securities. 




    (c) Notwithstanding
anything herein to the contrary, any Holder which has delivered a completed Change of Control Purchase Notice to the Paying Agent shall have the
right to withdraw such Change of Control Purchase Notice by delivery of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the Change of Control Purchase
Notice at any time prior to the close of business on the day immediately preceding the Change of Control Purchase Date specifying: 



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


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



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




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


    Section 11.4.  Exercise of Purchase Rights.  


    To
exercise a purchase right pursuant to Section 11.1, a Holder must deliver to the Trustee at its offices on or prior to the close of business on the Business Day prior to the
Change of Control Purchase Date the following: 



    (a) a
completed Change of Control Purchase Notice, the form of which is contained in Exhibit D hereto; and 


    (b) the
Securities or cause such Securities to be delivered through the facilities of the Depositary, as applicable, with respect to which the purchase right is being
exercised, 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. 




    Section 11.5.  Deposit and Payment of the Purchase Price.  



    (a) If
a Holder has exercised its rights pursuant to Section 11.1 and has satisfied the conditions for the exercise of such rights in accordance with
Section 11.4, then the Company shall, prior to 10:00 a.m. (New York City time) on the Business Day following the Change of Control Purchase Date deposit with the Trustee or with the
Paying 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 in Section 2.4) an amount of
money in immediately available funds, Common Stock or a combination thereof, as applicable, if deposited on such Business Day sufficient to pay the aggregate Change of Control Purchase Price of all
the Securities or portions thereof which are to be purchased on such purchase date, and the Trustee or Paying Agent, as applicable shall pay the Holder the Change of Control Purchase Price, as
applicable, multiplied by the principal amount of Securities for which such rights were exercised on the Change of Control Purchase Date. 


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    (b) There
shall be no purchase of any Securities pursuant to Section 11.1 if there has occurred (prior to, on or after, as applicable, the giving, by the Holders
of such Securities, of the required Change of Control Purchase Notice) and is continuing an Event of Default (other than a default in the payment of the Change of Control Purchase Price with respect
to such Securities). The Paying Agent will promptly return to the respective Holders thereof any Securities (x) with respect to which a Change of Control Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Change of Control Purchase Price with respect to such
Securities) in which case, upon such return, the Change of Control Purchase Notice with respect thereto shall be deemed to have been withdrawn. 


    (c) If
any Security delivered for purchase pursuant to Section 11.1 shall not be so paid on the Change of Control Purchase Date, the principal amount of such
Security shall, until it is paid, bear Interest from the purchase date to but not including the date of actual payment hereunder at the applicable Interest Rate, and each such Security shall remain
convertible into shares of Common Stock pursuant to Article 12 until such Security shall have been paid. 


    Section 11.6.  Effect of Delivery of Change of Control Purchase Notice and Purchase.  


    (a) Upon
receipt by the Paying Agent of a Change of Control Purchase Notice, the Holder of the Security in respect of which such Change of Control Purchase Notice was
delivered shall (unless such Change of Control Purchase Notice is withdrawn pursuant to Section 11.3(c)) thereafter be entitled to receive solely the Change of Control Purchase Price with
respect to such Security, and, if applicable, any accrued and unpaid Interest pursuant to Section 2.1(e). Securities in respect of which a Change of Control Purchase Notice has been delivered
by the Holder thereof may not be converted pursuant to Article 12 on or after the date of the delivery of such Change of Control Purchase Notice unless such Change of Control Purchase Notice
which has been completed and delivered to the Paying Agent has first been validly withdrawn pursuant to Section 11.3(c). 


    (b) All
Securities delivered for purchase shall be canceled by the Trustee or Paying Agent, as applicable. 


    Section 11.7.  Physical Securities Purchased in Part.  



    Any
Physical Security which is to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory 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 principal amount equal to, and in exchange for, the portion of the principal amount of the Security
so surrendered which is not purchased. 


    Section 11.8.  Covenant to Comply With Securities Laws Upon Purchase of Securities.  


    When
complying with the provisions of this Article 11 (provided that such offer or purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4
(which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), the Company shall (a) comply with Rule 13e- 4 and
Rule 14e-1 under the Exchange Act, (b) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act and (c) otherwise comply with
all federal and state securities laws so as to permit the rights and obligations under this Article 11 to be exercised in the time and in the manner specified in this Article 11. 


    Section 11.9.  Repayment to the Company.  The Trustee and the Paying Agent shall return to the Company
any cash that remains unclaimed, together with interest or dividends, if any, thereon (subject to the provisions of Section 5.4), held by them for the payment of the Change of Control Purchase 


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Price; provided, however, that to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 11.5 exceeds the
aggregate Change of Control Purchase Price of the Securities or portions thereof which the Company is obligated to purchase on the purchase date then, unless otherwise agreed in writing with the
Company, promptly after the Business Day following such purchase date, the Trustee or Paying Agent, as applicable, shall return any such excess to the Company together with interest or dividends, if
any, thereon, subject to the provisions of Section 5.4. 


 
 

ARTICLE 12    
  


CONVERSION OF SECURITIES  


    Section 12.1.  Conversion Right; Expiration of Conversion Right; Conversion Price.  


    (a) Subject
to and upon compliance with the provisions of this Article, at the option of the Holder at any time and from time to time, any Security or any portion of
the principal amount thereof which is an integral multiple of $1,000 may be converted at the principal amount thereof, or of such portion thereof, into duly authorized, fully paid and nonassessable
shares of Common Stock, at the Conversion Price, determined as hereinafter provided, in effect at the time of conversion. 


    (b) The
conversion right set forth in clause (a) above shall expire at the close of business on the Stated Maturity. In case a Security or portion thereof is
called for redemption pursuant to Article 10, such conversion right in respect of the Security or the portion so called, shall expire at the close of business on the second Business Day
preceding the Redemption Date, unless the Company defaults in making the payment due upon redemption. In the case of a Change of Control for which the Holder exercises its Purchase Right pursuant to
Article 11 with respect to a Security or portion thereof, such conversion right in respect of the Security or portion thereof shall expire at the close of business on the Business Day
immediately preceding the Change of Control Purchase Date. 


    (c) The
price at which shares of Common Stock shall be delivered upon conversion (the "Conversion Price") shall be
initially equal to $38.40 per share of Common Stock, subject to adjustment, in certain instances, as provided in Section 12.4. 


    (d) No
payment or adjustment will be made for dividends on, or other distributions with respect to, any Common Stock except as provided in this Article 12. 



    (e) A
Security in respect of which a holder has delivered a Change of Control Purchase Notice exercising the option of such Holder to require the Company to purchase
such Security may be converted only if such notice of exercise is withdrawn in accordance with Section 11.3(c). 


    Section 12.2.  Exercise of Conversion Right  


    (a) To
exercise the conversion right with respect to a Physical Security, a Holder must (1) deliver a completed conversion notice, the form of which is provided
in Exhibit C, to the Depositary stating that the Holder elects to convert such Physical Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to
be converted, (2) deliver duly signed completed conversion notice and the Physical Security duly endorsed or assigned to the Company or in blank, at the office of any Conversion Agent,
(3) pay all Interest to which the Holder is not entitled, if any, pursuant to Section 2.1(e) and (4) pay any transfer taxes or other applicable taxes or duties, if required. 


    (b) To
convert interests in a Global Security, a Holder must deliver to DTC the appropriate instruction form for conversion pursuant to DTC's conversion program or must
deliver instructions in accordance with Euroclear's or Clearstream's normal operating procedures after application has been made to make the underlying Common Stock eligible for trading on Euroclear
or Clearstream, as applicable. 


    (c) To
the extent provided in Section 2.1(e), Securities surrendered for conversion during the period from the close of business on any Regular Record Date to
the opening of business on the next 


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succeeding Interest Payment Date (except in the case of any Security whose Stated Maturity is prior to such Interest Payment Date) shall be accompanied by payment by such Holder in immediately
available funds to the Company of an amount equal to the Interest to be received on such Interest Payment Date on principal amount of Securities being surrendered for conversion. To the extent
provided in Section 2.1, Securities which have been called for redemption by the Company in a notice of redemption pursuant to Section 10.4, and are converted prior to redemption, shall
not require such concurrent payment to the Company surrender for conversion, and if converted during time period set forth in the preceding sentence, the Holders of such converted Securities shall be
entitled to receive (and retain) any accrued interest on the principal amount of such surrendered Securities, if any. 


    (d) Securities
shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance
with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the shares of Common Stock issuable
upon conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock at such time. 


    (e) In
the case of any Security which is converted in part only, or a Holder converts less than the principal amount it owns at such time, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in principal amount
equal to the unconverted portion of the principal amount of such Securities. 


    (f)  As
promptly as practicable on or after the Conversion Date, the Company shall cause to be issued and delivered to such Conversion Agent a certificate or
certificates for the number of full shares of Common Stock issuable upon conversion of such Securities, together with payment in lieu of any fraction of a share as provided in Section 12.3
hereof. The Company hereby initially appoints The Bank of New York as the Conversion Agent. 


    (g) Securities
shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance
with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock at such time. 


    (h) A
Security in respect of which a Holder has delivered a Change of Control Purchase Notice exercising the option of such Holder to require the Company to purchase
such Security may be converted only if such notice of exercise is withdrawn in accordance with Section 11.3. 


    Section 12.3.  Fractions of Shares.  



    No
fractional shares of Common Stock shall be issued upon conversion of any Security or Securities. If more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares of Common Stock which shall be issued upon conversion thereof shall be computed on the basis of the principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional shares of Common Stock which would otherwise be issued upon conversion of any Security or Securities (or specified portions thereof), the Company
shall pay a cash adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Trading Price of the shares of
Common Stock as of the Trading Day preceding the Conversion Date. 


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    Section 12.4.  Adjustment of Conversion Price.  


    The
Conversion Price shall be subject to adjustment, calculated in good faith by the Company, from time to time as follows: 



    (a) In
case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, the Conversion
Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction: 



    (1) the
numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date fixed for such
determination; and 


    (2) the
denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. 




    Such
reduction shall become effective immediately after the opening of business on the day following the Conversion Record Date. If any dividend or distribution of the type described
in this Section 12.4(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution
had not been declared. 


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


    (c) In
case the Company shall issue rights or warrants (other than any rights or warrants issued pursuant to a rights plan (commonly referred to as a "poison pill"
plan) referred to in Section 12.4(d)) to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into
shares of Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price on the Conversion Record Date fixed for the determination of stockholders
entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of
business on the date after such Conversion Record Date by a fraction: 



    (1) the
numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Conversion Record Date, plus the number of shares
which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at
such Current Market Price; and 


    (2) the
denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Conversion Record Date, plus the total number of
additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). 




    Such
adjustment shall become effective immediately after the opening of business on the day following the Conversion Record Date fixed for determination of stockholders entitled to
receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or
termination of such 


D–46





 


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


    (d) (i) In
case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of Capital Stock of the Company
(other than any dividends or distributions to which Section 12.4(a) applies) or evidences of its indebtedness, cash or other assets, including securities, but excluding (1) any rights or
warrants referred to in Section 12.4(c), (2) dividends or distributions of stock, securities or other property or assets (including cash) in connection with a reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 applies and (3) dividends and distributions paid exclusively in cash (such Capital
Stock, evidence of its indebtedness, cash, other assets or securities being distributed hereinafter in this Section 12.4(d) called the "distributed
assets"), then, in each such case, subject to clause (ii) of this Section 12.4(d), the Conversion Price shall be reduced so that the same shall be equal to the
price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the Conversion Record Date with respect to such distribution by a fraction: 



    (1) the
numerator of which shall be the Current Market Price on such date, less the Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution) on such date of the portion of the distributed assets so distributed applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding on the Conversion Record Date); and 


    (2) the
denominator of which shall be such Current Market Price. 




    Such
reduction shall become effective immediately prior to the opening of business on the day following the Conversion Record Date. However, in the event that the then Fair Market
Value (as so determined) of the portion of the distributed assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Conversion Record
Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of
distributed assets such Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to such Conversion Record Date. In the event that such dividend or
distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. 


    (ii) If
the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 12.4(d) by reference to the actual or when
issued trading market for any distributed assets comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the
"Reference Period") used in computing the Current Market Price to the extent possible, unless the Board of Directors in a Board Resolution determines in
good faith that determining the Fair Market Value during the Reference Period would not be in the best interest of the Holders. 



    (iii) 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 


D–47





 


under certain circumstances), which rights or warrants, until the occurrence of a specified event or events specified in such rights or warrants or related instruments or agreements governing the same
(a "Trigger Event"): 



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


    (2) are
not exercisable; and 


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




shall
be deemed not to have been distributed for purposes of this Section 12.4(d) (and no adjustment to the Conversion Price under this Section 12.4(d) will be required) until the
occurrence of the earliest Trigger Event; provided that (1) if such right or warrant is subject to subsequent events, upon the occurrence of
which such right or warrant shall become exercisable to purchase different distributed assets, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and the Conversion Record Date
with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof); and (2) 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 resulted in an adjustment to the Conversion Price under this Section 12.4(d): 



    (1) in
the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or purchase to give effect to such distribution or Trigger Event, as applicable, as though it were a cash distribution, equal to the per share redemption or
purchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the
date of such redemption or purchase; and 


    (2) in
the case of such rights or warrants which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and
warrants had never been issued. 




    For
purposes of this Section 12.4(d) and Sections 12.4(a), 12.4(b) and 12.4(c), any dividend or distribution to which this Section 12.4(d) is applicable that also
includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12.4(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to
which Section 12.4(c) applies (or any combination thereof), shall be deemed instead to be: 


    (A) a
dividend or distribution of the evidences of indebtedness, assets, shares of Capital Stock, rights or warrants, other than such shares of Common Stock, such
subdivision or combination or such rights or warrants to which Sections 12.4(a), 12.4(b) and 12.4(c) apply, respectively (and any Conversion Price reduction required by this Section 12.4(d)
with respect to such dividend or distribution shall then be made), immediately followed by 


    (B) a
dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction
required by Sections 12.4(a), 12.4(b) and 12.4(c) with respect to such dividend or distribution shall then be made), except: 




	(I)
	the
Conversion Record Date of such dividend or distribution shall be substituted as (x) 'the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution", "Conversion Record Date fixed for such determinations" and "Conversion Record Date" within the meaning of Section 12.4(a), (y) 'the day upon which such
subdivision becomes effective" and "the day upon which such combination 




D–48





 



becomes
effective" within the meaning of Section 12.4(b), and (z) as "the date fixed for the determination of stockholders entitled to receive such rights or warrants", "the Conversion
Record
Date fixed for the determination of the stockholders entitled to receive such rights or warrants" and such "Conversion Record Date" within the meaning of Section 12.4(c); and 



	(II)
	any
shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the
meaning of Section 12.4(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such
dividend or distribution. 





    (e) In
case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a
reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12.11 applies or as part of a distribution referred to in
Section 12.4(d)), in an aggregate amount that, combined together with: 



    (1) the
aggregate amount of any other such distributions to all holders of Common Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.4(e) has been made; and 


    (2) the
aggregate of any cash plus the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board
Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding
the date of such distribution, and in respect of which no adjustment pursuant to Section 12.4(f) has been made; 




exceeds
10% of the product of the Current Market Price on the Conversion Record Date with respect to such distribution multiplied by the number of shares of Common Stock outstanding on such date, then
and in each such case, immediately after the close of business on such date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the close of business on such Conversion Record Date by a fraction: 



    (1) the
numerator of which shall be equal to the Current Market Price on the Conversion Record Date less an amount equal to the quotient of (x) the excess of
such combined amount over such 10% and (y) the number of shares of Common Stock outstanding on the Conversion Record Date, and 


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




    However,
in the event that the then Fair Market Value (as so determined) of the portion of the securities so distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price on the Conversion Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of cash such Holder would have received had such Holder
converted such Security (or portion thereof) immediately prior to such Conversion Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. 


    (f)  In
case a tender offer made by the Company or any of its subsidiaries for all or any portion of the Common Stock shall expire and such tender offer (as amended
upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares) of an aggregate
consideration having a Fair Market 


D–49





 


Value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board Resolution) that combined together with: 



    (1) the
aggregate of the cash plus the Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a Board
Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company or any of its subsidiaries for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this Section 12.4(f) has been made; and 


    (2) the
aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to Section 12.4(e) has been made, 




exceeds
10% of the product of the Current Market Price as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender
offer (as it may be amended) multiplied by the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to close of business on the date of the Expiration Time by a fraction: 



    (1) the
numerator of which shall be the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time; and 


    (2) the
denominator shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased
Shares) on the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time 




    Such
reduction (if any) shall become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to
purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in effect if such tender offer had not been made. If the application of this Section 12.4(f) to any tender offer
would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 12.4(f). 


    (g) For
purposes of this Section 12.4, the following terms shall have the meanings indicated: 



    (1) 'Current Market Price" of shall mean the average of the daily Trading Prices per share of Common Stock (or such
other security as specified herein) for the ten consecutive Trading Days immediately prior to the date in question; provided, however, that if: 



    (i)  the
"ex" date (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f) occurs during such ten consecutive Trading Days, the Trading Price for each Trading Day prior to the "ex"
date for such other event shall be adjusted by multiplying such Trading Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event; 




D–50





 



    (ii) the "ex" date for any event (other than the issuance or distribution requiring such computation) that requires an adjustment to the Conversion Price pursuant to
Section 12.4(a), (b), (c), (d), (e) or (f) occurs on or after the "ex" date for the issuance or distribution requiring such computation and prior to the day in question, the
Trading Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Trading Price by the reciprocal of the fraction by which the Conversion Price
is so required to be adjusted as a result of such other event; and 


    (iii) the
"ex" date for the issuance or distribution requiring such computation is prior to the day in question, after taking into account any adjustment required
pursuant to clause (i) or (ii) of this proviso, the Trading Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the Fair
Market Value (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 12.4(d) or (f), whose determination shall be conclusive
and set forth in a Board Resolution) of the evidences of indebtedness, shares of Capital Stock or assets being distributed applicable to one share of Common Stock as of the close of business on the
day before such "ex" date. 





    For
purposes of any computation under Section 12.4(f), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Trading Prices
per share of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the "ex" date for any event (other than the
tender offer requiring such computation) that requires an adjustment to the Conversion Price pursuant to Section 12.4(a), (b), (c), (d), (e) or (f) occurs on or after the
Expiration Time for the tender or exchange offer requiring such computation and prior to the day in question, the Trading Price for each Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Trading Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event. For purposes of this
paragraph, the term "ex" date, when used: 



    (I) with
respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market
from which the Trading Price was obtained without the right to receive such issuance or distribution; 


    (II) with
respect to any subdivision or combination of shares of Common Stock, means the first date on which the shares of Common Stock trade regular way on such
exchange or in such market after the time at which such subdivision or combination becomes effective; and 


    (III) with
respect to any tender or exchange offer, means the first date on which the Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer. 




    Notwithstanding
the foregoing, whenever successive adjustments to the Conversion Price are called for pursuant to this Section 12.4, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to effectuate the intent of this Section 12.4 and to avoid unjust or inequitable results as determined in good faith by the Board of
Directors. 



    (1) "Fair Market Value" shall mean, if there is a current market for the asset, debt or transaction in question, the
amount that a willing buyer would pay a willing seller in an arm's length transaction or, in the absence of a current market for such asset, debt or transaction, the amount determined in good faith by
the Board of Directors that represents its determination of the fair market value of the asset. 


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



D–51







  




    The
Company may make such reductions in the Conversion Price, in addition to those required by Sections 12.4(a), (b), (c), (d), (e) or (f), as the Board of Directors considers
to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or
from any even treated as such for income tax purposes or otherwise. 


    (h) No
adjustment need be made for (i) a transaction referred to in Sections 12.4 or 12.11 if Holders participate in the transaction without conversion on a
basis and with notice that the Board of Directors determines to be fair and appropriate in light of the basis and notice on which holders of shares of Common Stock participate in the transaction;
(ii) the issuance and distribution of rights to purchase shares of Common Stock pursuant to (A) a Company plan for reinvestment of dividends or interest, (B) a change in the par
value or no par value of the shares of Common Stock or (C) to the extent the Securities become convertible pursuant to this Article 12 in whole or in part into cash, with respect to such
cash after such cash is distributed to the Holders in satisfaction of such conversion right. 


    (i)  To
the extent permitted by applicable law, the Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at
least 20 days and the reduction is irrevocable during the period and the Board of Directors determines in good faith that such reduction would be in the best interests of the Holders, which
determination shall be conclusive and set forth in a Board Resolution. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Company shall mail to the Trustee and the
Conversion Agent and each Holder at the address of such Holder as it appears in the Register a notice of the reduction at least 15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price and the period during which it will be in effect. 


    (j)  No
adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price;  provided, however, that any adjustments which by reason of
this Section 12.4(j) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article 12 shall be made by the Company in good faith and shall be made to the nearest cent or to the nearest one
hundredth of a share, as applicable. No adjustment need be made for a change in the par value or no par value of the Common Stock. 


    (k) No
adjustment in Conversion Price shall be required if the Fair Market Value of any assets, debt securities or rights, warrants or options to purchase the
securities of the Company, including but not limited to Common Stock, in each case applicable to each share of Common Stock are distributed to the Company's stockholders and such Fair Market Value
either equals or exceeds the Current Market Price or such Current Market Price exceeds the such Fair Market Price Value by an amount not exceeding $1.00;  provided, however, that any adjustments which by reason of this Section 12.4(k) are not
required to be made shall be distributed upon conversion of any Security in an amount of assets, securities or rights, warrants or options comprising the distribution that a Holder would have received
if such Holder had converted such Security immediately prior to the Conversion Record Date. 


    (l)  In
any case in which this Section 12.4 provides that an adjustment shall become effective immediately after a Conversion Record Date for an event, the
Company may defer until the occurrence of such event (i) issuing to the Holder of any security converted after such Conversion Record Date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 12.3. 


    (m) For
purposes of this Section 12.4, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company
but shall include shares 


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issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company. 


    (n) If
the distribution date for the rights provided in the Company's rights agreement, if any, occurs prior to the date a Security is converted, the Holder of the
Security who converts such Security after the distribution date is not entitled to receive the rights that would otherwise be attached (but for the date of conversion) to the shares of Common Stock
received upon such conversion; provided, however, that an adjustment shall be made to the Conversion Price pursuant to clause 12.4(b) as if the
rights were being distributed to the common stockholders of the Company immediately prior to such conversion. If such an adjustment is made and the rights are later redeemed, invalidated or
terminated, then a corresponding reversing adjustment shall be made to the Conversion Price, on an equitable basis, to take account of such event. 


    (o) In
case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of Capital Stock of a subsidiary of the
Company, then the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on
the Conversion Record Date with respect to such distribution by a fraction: 



    (1) the
numerator of which shall be the Current Market Price of the shares of Capital Stock of such subsidiary (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution), measured from the date of such distribution; and 


    (2) the
denominator of which shall be the Current Market Price of the Company's common stock, measured from the date of such distribution. 




    Section 12.5.  Notice of Adjustments of Conversion Price.  



    Whenever
the Conversion Price is adjusted as herein provided (other than in the case of an adjustment pursuant to the second paragraph of Section 12.4(i) for which the
notice required by such paragraph has been provided), the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers' Certificate setting forth the
adjusted Conversion Price and showing in reasonable detail the facts upon which such adjustment is based. Promptly after delivery of such Officers' Certificate, the Company shall prepare a notice
stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective, and shall mail such notice to each Holder
at the address of such Holder pursuant to Section 14.2 within 20 days prior to the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment. 


    Section 12.6.  Notice Prior to Certain Actions.  


    In
case at any time after the date hereof: 



    (1) the
Company shall declare a dividend (or any other distribution) on its Common Stock payable otherwise than in cash out of its capital surplus or its consolidated
retained earnings; 


    (2) the
Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any shares of Capital Stock of any
class (or of securities convertible into shares of Capital Stock of any class) or of any other rights; 


    (3) there
shall occur any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, a change in par
value, a change from par value to no par value or a change from no par value to par value), or any merger, consolidation, statutory share exchange or combination to which the Company is a party and
for 



D–53





 


which approval of any shareholders of the Company is required, or the sale, transfer or conveyance of all or substantially all of the assets of the Company; or 


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




the
Company shall cause to be filed at each office or agency maintained for the purpose of conversion of securities pursuant to Section 9.2, and shall cause to be provided to the Trustee and
all Holders in accordance with Section 14.2, at least 20 days (or 10 days in any case specified in clause (1) or (2) above) prior to the applicable record or
effective date hereinafter specified, a notice stating: 



    (A) the
date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as of
which the holders of shares of Common Stock of record to be entitled to such dividend, distribution, rights or warrants are to be determined; or 


    (B) the
date on which such reclassification, merger, consolidation, statutory share exchange, combination, sale, transfer, conveyance, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is expected that holders of shares of Common Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification, merger, consolidation, statutory share exchange, sale, transfer, dissolution, liquidation or winding up. 




    Neither
the failure to give such notice nor any defect therein shall affect the legality or validity of the proceedings or actions described in clauses (1) through
(4) of this Section 12.6. 


    Section 12.7.  Company to Reserve Common Stock.  The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of the Securities, the full number of shares of fully paid and
nonassessable Common Stock then issuable upon the conversion of all Outstanding Securities. 


    Section 12.8.  Common Stock to be Fully Paid and Nonassessable.  


    The
Company covenants that all Common Stock which may be issued upon conversion of Securities will upon issue be fully paid and nonassessable and, except as provided in
Section 12.9, the Company will pay all taxes, liens and charges with respect to the issue thereof. 


    Section 12.9.  Taxes on Conversions.  


    Except
as provided in the next sentence, the Company will pay any and all taxes (other than taxes on income) and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant to Article 12. A Holder delivering a Security for conversion shall be liable for and will be required to pay any tax or duty which
may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless the Person requesting such issue has paid to the Company the amount of any such tax or duty, or has established to the satisfaction of the Company that such
tax or duty has been paid. 


    Section 12.10.  Cancellation of Converted Securities.  


    All
Securities delivered for conversion shall be delivered to the Trustee to be canceled by or at the direction of the Trustee. 


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    Section 12.11.  Effect of Reclassification, Consolidation, Merger or Sale.  


    If
any of following events occur: 



    (1) any
reclassification or change of the outstanding shares of Common Stock (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), as a result of which holders of Common Stock shall be entitled to receive Capital Stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock; 


    (2) any
merger, consolidation, statutory share exchange or combination of the Company with another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock; or 


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




then
(A) the Company or the successor or purchasing corporation, as applicable, shall execute with the Trustee a supplemental indenture (which shall comply with this Indenture and the TIA as in
force at the date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that such security shall be convertible into the kind and amount
of shares of capital stock and other securities or property or assets (including cash) which such Holder would have been entitled to receive upon such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance had such Securities been converted into Common Stock immediately prior to such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance assuming such holder of Common Stock did not exercise its rights of election, if any, as to the kind or amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or
other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance is not the same for each shares of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of this Section 12.11
the kind and amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance for each Non-Electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the Non-Electing Shares). Such supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 12. If, in the case of any such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a corporation
other than the successor or purchasing corporation, as applicable, in such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders as the Board of Directors shall reasonably
consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the Purchase rights set forth in Article 11. 



    The
Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the Register, within
20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. 


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    The above provisions of this Section shall apply to successive or series of related reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales and
conveyances. 


    If
this Section 12.11 applies to any event or occurrence, Section 12.4 shall not apply. 


    Section 12.12.  Responsibility of Trustee for Conversion Provisions.  


    The
Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the Conversion Price, or with respect to the nature or intent of any such adjustments when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall
be accountable with respect to the validity or value (of the kind or amount) of any Common Stock or of any other securities or property, which may at any time be issued or delivered upon the
conversion of any Security; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions of Section 5.1, nor any Conversion Agent shall be
responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any shares of stock or share certificates or other securities or property upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the provisions of Section 5.1, and any Conversion Agent shall not be responsible or liable for any failure of the Company to
comply with any of the covenants of the Company contained in this Article. 


 
 

ARTICLE 13    
  


SUBORDINATION  


    Section 13.1.  Subordination to Senior Debt.  


    The
Company covenants and agrees, and each Holder of Securities, by such Holder's acceptance thereof, is deemed to covenant and agree, that the Indebtedness represented by the
Securities and the payment of the Principal of and Interest on each and all of the Securities is hereby expressly subordinated and junior, to the extent and in the manner set forth and as set forth in
this Section 13.1, in right of payment to the prior payment in full of all Senior Debt. 


    (a) In
the event of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise, the
holders of all Senior Debt shall first be entitled to receive payment of the full amount due thereon in respect of all such Senior Debt and all other amounts due or provision shall be made for such
amount in cash, or other payments satisfactory to the holders of Senior Debt, before the Holders of any of the Securities are entitled to receive any
payment or distribution of any character, whether in cash, securities or other property, on account of the Principal of or Interest on the Indebtedness evidenced by the Securities, except that the
Company may, but shall not be required to, make payments on the Securities in Permitted Junior Securities. 


    (b) In
the event of any acceleration of Maturity of the Securities because of the occurrence and confirmation of an Event of Default, unless the full amount due in
respect of all Senior Debt is paid in cash or other form of payment satisfactory to the holders of Senior Debt, no payment shall be made by the Company with respect to the Principal of or Interest on
the Securities or to acquire any of the Securities (including any redemption or cash Purchase pursuant to the exercise of the Purchase Right), except that the Company may, but shall not be required
to, make payments on the Securities in Permitted Junior Securities, and the Company shall give prompt written notice of such acceleration to such holders of Senior Debt. 


D–56





 


    (c) In the event of and during the continuance of any default in payment of the principal of or premium, if any, or interest on, rent or other payment obligation in
respect of, any Senior Debt, unless all such payments due in respect of such Senior Debt have been paid in full in cash or other payments satisfactory to the holders of Senior Debt, no payment shall
be made by the Company with respect to the Principal of or Interest on the Securities or to acquire any of the Securities (including any redemption or cash purchase pursuant to the exercise of the
Purchase Right), except that the Company may, but shall not be required to, make payments on the Securities in Permitted Junior Securities. The Company shall give prompt written notice to the Trustee
of any default under any Senior Debt or under any agreement pursuant to which Senior Debt may have been issued. 


    (d) During
the continuance of any event of default with respect to any Designated Senior Debt, as such event of default is defined under any such Designated Senior Debt
or in any agreement pursuant to which any Designated Senior Debt has been issued (other than a default in payment of the principal of or premium, if any, or interest on, rent or other payment
obligation in respect of any Designated Senior Debt), permitting the holder or holders of such Designated Senior Debt to accelerate the maturity thereof (or, in the case of any lease, permitting the
landlord either to terminate the lease or to require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder), no payment shall be made by the Company,
directly or indirectly, with respect to Principal of or Interest on the Securities, other than payments in Permitted Junior Securities, for 179 days following notice in writing (a
"Payment Blockage Notice") to the Company, from any holder or holders of such Designated Senior Debt or their representative or representatives or the
trustee or trustees under any indenture or under which any instrument evidencing any such Designated Senior Debt may have been issued, that such an event of default has occurred and is continuing,
unless such event of default has been cured or waived or such Designated Senior Debt has been paid in full; provided, however, if the maturity of such
Designated Senior Debt is accelerated (or, in the case of any lease, permitting the landlord either to terminate the lease or to require us to make an irrevocable offer to terminate the lease
following an event of default thereunder), no payment may be made on the Securities, other than payments in Permitted Junior Securities, until such Designated Senior Debt has been paid in full in cash
or other payment satisfactory to the holders of such Designated Senior Debt or such acceleration has been cured or waived. 



    For
purposes of this Section 13.1(d), such Payment Blockage Notice shall be deemed to include notice of all other events of default under such indenture or instrument which are
continuing at the time of the event of default specified in such Payment Blockage Notice. The provisions of this Section 13.1(d) shall apply only to one such Payment Blockage Notice given in
any period of 365 days with respect to any issue of Designated Senior Debt, and only one such Payment Blockage Notice may be delivered in any such period, and no such continuing event of
default that existed or was continuing on the date of delivery of any Payment Blockage Notice shall be, or shall be made, the basis for a subsequent Payment Blockage Notice. 



    (e) In
the event that, notwithstanding the foregoing provisions of Sections 13.1(a), 13.1(b), 13.1(c) and 13.1(d), any payment on account of Principal or Interest on
the Securities shall be made by or on behalf of the Company and received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such
payment shall be segregated and held in trust): 



    (1) after
the occurrence of an event specified in Section 13.1(a) or 13.1(b), then, unless all Senior Debt is paid in full in cash, or provision shall be made
therefore; 



    (2) after
the happening of an event of default of the type specified in Section 13.1(c) above, then, unless the amount of such Senior Debt then due shall have
been paid in full, or provision made therefor or such event of default shall have been cured or waived; or 



D–57





 


    (3) after the happening of an event of default of the type specified in Section 13.1(d) above and delivery of a Payment Blockage Notice, then, unless such event
of default shall have been cured or waived or the 179-day period specified in Section 13.1(d) shall have expired, 




such
payment (subject, in each case, to the provisions of Section 13.7 hereof) shall be held in trust for the benefit of, and shall be immediately paid over to, the holders of Designated Senior
Debt (unless an event described in Section 13.1(a), (b) or (c) has occurred, in which case the payment shall be held in trust for the benefit of, and shall be immediately paid
over to all holders of Senior Debt) or their representative or representatives or the trustee or trustees under any indenture under which any instruments evidencing any of the Designated Senior Debt
or Senior Debt, as the case may be, may have been issued, as their interests may appear. 


    Section 13.2.  Subrogation.  


    Subject
to the payment in full of all Senior Debt to which the Indebtedness evidenced by the Securities is in the circumstances subordinated as provided in Section 13.1 hereof,
the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to
such Senior Debt until all amounts owing on the Securities shall be paid in full, and, as between the Company, its creditors other than holders of such Senior Debt, and the Holders of the Securities,
no such payment or distribution made to the holders of Senior Debt by virtue of this Article which otherwise would have been made to the holders of the Securities shall be deemed to be a payment by
the Company on account of such Senior Debt, provided that the provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the holders of Senior Debt, on the other hand. 


    Section 13.3.  Obligation of the Company is Absolute and Unconditional.  


    Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of
Senior Debt, and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the Principal of and Interest on the
Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of Senior Debt, nor shall anything contained herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. 


    Section 13.4.  Maturity of or Default on Senior Debt.  


    Upon
the maturity of any Senior Debt by lapse of time, acceleration or otherwise, all principal of or premium, if any, or interest on, or other payment obligations in respect of all
such matured Senior Debt shall first be paid in full, or such payment shall have been duly provided for, before any payment on account of Principal or Interest is made upon the Securities, except that
the Company may make payments on the Securities in Permitted Junior Securities. 


    Section 13.5.  Payments on Securities Permitted.  



    Except
as expressly provided in this Article, nothing contained in this Article shall affect the obligation of the Company to make, or prevent the Company from making, payments of the
Principal of or Interest on the Securities in accordance with the provisions hereof and thereof, or shall prevent the Trustee or any Paying Agent from applying any moneys deposited with it hereunder
to the payment of the Principal of or Interest on the Securities. 


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    Section 13.6.  Effectuation of Subordination by Trustee.  


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


    Upon
any payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other Person making any payment or distribution, delivered to the Trustee or to the Holders
of the Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, and as to other facts pertinent to the right of such Persons under this Article,
and if such evidence is not furnished, the Trustee may defer any payment to such Persons pending judicial determination as to the right of such Persons to receive such payment. 


    Section 13.7.  Knowledge of Trustee.  



    Notwithstanding
the provision of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Debt, of any
default in payment of principal of, premium, if any, or interest on, or other payment obligation in respect of any Senior Debt, or of any facts which would prohibit the making of any payment of moneys
to or by the Trustee, or the taking of any other action by the Trustee, unless a Responsible Officer of the Trustee having responsibility for the administration of the trust established by this
Indenture shall have received written notice thereof from the Company, any Holder of Securities, any Paying or Conversion Agent of the Company or the holder or representative of any class of Senior
Debt, and, prior to the receipt of any such written notice, the Trustee shall be entitled in all respects to assume that no such default or facts exist; provided,
however, that unless on the third Business Day prior to the date upon which by the terms hereof any such moneys may become payable for any purpose the Trustee shall have
received the notice provided for in this Section 13.7, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys
and apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such date. 


    Section 13.8.  Trustee's Relation to Senior Debt.  



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


    Nothing
contained in this Article shall apply to claims of or payments to the Trustee under or pursuant to Section 5.8 hereof. 


    With
respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and the Trustee shall not be liable to any holder of Senior Debt if it shall pay over or deliver to Holders, the Company or any other Person moneys or assets to which any
holder of Senior Debt shall be entitled by virtue of this Article or otherwise. 


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    Section 13.9.  Rights of Holders of Senior Debt Not Impaired.  


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


    Section 13.10.  Modification of Terms of Senior Debt.  


    Any
renewal or extension of the time of payment of any Senior Debt or the exercise by the holders of Senior Debt of any of their rights under any instrument creating or evidencing
Senior Debt, including without limitation the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Securities or the Trustee. 



    No
compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in
respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Debt is outstanding or of such Senior Debt, whether or not such release is in
accordance with the provisions or any applicable document, shall in any way alter or affect any of the provisions of this Article or of the Securities relating to the subordination thereof. 


    Section 13.11.  Certain Conversions Not Deemed Payment.  



    (a) For
the purposes of this Article 13 only: 



    (1) the
issuance and delivery of junior securities upon conversion of Securities in accordance with Article 12 hereof shall not be deemed to constitute a payment
or distribution on account of the Principal or Interest on Securities or on account of the purchase or other acquisition of Securities, and 


    (2) the
payment, issuance or delivery of cash (except in satisfaction of fractional shares pursuant to Section 12.3 hereof), property or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the Principal of or Interest on such Security. 




    (b) For
the purposes of this Section 13.11, the term "junior securities" means: 



    (1) shares
of any Common Stock of the Company; or 


    (2) other
securities of the Company that are subordinated in right of payment to all Senior Debt that may be outstanding at the time of issuance or delivery of such
securities to substantially the same extent as, or to a greater extent that, the Securities are so subordinated as provided in this Article. 




    (c) Nothing
contained in this Article 13 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors
(other than holders of Senior Debt) and the Holders of Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with
Article 12 hereof. 


 
 

ARTICLE 14    
  


OTHER PROVISIONS OF GENERAL APPLICATION  


    Section 14.1.  Trust Indenture Act Controls.  


    This
Indenture is subject to the provisions of the TIA which are required to be part of this Indenture, and shall, to the extent applicable, be governed by such provisions. 


D–60





 

    Section 14.2.  Notices.  


    Any
notice or communication to the Company or the Trustee is duly given if in writing (which may be by facsimile with the original to follow) and delivered in person or mailed by
first-class mail to the address set forth below: 



(a)
if to the Company: 


Intermune, Inc.

1710 Gilbreth Avenue, Suite 301

Burlingame, California 94010

Attn: Stephen N. Rosenfield

Fax: (415) 266-2364 


With
a copy to: 


Cooley
Godward LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, California 94306-2155

Attn.: Suzanne Sawochka Hooper

Fax: (650) 745-1205 


(b)
if to the Trustee: 


The
Bank of New York

101 Barclay Street

Floor 21W

New York, New York 10286

Attn: Corporate Trust Administration

Fax: 212-819-5915 




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



    Any
notice or communication to a Holder shall be mailed by first class mail to his address shown on the Register kept by the Registrar. Failure to mail a notice or communication to a
Holder or any defect in such notice or communication shall not affect its sufficiency with respect to other Holders. If the company mails a notice or communication to Holders, it shall mail a copy to
the Trustee at the same time 


    If
a notice or communication is mailed or sent in the manner provided above within the time prescribed it is duly given as of the date it is mailed, whether or not the addressee
receives it, except that notice to the Trustee shall only be effective upon receipt thereof by the Trustee. 


    Section 14.3.  Communication by Holders with Other Holders.  


    Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders with respect to their rights under the Securities or this Indenture. The Company, the Trustee,
the Registrar and anyone else shall have the protection of Section 312(c) of the TIA. 


D–61





 

    Section 14.4.  Acts of Holders of Securities.  


    (a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities may
be embodied in and evidenced by: 



    (1) one
or more instruments of substantially similar tenor signed by such Holders in person or by agent or proxy duly appointed in writing; 



    (2) the
record of Holders of Securities voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article 8; or 


    (3) a
combination of such instruments and any such record. 




    Except
as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders of Securities signing such instrument or instruments and so voting at such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 5.1) conclusive in
favor of the Trustee and the Company if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 8.6. 


    (b) The
fact and date of the execution by any Person of any such instrument or writing may be provided in any manner which the Trustee reasonably deems sufficient. 



    (c) The
principal amount and serial numbers of Securities held by any Person, and the date of such Person holding the same, shall be proved by the Register. 


    (d) Any
request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holders 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, the Company in reliance thereon, whether or not notation of such action is made upon such Security. 


    Section 14.5.  Certificate and Opinion as to Conditions Precedent.  



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


D–62





 



    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. 


    Upon
any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion
of such Counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished; provided however, that, at any time that an
Opinion of Counsel is required to be delivered hereunder, the opining counsel may, with the consent of the Trustee, deliver to the Trustee the Opinion of Counsel in question addressed to a party other
than the Trustee with text to the effect that the Trustee may rely on such opinion rather than by delivering a separate Opinion of Counsel to the Trustee directly. 


    Section 14.6.  Statements Required in Certificate or Opinion.  



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



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


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


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


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




    Section 14.7.  Effect of Headings and Table of Contents.  


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



    Section 14.8.  Successors and Assigns.  


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


    Section 14.9.  Separability Clause.  


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


    Section 14.10.  Benefits of Indenture.  



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


D–63





 

    Section 14.11.  Governing Law.  



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


    Section 14.12.  Counterparts.  


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


    Section 14.13.  Legal Holidays.  



    In
any case where any Interest Payment Date, Redemption Date, Change of Control Purchase Date or Stated Maturity of any Security or the last day on which a Holder of a Security has a
right to convert such Security shall not be a Business Day at any Place of Payment or Place of Conversion, then (notwithstanding any other provision of this Indenture or of the Securities) payment of
Principal on or Interest on or conversion of the Securities, need not be made at such Place of Payment or Place of Conversion on such day, but may be made on the next succeeding Business Day at such
Place of Payment or Place of Conversion with the same force and effect as if made on the Interest Payment Date, Redemption Date, Change of Control Purchase Date or at the Stated Maturity or on such
last day for conversion; provided, however, that in the case that payment is made on such succeeding Business Day, no Interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date, Redemption Date, Change of Control Purchase Date or Stated Maturity, as applicable. 


    Section 14.14.  Recourse Against Others.  


    No
recourse for the payment of the Principal of or Interest on any Securities, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director or manager, as such, past, present or future, of the Company of any successor entity to either the Company, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance thereof and as part of the consideration for the issue thereof, expressly waived and
released. 


D–64





 


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



	 	 	INTERMUNE, INC.
	

 	
 	
By:	

/s/ STEPHEN N. ROSENFIELD   
 Name: Stephen N. Rosenfield

Title: Senior Vice President of Legal Affairs, General Counsel and Secretary
	

 	
 	

THE BANK OF NEW YORK, as trustee and not in its individual capacity.
	

 	
 	

By:	

/s/ VAN K. BROWN   
 Name: Van K. Brown

Title: Vice President




D–65






  



 
 

SECURITY    
  


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


    THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR. 


1





 
 
 

INTERMUNE, INC.    
  


53/4% Convertible Subordinated Note due 2006  


CUSIP NO. 45884 XAA1  



	No. 1	 	$149,500,000





    INTERMUNE, INC.,
a Delaware corporation (including any successor corporation under the Indenture hereinafter referred to, the
"Company"), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of One Hundred
Forty-Nine Million Five Hundred Thousand U.S. Dollars ($149,500,000) on July 15, 2006. 


    Interest
Payment Dates: July 15 and January 15, commencing January 15, 2002. 



    Regular
Record Dates: July 1 and January 1. 


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


2





 


    IN WITNESS WHEREOF, the Company has caused this Security to be duly executed manually or by facsimile by its duly authorized officers. 



	 	 	INTERMUNE, INC.
	

 	
 	

By:	

/s/ TIMOTHY P. LYNCH   
 Name: Timothy P. Lynch

Title: Chief Financial Officer, Vice President Finance and Administration
	

 	
 	

By:	

/s/ STEPHEN N. ROSENFIELD   
 Name: Stephen N. Rosenfield

Title: Senior Vice President of Legal Affairs, General Counsel and Secretary
	

 	
 	

Dated: July 5, 2001





Trustee's
Certificate of Authentication 


This
is one of the 53/4% Convertible Subordinated

Notes due 2006 described in the within-named Indenture. 



	THE BANK OF NEW YORK, as Trustee
	

By:	
 	

/s/ VAN K. BROWN   
Authorized Signatory
	

Dated: July 5, 2001




3





 
 
 

INTERMUNE, INC.    
  


53/4% Convertible Subordinated Note due 2006



 1.  Indenture; Securities  




    This Security is one of a duly authorized series of the 53/4% Convertible Subordinated Notes due 2006 (the
"Securities") of InterMune, Inc., a Delaware corporation (including any successor corporation under the Indenture hereinafter referred to, the
"Company"), issued under an Indenture, dated as of July 5, 2001 (the
"Indenture"), between the Company and The Bank of New York, as trustee (the "Trustee"). The terms of the
Security include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended ("TIA").
This Security is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not defined herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated. 



 2.  Principal and Interest.  




    The Company promises to pay Interest on the principal amount of the Securities at the Interest Rate from the date of issuance until repayment in full at Stated
Maturity, redemption or purchase. The Company will pay Interest on this Security semiannually in arrears on July 15 and January 15 of each year (each, an
"Interest Payment Date"), commencing January 15, 2002. 


    The
Securities shall bear Interest from July 5, 2001 until the Principal amount thereof is paid or made available for payment, or until such date on which the Securities are
converted, redeemed or purchased as provided herein, (i) prior to the occurrence of a Reset Transaction, at a rate of 53/4% per annum, and (ii) following the occurrence of
a Reset Transaction, at the Adjusted Interest Rate related to such Reset Transaction to, but not including, the effective date of any succeeding Reset Transaction. Interest shall be payable
semiannually in arrears on each Interest Payment Date. 


    Interest
on the Securities shall be computed (i) for any full semi-annual period for which a particular Interest Rate is applicable, on the basis of a
360-day year of twelve 30-day months and (ii) for any period for which a particular Interest Rate is applicable for less than a full semiannual period for which Interest
is calculated, on the basis of a 30-day month and, for such periods of less than a month, the actual number of days elapsed over a 30-day month. For purposes of determining the
Interest Rate, the Trustee may assume that a Reset Transaction has not occurred unless the Trustee has received an Officers' Certificate stating that a Reset Transaction has occurred and specifying
the Adjusted Interest Rate then in effect. 


    Interest
shall be due and payable on the Securities as follows: 



    (1) A
registered Holder of any Security as of the close of business on a Regular Record Date shall be entitled (except as otherwise indicated in Section 2.1(e)
of the Indenture) to receive and shall receive, as the registered Holder as of such Regular Record Date, Interest on such Security on the corresponding Interest Payment (other than any Security whose
Stated Maturity is prior to such Interest Payment Date). 


    (2) In
the event that a Security becomes subject to redemption pursuant to Article 10 of the Indenture and the Redemption Date occurs after a Regular Record
Date, the Person whose Securities become subject to redemption (and only such Person rather than the Holder as of such Regular Record Date) shall be entitled to receive and shall receive accrued and
unpaid Interest from the preceding Interest Payment Date (or such earlier date on which Interest was last paid) to 



4





 


but not including the Redemption Date on such Security, even if such person is not the Holder of such Security. 


    (3) In
the event that a Security becomes subject to purchase pursuant to Article 11 of the Indenture, a Holder of any Security who exercises a purchase right
with respect to such Security shall be entitled to receive and shall receive Interest to but not including the purchase date for such Security, which amount shall be included in the purchase price
thereof. 


    (4) In
the event that a Security is converted pursuant to Article 12 of the Indenture, the Holder who converts such Security on any date other than an Interest
Payment Date shall not be entitled to accrued and unpaid Interest from the preceding Interest Payment Date until the Conversion Date, or otherwise, on such Security, such amounts being deemed to have
been paid by receipt of shares of Common Stock in full rather than canceled, extinguished or forfeited; and, accordingly, a Holder which converts a Security after a Regular Record Date but prior to
the corresponding Interest Payment Date will receive accrued and unpaid Interest for such period on such Interest Payment Date but will be required to remit to the Company an amount equal to that
Interest at the time such Holder surrenders
the Security for conversion, provided that such Holder will not be required to remit such Interest if, prior to conversion, the Company has called such
Security for redemption and the Holder converts such Security prior to the applicable Redemption Date. 




    If
the Company fails to make a payment of Principal of or Interest on any Security when due and payable, it shall pay such Interest on such amounts (to the extent lawful), which shall
be calculated using the applicable Interest Rate (such amounts, the "Defaulted Interest"). It may elect to pay such Defaulted Interest, plus any other
Interest payable on it, to the Persons who are Holders on which the Interest is due on a subsequent special record date. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security. The Company shall fix any such special record date and payment date for such payment. At least 15 days before any such special record date,
the Company shall mail to Holders affected thereby a notice that states the special record date, the Interest Payment Date and amount to be paid. 



 3.  Method of Payment.  




    Interest on this Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name
that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such Interest. Principal of and Interest on, Global Securities will be
payable, for the benefit of the holders of this Security, to the Depositary in immediately available funds. 


    Principal
on Physical Securities will be payable at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest on
Physical Securities will be payable by (i) U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as such address shall appear in the
Register, or (ii) upon application to the Registrar not later than the relevant Regular Record Date by a Holder of an aggregate Principal amount in excess of $5,000,000, wire transfer in
immediately available funds. 



 4.  Paying Agent and Registrar.  




    Initially, The Bank of New York will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without notice to any Holder. 


5





 

 5.  Optional Redemption  




    At any time on or after July 15, 2004, except for Securities that it is required to purchase pursuant to Section 11.1 of the Indenture or
required to convert pursuant to Section 12.1 of the Indenture, the Company may, at its option, redeem this Security in whole at any time or in part from time to time, on any date prior to the
Stated Maturity of the Security, upon notice as set forth in Section 10.4 of the Indenture, at the Redemption Price (expressed in percentages of the principal amount) set forth below if, but
only if, redeemed on a Redemption Date occurring during the 12-month period beginning on the dates indicated: 



	During the Twelve Months Commencing
 
	 	Redemption

Price

	July 15, 2004	 	102.8750%
	July 15, 2005	 	101.4375%






    If
the Company exercises its option to redeem this Security pursuant, a Holder may nevertheless exercise its right to have this Security purchased pursuant to Section 11.1 of
the Indenture, if applicable, and to convert such Securities pursuant to Article 12 of the Indenture, in each case, until the close of business two Business Days immediately preceding the
Redemption Date. 


    The
Company shall pay any Interest to the Holder of this Security if called for redemption (including if it is converted into Common Stock after the date the notice of the redemption
is mailed and prior to the Redemption Date) accrued but not paid to, but excluding, the Redemption Date pursuant to Section 2.1(e) of the Indenture; provided,
however, that if the Redemption Date is an Interest Payment Date, the Company shall pay the Interest to the Holder of the Security at the close of business on such Interest
Payment Date. If the Security is redeemed, then on and after the Redemption Date, Interest shall cease to accrue on Securities or portions of Securities called for redemption, unless the Company
defaults in the payment of the Redemption Price. 


    Securities
in original denominations larger than $1,000 may be redeemed in part. If any Security selected for partial redemption is converted or elected to be purchased in part before
termination of the conversion right with respect to the portion of the Security so selected, the converted or purchased portion of such Security shall be deemed to be the portion selected for
redemption (provided, however, that the Holder of such Security so converted or purchased and deemed redeemed shall not be entitled to any additional interest payment as a result of such deemed
redemption than such Holder would have
otherwise been entitled to receive upon conversion or purchase of such Security). Securities which have been converted or purchased during a selection of Securities to be redeemed may be treated by
the Trustee as Outstanding for the purpose of such selection. 


    The
Company is required to furnish the notice of redemption to the Holders as provided in the Indenture. 



 6.  Purchase Right Upon a Change of Control.  




    If a Change in Control occurs, this Security, at the Holder's option, shall have the right, subject to the conditions and in accordance with the provisions of
the Indenture, to require the Company to purchase this Security (or any portion of the principal amount hereof that is at least $1,000 or an integral multiple thereof, provided that the portion of the
principal amount of this Security to be Outstanding after such purchase is at least equal to $1,000 or an integral multiple thereof) at the Change of Control Purchase Price, plus any accrued and
unpaid Interest to, but excluding, the Change of Control Purchase Date; provided, however, that (i) installments of Interest on this Security if
its Stated Maturity is prior to or on the Change of Control Purchase Date shall be payable to the Holders of this Security, or one or more Predecessor Securities, registered as such on the relevant
Regular Record Date according to their terms and the provisions of Section 2.1 of the Indenture and (ii) no 


6





 


Holder shall have a Purchase Right upon a Change of Control unless prior to any payment of the Change of Control Purchase Price on the Change of Control Purchase Date the Company shall have made any
applicable change of control offers required by the Company's Senior Debt and has purchased all Senior Debt validly tendered for payment in connection with such change of control offers;  provided, further that the Company may elect to satisfy its obligation with respect to the Holders' Purchase Right (in cash or Common Stock or a
combination thereof) by delivering to the applicable Holders the number of shares of Common Stock equal to (i) the Change of Control Purchase Price divided (to the extent not paid in cash) by
(ii) 95% of the average of the Trading Prices per share of Common Stock for the five consecutive Trading Days immediately preceding and including the third Trading Day prior to the Purchase
Date. 


    The
Company is required to furnish a Change of Control Notice to the Holders as provided in the Indenture. To exercise a Purchase Right, a Holder must deliver to the Trustee a
completed Change of Control Notice as provided in the Indenture. 



 7.  Conversion Right.  




    Subject to and upon compliance with the provisions of the Indenture, the Holder of Securities is entitled, at such Holder's option, at any time and from tine
to time, to convert this Security (or any portion of the principal amount hereof which is $1,000 or an integral multiple thereof), at the principal amount thereof or of such portion, into duly
authorized, fully paid and nonassessable shares of Common Stock of the Company at the Conversion Price in effect at the time of conversion. 


    The
conversion right shall expire at the close of business on the Stated Maturity. If this Security (or a portion thereof) is called for redemption, such conversion right in respect
of the Security (or such portion thereof) so called, shall expire at the close of business on the second Business Day preceding the Redemption Date, unless the Company defaults in making the payment
due upon redemption. In the case of a Change of Control for which the Holder exercises its Purchase Right with respect to the Security (or a portion thereof), such conversion right in respect of the
Security (or portion thereof) shall expire at the close of business on the second Business Day immediately preceding the Change of Control Purchase Date. The Conversion Price shall be initially equal
to $38.40 per share of Common Stock, which may be adjusted under certain circumstances as provided in the Indenture. 


    To
exercise the conversion right with respect to a Physical Security, a Holder must (1) deliver a completed conversion notice, the form of which is provided in
Exhibit C, to the Depositary stating that the Holder elects to convert such Physical Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be
converted, (2) deliver duly signed completed conversion notice and the Physical Security duly endorsed or assigned to the Company or in blank, at the office of any Conversion Agent,
(3) pay all Interest to which the Holder is not entitled, if any, pursuant to Section 2.1(e) and (4) pay any transfer taxes or other applicable taxes or duties, if required. To
convert interests in a Global Security, a Holder must deliver to DTC the appropriate instruction form for conversion pursuant to DTC's conversion program or must deliver instructions in accordance
with Euroclear's or Clearstream's normal operating procedures after application has been made to make the underlying Common Stock eligible for trading on Euroclear or Clearstream, as applicable. 


    To
the extent provided in Section 2.1(e) of the Indenture, if this Security is surrendered for conversion during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date (except in the case of any Security whose Stated Maturity is prior to such Interest Payment Date) shall be accompanied by
payment by such Holder in immediately available funds to the Company of an amount equal to the Interest to be received on such Interest Payment Date on principal amount of Securities being surrendered
for conversion. To the extent provided in Section 2.1 of the Indenture, if this Security has been called for redemption by the Company in a notice of redemption pursuant to Section 10.4
of the Indenture and are converted prior 


7





 


to redemption, shall not require such concurrent payment to the Company surrender for conversion, and if converted during time period set forth in the preceding sentence, the Holders of such converted
Securities shall be entitled to receive (and retain) any accrued Interest on the Principal of the surrendered Security, if at all. 


    Securities
shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the shares of Common Stock issuable upon conversion
shall be treated for all purposes as the record holder or holders of such shares of Common Stock at such time. 



    A
Security in respect of which a Holder has delivered a Change of Control Purchase Notice exercising the option of such Holder to require the Company to purchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with Section 11.3 of the Indenture. 


    No
fractional shares of Common Stock will be issued upon conversion of any Securities. Instead of any fractional share of Common Stock which would otherwise be issued upon conversion
of such Securities, the Company shall pay a cash adjustment as provided in the Indenture. 



    Reference
is made to the Indenture for other rights and obligations of the Holders of this Security with respect to their right to convert this Security or any portion hereof. 



 8.  Subordination.  




    The Indebtedness evidenced by this Security is, to the extent and in the manner provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all amounts then due on all existing and future Senior Debt of the Company, and this Security is issued subject to such provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on such Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee such Holder's attorney-in-fact for any and all such purposes. 



 9.  No Sinking Fund.  




    The Securities are not subject to a sinking fund. 



 10.  Absolute Obligation.  




    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 under the
Indenture and this Security which is absolute and unconditional, to pay the Principal of or Interest on this Security at the place and time and in the coin or currency herein prescribed. 



 11.  Denominations; Transfer; Exchange.  




    The Securities are issuable in registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. A Holder may
register the transfer or exchange of Securities in accordance with the Indenture. 


    Pursuant
to the Indenture, when this Security (or any portion thereof in integral multiples of 1,000 in principle amount) is presented to the Registrar with a request to register the
transfer or to exchange it for an equal principal amount other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if the requirements hereunder for
such transactions are met (including that such portions thereof are duly endorsed or accompanied by a written instrument of 


8





 


transfer duly executed by the Holder thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to Section 2.4 of the Indenture, to permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or
exchange or redemption of the Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other similar governmental charge payable upon exchanges pursuant to Sections 2.14, 7.5 or 10.7 of the Indenture). 


    Pursuant
to the Indenture, neither the Company nor the Registrar shall be required to exchange or register a transfer of this Security (or any portion thereof): 



    (1) for
a period of 15 days prior to the day of any selection of any portion of this Security for redemption under Article 10 hereof; 


    (2) so
selected for redemption or, if a portion of this Security is selected for redemption, such portion thereof selected for redemption; or 



    (3) surrendered
for conversion or, if a portion of this Security is surrendered for conversion, such portion thereof surrendered for conversion. 




    In
the event of redemption, conversion or purchase of the Securities in part only, a new Security or Securities for the unredeemed, unconverted or unpurchased portion thereof will be
issued in the name of the Holder hereof. 



 12.  Persons Deemed Owners.  




    The registered Holder of this Security shall be treated as its owner for all purposes. 



 13.  Discharge Prior to Redemption or Stated Maturity.  




    Subject to certain conditions contained in the Indenture, the Company may discharge its obligations under the Securities and the Indenture if (1) (a)
all of the Outstanding Securities shall become due and payable at their scheduled Stated Maturity within one year or (b) all of the Outstanding Securities are scheduled for redemption within
one year, and (2) the Company shall have deposited with the Trustee cash or, in the event of a conversion pursuant to the terms of the Indenture, Common Stock, sufficient to pay all amounts due
and owing on all outstanding Securities on the date of their scheduled maturity or the scheduled date of redemption, as the case may be. 



 14.  Amendment; Supplement; Waiver.  




    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 a majority of the aggregate principal amount of the
Outstanding Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of the Indenture). The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon 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 or such other Security. 


9





 


    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 of and Interest on this Security at the times, places and rate, and in the coin or currency, herein prescribed or to convert this Security (or pay cash in lieu of conversion) as
provided in the Indenture. 



 15.  Defaults and Remedies.  




    The Indenture provides that an Event of Default with respect to the Securities occurs when any of the following occurs: 



    (a) the
Company defaults in the payment of the Principal on this Security when the same becomes due and payable at its Stated Maturity, upon redemption, purchase, upon
declaration, when due for purchase, by the Company or otherwise; 


    (b) the
Company defaults in the payment of an installment of Interest on this Security when it becomes due and payable and such default continues for a period of
30 days, whether or not such payment is prohibited by the terms of the Indenture; 


    (c) the
Company fails to perform or observe any other term, covenant or agreement contained in the Securities or this Indenture and the default continues for a period
of 60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given 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; 


    (d) the
Company defaults under any Indebtedness for money borrowed by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, the aggregate outstanding principal amount of which is in an amount in excess of $20.0 million, for a period
of 60 days after written notice to the Company by
the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Outstanding Securities, which default (i) is caused the Company's failure to pay
when due principal or premium, if any, of or interest on such Indebtedness by the end of the applicable grace period, if any, unless such Indebtedness is discharged or (ii) results in the
acceleration of such Indebtedness because of a default with respect to such Indebtedness without such Indebtedness having been discharged or such non-payment or acceleration having been
cured, waived, rescinded or annulled; 


    (e) the
entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding under any applicable U.S.
federal or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company or any of its Subsidiaries that is a Significant Subsidiary or any
group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of 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 


10







  




    (f)  the
commencement by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary, to the entry of a decree or order for relief in respect of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of
two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, of a petition or answer or consent seeking reorganization or relief
under any applicable U.S. federal or state law, or the consent by the Company to the filing of such petition or to the appointment of or the 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 the Company or any of its Subsidiaries that is a Significant
Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, of an assignment for the benefit of creditors, or the admission by the Company or
any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, expressly in furtherance of any such action. 


    A
Default under clause (c) or (d) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% of the principal amount of the
Security at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in
clause (c) or (d) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a "Notice of Default". 



    If
an Event of Default shall occur and be continuing, the Principal of all the Securities may be declared due and payable in the manner and with the effect, and the Holder of this
Security shall have the remedies and rights related thereto, provided in the Indenture. 



 16.  Authentication.  




    This Security shall not be valid until the Trustee executes the certificate of authentication in the space provided therefore on the Security. 



 17.  Abbreviations.  




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



 18.  CUSIP Numbers.  




    Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused one or more CUSIP numbers, as
appropriate, to be printed on this Security and the Trustee may use CUSIP numbers in notices of redemption as a convenience to 


11





 


Holders. No representation is made as to the accuracy of such numbers either as printed on this Security or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon. 



 19.  Governing Law.  




    The Indenture and this Security shall be governed by, and construed in accordance with, the laws of the State of New York. 



 20.  Successor Corporation.  




    In the event a successor corporation assumes all the obligations of the Company under this Security, pursuant to the terms hereof and of the Indenture, the
Company will be released from all such obligations. 


12





 
 
 

ASSIGNMENT FORM    
  


    To assign this Security, fill in the form below and have your signature guaranteed: (I) or (we) assign and transfer this
Security to:



	

 (Insert assignee's social security or tax I.D. number)
	

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

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

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Signature Guarantee*: _______________________________________________________________






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


13






 
 
 

CONVERSION NOTICE    
  



	

TO:	
 	

InterMune, Inc.

3280 Bayshore Boulevard

Brisbane, CA 94005





    The
undersigned registered owner of this Security hereby irrevocably exercises the option to convert this Security, or the portion hereof (which is $1,000 principal amount or an
integral multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If shares or any portion of this Security not converted are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto. To the extent provided in the Indenture, any amount required to be paid to the undersigned on account of Interest, accompanies
this Security. 



	 	

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Social Security or other Taxpayer Identification Number: _____________________________________
	 	

Principal amount to be converted (if less than all): $ ________________________________________
	 	

Signature Guarantee*: __________________________________________________
	 	
Fill in for registration of shares (if to be issued) and Securities (if to be delivered) other than to and in the name of the registered holder
	

(Name)
	

 (Street Address)
	

 (City, State and Zip Code)






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).  


14





 
  
 

    CHANGE OF CONTROL PURCHASE NOTICE    
  



	

To:	
 	

InterMune, Inc.

3280 Bayshore Boulevard

Brisbane, CA 94005





    The
undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from InterMune, Inc. (the
"Company") as to the occurrence of a Change of Control with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this
Security, together with Interest accrued and unpaid to, but excluding, such date, to the registered holder hereof. 



	 	

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Social Security or other Taxpayer Identification Number: _____________________________________
	 	

Principal amount to be converted (if less than all): $ ________________________________________
	 	

Signature Guarantee*: _______________________________________________________________






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).  


15






  



 
 

SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES2    




    The following exchanges of a part of this Global Security for Physical Securities have been made:



	Date of Exchange
 
	 	Amount of decrease in

Principal Amount of

this Global Security
	 	Amount of increase in

Principal Amount of

this Global Security
	 	Principal Amount of

this Global Security

following such decrease

(or increase)
	 	Signature of

authorized officer

of Trustee

	

 	
 	

 	
 	

 	
 	

 	
 	

 






	2
	This
schedule should be included only if the Security is issued in physical form. 


A–1






  



EXHIBIT B  


 
  ASSIGNMENT FORM    
  


    To assign this Security, fill in the form below and have your signature guaranteed: 



	 	(I) or (we) assign and transfer this Security to:
	

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

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

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

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Signature Guarantee*: _______________________________________________________________






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


B–1






  



EXHIBIT C  


 
  CHANGE OF CONTROL PURCHASE NOTICE    
  



	

TO:	
 	

Intermune, Inc.

1710 Gilbreth Avenue, Suite 301

Burlingame, California 94010





    The
undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a notice from InterMune, Inc. (the
"Company") as to the occurrence of a Change of Control with respect to the Company and requests and instructs the Company to repay the entire principal
amount of this Security, or the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this
Security, together with interest, if any, accrued and unpaid to, but excluding, such date, to the registered holder hereof. 



	 	

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Signature Guarantee*: _______________________________________________________________
	 	

Social Security or other Taxpayer Identification Number: _____________________________________
	 	

Principal amount to be converted (if less than all): $ ________________________________________






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).  


C–1






  



EXHIBIT D  


 
  FORM OF CONVERSION NOTICE    
  



	

To:	
 	

InterMune, Inc.

1710 Gilbreth Avenue, Suite 301

Burlingame, California 94010





    The
undersigned registered owner of this Security hereby irrevocably exercises the option to convert this Security, or the portion hereof (which is $1,000 principal amount or an
integral multiple thereof) below designated, into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If shares or any portion of this Security not converted are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto. To the extent provided in the Indenture, any amount required to be paid to the undersigned on account of interest, if any,
accompanies this Security. 



	 	

Your Name: _______________________________________________________________________
	 	(Print your name exactly as it appears on the face of this Security)
	 	

Dated: ___________________________________________________________________________
	 	

Your Signature: ____________________________________________________________________
	 	(Sign exactly as your name appears on the face of this Security)
	 	

Signature Guarantee*: _______________________________________________________________
	 	

Social Security or other Taxpayer Identification Number: _____________________________________
	 	

Principal amount to be converted (if less than all): $ ________________________________________
	 	
Fill in for registration of shares (if to be issued) and Securities (if to be delivered) other than to and in the name of the registered holder
	

(Name)
	

 (Street Address)
	

 (City, State and Zip Code)






	*
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


D–1









QuickLinks


CROSS-REFERENCE TABLE


Table of Contents


RECITALS OF THE COMPANY

NOW, THEREFORE, THIS INDENTURE WITNESSETH

ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE


ARTICLE 2 THE SECURITIES


ARTICLE 3 DISCHARGE of indenture

ARTICLE 4 DEFAULTS AND REMEDIES


ARTICLE 5

ARTICLE 6

ARTICLE 7


ARTICLE 8 MEETING OF HOLDERS OF SECURITIES

ARTICLE 9

ARTICLE 10

ARTICLE 11


ARTICLE 12


ARTICLE 13


ARTICLE 14


SECURITY

INTERMUNE, INC.

INTERMUNE, INC.


ASSIGNMENT FORM

CONVERSION NOTICE

CHANGE OF CONTROL PURCHASE NOTICE


SCHEDULE OF EXCHANGES FOR PHYSICAL SECURITIES 2


ASSIGNMENT FORM


CHANGE OF CONTROL PURCHASE NOTICE



FORM OF CONVERSION NOTICE