EXHIBIT 4.6



 




EXHIBIT 4.6


MERRILL LYNCH & CO., INC.


(a Delaware corporation)


Liquid Yield OptionTM Notes due 2032

(Zero Coupon – Floating Rate – Senior)











INDENTURE


Dated as of March 13, 2002









JPMORGAN CHASE BANK,

Trustee







TM Trademark of Merrill Lynch & Co., Inc.





 






 





Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	
ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE
	 
	 	 	 	 	 	 
	Section 1.01.
	 	Definitions	 	 	1	 
	Section 1.02.
	 	Other Definitions	 	 	7	 
	Section 1.03.
	 	Rules of Construction	 	 	8	 
	Section 1.04.
	 	Acts of Holders	 	 	8	 
	 
	 	 	 	 	 	 
	
ARTICLE II

THE SECURITIES
	 
	 	 	 	 	 	 
	Section 2.01.
	 	Form and Dating	 	 	9	 
	Section 2.02.
	 	Execution and Authentication	 	 	10	 
	Section 2.03.
	 	Registrar, Paying Agent, Conversion Agent and Depositary	 	 	10	 
	Section 2.04.
	 	Paying Agent To Hold Money and Securities in Trust	 	 	11	 
	Section 2.05.
	 	Securityholder Lists	 	 	11	 
	Section 2.06.
	 	Transfer and Exchange	 	 	11	 
	Section 2.07.
	 	Replacement Securities	 	 	12	 
	Section 2.08.
	 	Outstanding Securities; Determinations of Holders’ Action	 	 	13	 
	Section 2.09.
	 	Temporary Securities	 	 	14	 
	Section 2.10.
	 	Cancellation	 	 	14	 
	Section 2.11.
	 	Global Securities	 	 	15	 
	Section 2.12.
	 	CUSIP Numbers	 	 	16	 
	 
	 	 	 	 	 	 
	
ARTICLE III

REDEMPTION AND PURCHASES
	 
	 	 	 	 	 	 
	Section 3.01.
	 	Right to Redeem; Notices to Trustee	 	 	16	 
	Section 3.02.
	 	Selection of Securities to Be Redeemed	 	 	16	 
	Section 3.03.
	 	Notice of Redemption	 	 	17	 
	Section 3.04.
	 	Effect of Notice of Redemption	 	 	18	 
	Section 3.05.
	 	Deposit of Redemption Price	 	 	18	 
	Section 3.06.
	 	Securities Redeemed in Part	 	 	18	 
	Section 3.07.
	 	[Reserved]	 	 	18	 
	Section 3.08.
	 	Purchase of Securities at the Option of the Holder	 	 	18	 
	Section 3.09.
	 	Purchase of Securities at Option of the Holder upon Change in Control	 	 	25	 
	Section 3.10.
	 	Effect of Purchase Notice or Change in Control Purchase Notice	 	 	28	 
	Section 3.11.
	 	Deposit of Purchase Price or Change in Control Purchase Price	 	 	29	 
	Section 3.12.
	 	Securities Purchased in Part	 	 	30	 










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	Section 3.13.
	 	Covenant to Comply With Securities Laws Upon Purchase of Securities	 	 	30	 
	Section 3.14.
	 	Repayment to the Company	 	 	30	 
	 
	 	 	 	 	 	 
	
ARTICLE IV

COVENANTS
	 
	 	 	 	 	 	 
	Section 4.01.
	 	Payment of Securities	 	 	31	 
	Section 4.02.
	 	SEC Reports	 	 	31	 
	Section 4.03.
	 	Compliance Certificate; Notice of Defaults	 	 	31	 
	Section 4.04.
	 	Further Instruments and Acts	 	 	31	 
	Section 4.05.
	 	Maintenance of Office or Agency	 	 	32	 
	Section 4.06.
	 	Calculation of Certain Amounts	 	 	32	 
	Section 4.07.
	 	Limitation Upon Creation of Liens on Voting Stock of Certain Subsidiaries	 	 	32	 
	Section 4.08.
	 	Limitation on Disposition of Voting Stock of, and Merger and Sale of Assets by, MLPF&S	 	 	33	 
	Section 4.09.
	 	Waiver of Certain Covenants	 	 	33	 
	 
	 	 	 	 	 	 
	
ARTICLE V

SUCCESSOR CORPORATION
	 
	 	 	 	 	 	 
	Section 5.01.
	 	When Company May Merge or Transfer Assets	 	 	34	 
	 
	 	 	 	 	 	 
	
ARTICLE VI

DEFAULTS AND REMEDIES
	 
	 	 	 	 	 	 
	Section 6.01.
	 	Events of Default	 	 	35	 
	Section 6.02.
	 	Acceleration	 	 	36	 
	Section 6.03.
	 	Other Remedies	 	 	37	 
	Section 6.04.
	 	Waiver of Past Defaults	 	 	37	 
	Section 6.05.
	 	Control by Majority	 	 	37	 
	Section 6.06.
	 	Limitation on Suits	 	 	37	 
	Section 6.07.
	 	Rights of Holders to Receive Payment	 	 	38	 
	Section 6.08.
	 	Collection Suit by Trustee	 	 	38	 
	Section 6.09.
	 	Trustee May File Proofs of Claim	 	 	38	 
	Section 6.10.
	 	Priorities	 	 	39	 
	Section 6.11.
	 	Undertaking for Costs	 	 	39	 
	Section 6.12.
	 	Waiver of Stay, Extension or Usury Laws	 	 	39	 
	 
	 	 	 	 	 	 
	
ARTICLE VII

TRUSTEE
	 
	 	 	 	 	 	 
	Section 7.01.
	 	Rights of Trustee	 	 	40	 










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	Section 7.02.
	 	Individual Rights of Trustee	 	 	40	 
	Section 7.03.
	 	Trustee's Disclaimer	 	 	41	 
	Section 7.04.
	 	Notice of Defaults	 	 	41	 
	Section 7.05.
	 	Reports by Trustee to Holders	 	 	41	 
	Section 7.06.
	 	Compensation and Indemnity	 	 	41	 
	Section 7.07.
	 	Replacement of Trustee	 	 	42	 
	Section 7.08.
	 	Successor Trustee by Merger	 	 	43	 
	Section 7.09.
	 	Eligibility; Disqualification	 	 	43	 
	Section 7.10.
	 	Preferential Collection of Claims Against Company	 	 	43	 
	 
	 	 	 	 	 	 
	
ARTICLE VIII

DISCHARGE OF INDENTURE
	 
	 	 	 	 	 	 
	Section 8.01.
	 	Discharge of Liability on Securities	 	 	43	 
	Section 8.02.
	 	Repayment to the Company	 	 	43	 
	 
	 	 	 	 	 	 
	
ARTICLE IX

AMENDMENTS
	 
	 	 	 	 	 	 
	Section 9.01.
	 	Without Consent of Holders	 	 	44	 
	Section 9.02.
	 	With Consent of Holders	 	 	44	 
	Section 9.03.
	 	Compliance with Trust Indenture Act	 	 	45	 
	Section 9.04.
	 	Revocation and Effect of Consents, Waivers and Actions	 	 	45	 
	Section 9.05.
	 	Notation on or Exchange of Securities	 	 	45	 
	Section 9.06.
	 	Trustee to Sign Supplemental Indentures	 	 	46	 
	Section 9.07.
	 	Effect of Supplemental Indentures	 	 	46	 
	 
	 	 	 	 	 	 
	
ARTICLE X

CONTINGENT INTEREST
	 
	 	 	 	 	 	 
	Section 10.01.
	 	Contingent Interest	 	 	46	 
	Section 10.02.
	 	Payment of Contingent Interest; Contingent Interest Rights Preserved	 	 	47	 
	Section 10.03.
	 	Bid Solicitation Agent	 	 	47	 
	 
	 	 	 	 	 	 
	
ARTICLE XI

CONVERSION
	 
	 	 	 	 	 	 
	Section 11.01.
	 	Conversion Privilege	 	 	48	 
	Section 11.02.
	 	Conversion Procedure	 	 	48	 
	Section 11.03.
	 	Fractional Shares	 	 	49	 
	Section 11.04.
	 	Taxes on Conversion	 	 	50	 
	Section 11.05.
	 	Company to Provide Stock	 	 	50	 
	Section 11.06.
	 	Adjustment for Change in Capital Stock	 	 	50	 










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	Section 11.07.
	 	Adjustment for Rights Issue	 	 	51	 
	Section 11.08.
	 	Adjustment for Other Distributions	 	 	52	 
	Section 11.09.
	 	When Adjustment May Be Deferred	 	 	54	 
	Section 11.10.
	 	When No Adjustment Required	 	 	54	 
	Section 11.11.
	 	Notice of Adjustment	 	 	55	 
	Section 11.12.
	 	Voluntary Increase	 	 	55	 
	Section 11.13.
	 	Notice of Certain Transactions	 	 	56	 
	Section 11.14.
	 	Reorganization of Company; Special Distributions	 	 	56	 
	Section 11.15.
	 	Company Determination Final	 	 	57	 
	Section 11.16.
	 	Trustee's Adjustment Disclaimer	 	 	57	 
	Section 11.17.
	 	Simultaneous Adjustments	 	 	57	 
	Section 11.18.
	 	Successive Adjustments	 	 	57	 
	Section 11.19.
	 	Rights Issued in Respect of Common Stock Issued Upon Conversion	 	 	57	 
	 
	 	 	 	 	 	 
	
ARTICLE XII

PAYMENT OF CONTINGENT INTEREST
	 
	 	 	 	 	 	 
	Section 12.01.
	 	Interest Payments	 	 	58	 
	Section 12.02.
	 	Defaulted Interest	 	 	58	 
	Section 12.03.
	 	Interest Rights Preserved	 	 	59	 
	 
	 	 	 	 	 	 
	
ARTICLE XIII

MISCELLANEOUS
	 
	 	 	 	 	 	 
	Section 13.01.
	 	Trust Indenture Act Controls	 	 	59	 
	Section 13.02.
	 	Notices	 	 	59	 
	Section 13.03.
	 	Communication by Holders with Other Holders	 	 	60	 
	Section 13.04.
	 	Certificate and Opinion as to Conditions Precedent	 	 	60	 
	Section 13.05.
	 	Statements Required in Certificate or Opinion	 	 	60	 
	Section 13.06.
	 	Separability Clause	 	 	61	 
	Section 13.07.
	 	Rules By Trustee, Paying Agent, Conversion Agent and Registrar	 	 	61	 
	Section 13.08.
	 	[Reserved]	 	 	61	 
	Section 13.09.
	 	GOVERNING LAW	 	 	61	 
	Section 13.10.
	 	No Recourse Against Others	 	 	61	 
	Section 13.11.
	 	Successors	 	 	61	 
	Section 13.12.
	 	Multiple Originals	 	 	61	 
	Section 13.13.
	 	References	 	 	61	 
	Section 13.14.
	 	Calculations	 	 	62	 
	Section 13.15.
	 	Tax Matters	 	 	62	 
	 
	 	 	 	 	 	 
	SIGNATURES
	ANNEX A
	EXHIBIT A










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CROSS-REFERENCE TABLE*




	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section
	310(a)(1)
	 	 	 	7.09
	(a)(2)
	 	 	 	N.A.
	(a)(3)
	 	 	 	N.A.
	(a)(4)
	 	 	 	N.A.
	(b)(1)
	 	 	 	7.09
	(c)
	 	 	 	N.A.
	311(a)
	 	 	 	7.10
	(b)
	 	 	 	7.10
	(c)
	 	 	 	N.A.
	312(a)
	 	 	 	2.05
	(b)
	 	 	 	13.03
	(c)
	 	 	 	13.03
	313(a)
	 	 	 	7.05
	(b)
	 	 	 	7.05
	(c)
	 	 	 	N.A.
	(d)
	 	 	 	N.A.
	314(a)
	 	 	 	4.02
	(b)
	 	 	 	N.A.
	(c)(1)
	 	 	 	N.A.
	(c)(2)
	 	 	 	N.A.
	(c)(3)
	 	 	 	N.A.
	(d)
	 	 	 	N.A.
	(e)
	 	 	 	N.A.
	(f)
	 	 	 	4.04
	315(a)
	 	 	 	7.01
	(b)
	 	 	 	7.04
	(e)
	 	 	 	6.11
	316(a)(last sentence)
	 	 	 	2.08
	(a)(1)(A)
	 	 	 	6.05
	(a)(1)(B)
	 	 	 	6.04
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	N.A.
	317(a)(1)
	 	 	 	N.A.
	(a)(2)
	 	 	 	N.A.
	(b)
	 	 	 	2.04
	318(a)
	 	 	 	N.A.







         N.A. means Not Applicable.                                         




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








 






 







         INDENTURE, dated as of March 13, 2002, between Merrill Lynch & Co., Inc.,
a Delaware corporation (the “Company”), and JPMorgan Chase Bank, a
banking corporation organized and existing under the laws of the State of New
York, as trustee (the “Trustee”).



         Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company’s Liquid Yield
OptionTM Notes due 2032 (Zero Coupon — Floating Rate — Senior) (the
“Securities”):



Article I




DEFINITIONS AND INCORPORATION BY REFERENCE




         Section 1.01. Definitions.



         “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 or cause the direction of 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.



         “Average Sale Price” means the average of the Sale Prices of the Common
Stock or other security for which the Average Sale Price is to be determined
for the shorter of (1) 30 consecutive Trading Days ending on the last full
Trading Day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Sale Price
is being calculated, or (2) the period (x) commencing on the date next
succeeding the first public announcement of (a) the issuance of rights,
warrants or options or (b) the distribution, in each case, in respect of which
the Average Sale Price is being calculated and (y) proceeding through the last
full Trading Day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Sale Price
is being calculated (excluding days within such period, if any, which are not
Trading Days), or (3) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding (a) issuance
of rights, warrants or options or (b) distribution, in each case, for which an
adjustment is required by the provisions of Section 11.06(d) or 11.07 and (y)
proceeding through the last full Trading Day prior to the Time of Determination
with respect to the rights, warrants or options or distribution in respect of
which the Average Sale Price is being calculated (excluding days within such
period, if any, which are not Trading Days).



         In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, combination or reclassification to which
Section 11.06(a), (b), (c) or (d) applies occurs during the period applicable
for calculating “Average Sale Price” pursuant to the definition in the
preceding sentence, “Average Sale Price” shall be calculated for such period in
a manner determined by the Board of Directors of the Company to reflect the
impact of such dividend, subdivision, combination or reclassification on the
Sale Price of the Common Stock or such other security during such period.






 






 





         “Bankruptcy Law” means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.



         “Board of Directors” or “Board” means, with respect to any matter, either
the board of directors of the Company or any committee of such board duly
authorized, with respect to such matter, to exercise the powers of such board.



         “Business Day” means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New
York.



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



         “Common Stock” means the Common Stock, par value $1.33 1⁄3 per share,
including the Rights attached thereto of the Company, as it exists on the date
of this Indenture or any other shares of capital stock of the Company into
which such common stock shall be reclassified or changed.



         “Company” means the party named as the “Company” in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.



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



         “Contingent Principal Amount” of a Security means the Original Principal
Amount increased daily by the applicable Yield. The Contingent Principal
Amount will accrue daily at the applicable Yield applied to the Contingent
Principal Amount of the Security as of the day immediately preceding the most
recent Yield Reset Date.



         “Controlled Subsidiary” means any corporation more than 80% of the
outstanding Voting Stock, except for qualifying shares, of which shall at the
time be owned directly or indirectly by the Company.



         “corporation” includes corporations, associations, companies and business
trusts.



         “Custodian” means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.



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






2






 





         “Depositary” means, with respect to the Securities issuable or issued in
whole or in part in global form, the person specified in Section 2.03 as the
Depositary with respect to the Securities, until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and, thereafter,
“Depositary” shall mean or include such successor. The foregoing sentence
shall likewise apply to any subsequent such successor or successors.



         “Global Securities” means Securities that are in the form of the
Securities attached hereto as Exhibit A.



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



         “Indenture” means this Indenture as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.



         “Issue Date” of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.



         “Issue Price” of each Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is
sold as set forth on the face of the Security.



         “London Banking Day” means a day on which commercial banks are open for
business, including dealings in United States dollars, in London.



         “Market Price” means the average of the Sale Prices of the Common Stock or
other security for which the Market Price is to be determined for the five
Trading Day period ending on (if the third Business Day prior to the applicable
Purchase Date is a Trading Day, or if not, then on the last Trading Day prior
to) the third Business Day immediately prior to, but not including, the
applicable Purchase Date, appropriately adjusted to take into account the
actual occurrence, during the period commencing on the first of such Trading
Days during such five Trading Day period and ending on such Purchase Date, of
any event described in Section 11.06, 11.07 or 11.08 that would result in an
adjustment to the Conversion Rate; subject, however, to the conditions set
forth in Sections 11.09 and 11.10.



         “MLPF&S” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, a
Delaware corporation.



         “Moneyline Telerate Page 3750” means the display on Moneyline Telerate (or
any successor service) on such page (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank rates of
major banks for United States dollars.



         “Officer” means Chairman of the Board, the President, any Vice President,
the Treasurer, the Secretary, any Assistant Treasurer or Assistant Secretary of
the Company.






3






 





         “Officers’ Certificate” means a written certificate containing the
information specified in Sections 13.04 and 13.05, if applicable, signed in the
name of the Company by the Chairman of
the Board, the President, a Vice President or the Treasurer and by an
Assistant Treasurer, the Secretary or an Assistant Secretary, and delivered to
the Trustee.



         “Opinion of Counsel” means a written opinion containing the information
specified in Sections 13.04 and 13.05, if applicable, rendered by legal counsel
who may be (i) an employee of, or counsel to, the Company or (ii) other counsel
designated by the Company and acceptable in the reasonable judgment of the
Trustee.



         “Original Principal Amount” of each Security means the original principal
amount as set forth on the face of the Security.



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



         “Principal”, “Principal Amount” or “principal amount” of a Security on any
date means the Contingent Principal Amount of such Security on such date.



         “Purchase Date” shall mean each of March 13, 2005, March 13, 2007, March
13, 2012, March 13, 2017, March 13, 2022 and March 13, 2027.



         “Purchase Price” of a Security means the Contingent Principal Amount of
the Security on the applicable Purchase Date.



         “Redemption” or “redemption” shall have the meaning set forth in Section
3.01.



         “Redemption Date” or “redemption date” shall mean the date specified for
redemption of any of the Securities in accordance with the terms of the
Securities and this Indenture.



         “Redemption Price” or “redemption price” shall have the meaning set forth
in paragraph 6 of the Securities.



         "Regular cash dividends” means quarterly or other periodic cash dividends
on the Common Stock as declared by the Board as part of its cash dividend
payment practices and that are not designated by the Board as extraordinary or
special or other nonrecurring dividends.



         “Rights” means the preferred stock purchase rights issued pursuant to the
Amended and Restated Rights Agreement of the Company adopted on December 2,
1997, as amended or restated from time to time.



         “Sale Price” of a single share of Common Stock or unit of any other
security for which the Sale Price is to be determined on any Trading Day means
the closing per share sale price for the Common Stock or such other security
(or if no closing sale price is reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and the
average ask prices) on such Trading Day as reported on The New York Stock Exchange or other






4






 






principal United States securities exchange on which the
Common Stock or such other security is traded or, if the Common Stock or such
other security is not listed on a United States national or regional stock
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau
Incorporated. In the absence of a quotation, the Company will determine the
Sale Price on the basis of such quotations as it considers appropriate.



         “SEC” means the Securities and Exchange Commission.



         “Securities” means any of the Company’s Liquid Yield OptionTM Notes due
2032 (Zero Coupon — Floating Rate — Senior), as amended or supplemented from
time to time in accordance with the terms hereof, issued under this Indenture.



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



         “Stated Maturity”, when used with respect to any Security, means the date
specified in such Security as the final fixed date on which the Contingent
Principal Amount of such Security is due and payable.



         “Subsidiary” means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock. “Wholly-owned”, when
used with reference to a Subsidiary, means a Subsidiary of which all of the
outstanding capital stock (except for qualifying shares) is owned by the
Company or by one or more wholly-owned Subsidiaries.



         “Tax Original Issue Discount” means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for United States
Federal income tax purposes.



         “3-month LIBOR” means the rate determined on the Yield Determination Date
next preceding the related Yield Reset Date as:



               (a) the rate for 3-month deposits in United States dollars commencing on
the related Yield Reset Date, that appears on the Moneyline Telerate Page 3750
as of 11:00 A.M., London time, on the Yield Determination Date, or



               (b) if fewer than two offered rates appear, or no rate appears, as the
case may be, on the particular Yield Determination Date on the Moneyline
Telerate Page 3750, the rate calculated by the Company of at least two offered
quotations obtained by the Company after requesting the principal London
offices of each of four major reference banks (which shall not include
Affiliates of the Company) in the London interbank market to provide the
Company with its offered quotation for deposits in United States dollars for
the period of three months, commencing on the related Yield Reset Date, to
prime banks in the London interbank market at approximately 11.00 A.M., London
time, on that Yield Determination Date and in a principal amount that is
representative for a single transaction in United States dollars in that market
at that time, or






5






 





               (c) if fewer than two offered quotations referred to in clause (b) are
provided as requested, the rate calculated by the Company as the arithmetic
mean of the rates quoted at approximately 11:00 A.M., New York time, on the
particular Yield Determination Date by three
major banks (which shall not include Affiliates of the Company) in The
City of New York selected by the Company for loans in United States dollars to
leading European banks for a period of three months and in a principal amount
that is representative for a single transaction in United States dollars in
that market at that time, or



               (d) if the banks so selected by the Company are not quoting as mentioned
in clause (c), LIBOR in effect on the particular Yield Determination Date.



         “TIA” means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, and as in effect on the date of this Indenture.



         “Time of Determination” means the time and date of the determination of
stockholders entitled to receive rights, warrants, options or a distribution,
in each case, to which Sections 11.07 or 11.08 apply.



         “Trading Day” means a day during which trading in securities generally
occurs on The New York Stock Exchange or, if the Common Stock is not listed on
The New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation system or, if
the Common Stock is not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
Common Stock is then traded.



         “Trust Officer” means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.



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



         “Voting Stock” means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation provided that, for the
purposes hereof, stock which carries only the right to vote conditionally on
the happening of an event shall not be considered voting stock whether or not
such event shall have happened.



         “Yield” from the Issue Date through and including June 12, 2002 will equal
0% per annum and will be reset quarterly effective on each Yield Reset Date to
3-month LIBOR minus 2.0% per annum. Regardless of the level of 3-month LIBOR,
the Yield shall never be less than zero and, after March 13, 2007, the Yield
shall not exceed 5.5% per annum. The Yield shall be calculated using the
actual number of days elapsed between the Yield Reset Dates divided by 360.






6






 





         “Yield Determination Date” means the second London Banking Day preceding
the related Yield Reset Date.



         “Yield Reset Date” means each March 13, June 13, September 13 and December
13 of each year, commencing on June 13, 2002; provided, however, that if any
Yield Reset Date would otherwise be a day that is not a Business Day, that Yield Reset Date will
be postponed to the next succeeding Business Day, except if that Business Day
falls in the next succeeding calendar month, that Yield Reset Date will be the
immediately preceding Business Day.



         Section 1.02. Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Agent Members”
	 	 	2.11	 
	“Associate”
	 	 	3.09	(a)
	“Bankruptcy Law”
	 	 	6.01	 
	“Bid Solicitation Agent”
	 	 	2.03	 
	“Change in Control”
	 	 	3.09	(a)
	“Change in Control Purchase Date”
	 	 	3.09	(a)
	“Change in Control Purchase Notice”
	 	 	3.09	(c)
	“Change in Control Purchase Price”
	 	 	3.09	(a)
	“Company Notice”
	 	 	3.08	(e)
	“Company Notice Date”
	 	 	3.08	(c)
	“Common Stock Record Date”
	 	 	10.01	 
	“Contingent Interest Payment Date”
	 	 	10.02	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	11.02	 
	“Conversion Rate”
	 	 	11.01	 
	“Defaulted Interest”
	 	 	12.02	 
	“DTC”
	 	 	2.03	 
	“Event of Default”
	 	 	6.01	 
	“Exchange Act”
	 	 	3.08	(d)
	“Ex-Dividend Measurement Period”
	 	 	11.08	 
	“Ex-Dividend Time”
	 	 	11.01	 
	“Extraordinary Cash Dividend”
	 	 	11.08	 
	“LYONs Market Price”
	 	 	10.01	 
	“Measurement Period”
	 	 	10.01	 
	“Notice of Default”
	 	 	6.01	 
	“Paying Agent”
	 	 	2.03	 
	“Purchase Notice”
	 	 	3.08	(a)
	“Registrar”
	 	 	2.03	 
	“Regular Record Date”
	 	 	12.01	 
	“Relevant Value”
	 	 	10.01	 
	“Securities Act”
	 	 	3.08	(d)
	“Semiannual Period”
	 	 	10.01	 
	“Time of Determination”
	 	 	11.01	 










7






 





         Whenever this Indenture refers to a provision of the TIA, such 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:



         “Commission” means the SEC.



         “indenture securities” means the Securities.



         “indenture security holder” means a Securityholder.



         “indenture to be qualified” means this Indenture.



         “indenture trustee” or “institutional trustee” means the
Trustee.



         “obligor” on the indenture securities means the Company.



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



         Section 1.03. Rules of Construction. Unless the context otherwise
requires:




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




          (b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time in The United States of
America;




          (c) “or” is not exclusive;




          (d) “including” means including, without limitation; and




          (e) words in the singular include the plural, and words in the
plural include the singular.



         Section 1.04. Acts of Holders.




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





8






 





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




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




          (c) The ownership of Securities shall be proved by the register for
the Securities or by a certificate of the Registrar (as defined below).




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




          (e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a resolution of the
Board of Directors, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notices, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the outstanding
Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the
record date.



Article II




THE SECURITIES




         Section 2.01. Form and Dating. The Securities and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit A,
which is a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange






9






 






rule or usage (provided that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company and the Trustee). Each Security shall be dated the
date of its authentication.



         The Securities shall be issued, initially in the form of one or more
global Securities, which shall be deposited with DTC or the nominee thereof,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.



         Each global Security shall represent such of the outstanding Securities as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of
outstanding Securities represented thereby may from time to time be
reduced to reflect conversions, repurchases and redemptions. Any endorsement
of a global Security to reflect the amount of any decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.11.



         Section 2.02. Execution and Authentication. The Securities shall
be executed by the Company by either of its Chairman or Vice Chairman of the
Board, its President, its Treasurer or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or
facsimile.



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



         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
duly executed by the Trustee by manual signature of an authorized officer, 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 shall authenticate and deliver Securities for original issue
in an aggregate Original Principal Amount of $2,300,000,000 upon a Company
Order without any further action by the Company. The aggregate Original
Principal Amount of Securities outstanding at any time may not exceed the
amount set forth in the foregoing sentence, subject to the proviso set forth
therein, except as provided in Section 2.07.



         Section 2.03. Registrar, Paying Agent, Conversion Agent and
Depositary. The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
(“Registrar”), an office or agency where Securities may be presented for
purchase or payment (“Paying Agent”) and an office or agency where
Securities may be presented for conversion (“Conversion Agent”). The
Company shall also appoint a bid solicitation agent (the “Bid Solicitation
Agent”) to act pursuant to paragraph 5 of the Security. None of the
Company or any Subsidiary or Affiliate of either may act as Bid Solicitation
Agent. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The






10






 






Company may have one or more co-registrars, one or
more additional paying agents and one or more additional conversion agents.
The term Paying Agent includes any additional paying agent. The term
Conversion Agent includes any additional conversion agent.



         The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar other than the
Trustee. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee and the Holders of
the name and address of any such agent and of any change in the office or
agency referred to in Section 4.05. If the Company fails to maintain a
Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and
shall be entitled to appropriate
compensation therefor pursuant to Section 7.06. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.



         The Company initially appoints the Trustee as Registrar, Conversion Agent
and Paying Agent in connection with the Securities.



         The Company initially appoints The Depositary Trust Company (“DTC”)
to act as Depositary with respect to the global Securities.



         Section 2.04. Paying Agent To Hold Money and Securities in Trust.
In accordance with Section 4.05 and except as otherwise provided herein, prior
to or on each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money or, if permitted by the
terms hereof, securities sufficient to make such payments when so becoming due.
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
Securityholders or the Trustee all money and securities 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 default by the Company in making any
payments in respect of the Securities, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and securities
so held in trust. If the Company, a Subsidiary or an Affiliate of either of
them acts as Paying Agent, it shall segregate the money and securities held by
it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money and securities held by it to
the Trustee and to account for any money and securities disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money and
securities.



         Section 2.05. Securityholder 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee
(i) at least semiannually on May 15 and November 15 a list of the names and
addresses of Securityholders dated within 15 days of the date on which the list
is furnished and (ii) 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 Securityholders.



         Section 2.06. Transfer and Exchange. Upon surrender for
registration of transfer of any Security, together with a written instrument of
transfer reasonably satisfactory to the Trustee






11






 






duly executed by the Securityholder or such Securityholder’s attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.03 or at the office or agency referred to in Section
4.05, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denomination or denominations, of a like
aggregate Contingent Principal Amount. The Company shall not charge a service
charge for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges that may be imposed in connection with the transfer or
exchange of the Securities from the Securityholder requesting such transfer or
exchange (other than any exchange of a temporary Security for a definitive
Security not involving any change in ownership).



         At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Contingent Principal Amount, upon surrender of the Securities to be exchanged,
together with a written instrument of transfer reasonably satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder’s attorney
duly authorized in writing, at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.



         The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed), (b) any Securities in respect of which a Purchase Notice
or a Change in Control Purchase Notice has been given and not withdrawn by the
Holder thereof in accordance with the terms of this Indenture (except, in the
case of Securities to be purchased in part, the portion thereof not to be
purchased) or (c) any Securities for a period of 15 days before the mailing of
a notice of redemption.



         Notwithstanding any provision to the contrary herein, so long as a global
Security remains outstanding and is held by or on behalf of the Depositary,
transfers of a global Security, in whole or in part, shall be made only in
accordance with Section 2.11 and this Section 2.06. Transfers of a global
Security shall be limited to transfers of such global Security in whole, or in
part, to nominees of the Depositary or to a successor of the Depositary or such
successor’s nominee.



         Section 2.07. Replacement Securities. If (a) any mutilated
Security is surrendered to the Company or the Trustee, or (b) the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and Contingent Principal Amount, bearing a number not contemporaneously
outstanding.






12






 





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



         Upon the issuance of any new Securities 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) in connection
therewith.



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



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



         Section 2.08. Outstanding Securities; Determinations of Holders’
Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, mutilated, destroyed, lost or stolen Securities for
which the Trustee has authenticated and delivered a new Security in lieu
therefor pursuant to Section 2.07, those paid pursuant to Section 2.07, and
those described in this Section 2.08 as not outstanding. A Security does not
cease to be outstanding because the Company or an Affiliate thereof holds the
Security; provided, however, that in determining whether the
Holders of the requisite Principal Amount of Securities have given or concurred
in any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities beneficially owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor,
other than Securities purchased in connection with the distribution or trading
thereof, shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).



         If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof reasonably satisfactory to it
that the replaced Security is held by a bona fide purchaser.



         If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date, or on the
Business Day following a Change in Control Purchase Date, or at Stated
Maturity, money or, if permitted by the terms hereof, securities sufficient to
pay the Securities payable on that date, then on and after that date such






13






 






Securities shall cease to be outstanding and the Contingent Principal Amount of
the Securities, will cease to increase, and contingent interest (if any) on
such Securities shall cease to accrue and all other rights of the Holder shall
terminate (other than the right to receive the applicable Redemption Price,
Purchase Price or Change in Control Purchase Price, as the case may be, upon
delivery of the Security in accordance with the terms of this Indenture);
provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.



         If a Security is converted in accordance with Article 11, then from and
after the Conversion Date such Security shall cease to be outstanding and the
Contingent Principal Amount of the Securities, will cease to increase, and
contingent interest (if any) shall cease to accrue on such Security.



         Section 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.



         If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03
or 4.05, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like Contingent Principal
Amount of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.



         Section 2.10. Cancellation. All Securities surrendered for
payment, redemption or purchase by the Company pursuant to Article 3,
conversion pursuant to Article 11, registration of transfer or exchange shall,
if surrendered to any person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in accordance with its standard procedures
unless the Company directs by Company Order that the Trustee deliver cancelled
Securities to the Company.






14






 





         Section 2.11. Global Securities.




          (a) Transfer and Exchange of Global Securities. A Global
Security deposited with the Depositary pursuant to Section 2.01 shall be
transferred to the beneficial owners thereof only if such transfer
complies with Section 2.06 and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as depositary for such Global
Security or if at any time ceases to be a “clearing agency” registered
under the Exchange Act and a successor depositary is not appointed by the
Company within 60 days after such notice, or (ii) an Event of Default has
occurred and is continuing with respect to the Securities or (iii) the
Company executes and delivers to the Trustee a Company Order to the
effect that the global Securities shall be exchangeable. In any case,
the Company will promptly make available to the Trustee a reasonable
supply of Securities in definitive, fully registered form without
interest coupons in accordance with the provisions of this Article 2.




          Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.11 shall be surrendered by the
Depositary to the Trustee located in the
Borough of Manhattan, The City of New York, to be so transferred, in
definitive form, in whole or from time to time in part, in denominations
of $1,000 Original Principal Amount and integral multiples of $1,000
Original Principal Amount, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate Original Principal Amount of
Securities of authorized denominations. Any portion of a Global Security
transferred pursuant to this Section 2.11 shall be executed,
authenticated and delivered only in the denominations specified in the
form of Security attached as Exhibit A hereto and registered in such
names as the Depositary shall direct.




          Members of, or participants in, the Depositary (“Agent
Members”) shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary or under the
Global Security, and the Depositary 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 herein shall (A) prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or (B) impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of
a holder of any Security.




          Subject to the provisions of this Section 2.11(a), the Holder may
grant proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the
Securities.




          (b) Transfer and Exchange of Securities. Subject to the
provisions of Section 2.11(a), when Securities are presented by a Holder
to the Registrar with a request:






15






 






          (1) to register the transfer of the Securities; or




          (2) to exchange such Securities for an equal Original Principal
Amount of Securities of other authorized denominations,



the Registrar shall register the transfer or make the exchange as requested;
provided, however, that the Securities presented or surrendered
for register of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by such Holder’s attorney, duly authorized in
writing.



         Section 2.12. CUSIP Numbers. The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP
numbers.



Article III




REDEMPTION AND PURCHASES




         Section 3.01. Right to Redeem; Notices to Trustee.



         The Company, at its option, may redeem the Securities in accordance with
the provisions of paragraphs 6 and 8 of the Securities. If the Company elects
to redeem Securities pursuant to paragraph 6 of the Securities, it shall notify
the Trustee in writing of the Redemption Date, the Original Principal Amount of
Securities to be redeemed and the Redemption Price.



         The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order at least 60 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee). If fewer than
all the Securities are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.



         Section 3.02. Selection of Securities to Be Redeemed.



         If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata based on ownership thereof or by
lot or by any other method the Trustee considers fair and appropriate (so long
as such method is not prohibited by the rules of any stock exchange on which
the Securities are then listed). The Trustee shall make the selection at least
30 days but not more than 60 days before the Redemption Date from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the Original Principal Amount of Securities that have
denominations larger than $1,000.






16






 





         Securities and any portions thereof that the Trustee selects shall be in
Original Principal Amounts of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee shall
notify the Company promptly of the Securities or portions of Securities to be
redeemed.



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



         Nothing in this Section 3.02 shall affect the right of any Holder to
convert any Security pursuant to Article 11 before the termination of the
conversion right with respect thereto.



         Section 3.03. Notice of Redemption.



         At least 30 days but not more than 60 days before a Redemption Date, the
Company shall give notice of redemption to each Holder of Securities to be
redeemed in the manner provided in Section 13.02.



         The notice shall identify the Securities to be redeemed and shall state:




          (a) the Redemption Date;




          (b) the Redemption Price;




          (c) the Conversion Rate;




          (d) the name and address of the Paying Agent and Conversion Agent
and of the office or agency referred to in Section 4.05;




          (e) that Securities called for redemption may be converted at any
time before the close of business on the second Business Day immediately
preceding the Redemption Date, even if not otherwise convertible at such
time;




          (f) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;




          (g) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to
collect the Redemption Price;




          (h) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers and Original Principal Amounts of the particular
Securities to be redeemed;






17






 






          (i) that, unless the Company defaults in making payment of such
Redemption Price on Securities called for redemption, the Contingent
Principal Amount will cease to increase and contingent interest (if any)
will cease to accrue on and after the Redemption Date; and




          (j) the CUSIP number of the Securities.



         At the Company’s request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense, provided that the
Company makes such request at least 15 days (unless a shorter period shall be
acceptable to the Trustee) prior to the date such notice of redemption must be
mailed.



         Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice.



         Section 3.05. Deposit of Redemption Price. Prior to 10:00 a.m.
(New York City time), on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary of the Company or an
Affiliate of any of them is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the Redemption Price of all Securities to be
redeemed on that date other than Securities or portions of Securities called
for redemption which on or prior thereto have been delivered by the Company to
the Trustee for cancellation or have been converted. The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Securities pursuant to Article 11. If such
money is then held by the Company or a Subsidiary or an Affiliate of the
Company in trust and is not required for such purpose it shall be discharged
from such trust.



         Section 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Original Principal Amount to the unredeemed portion of
the Security surrendered.



         Section 3.07. [Reserved].



         Section 3.08. Purchase of Securities at the Option of the Holder.
(a) General. If a Holder exercises its right to require the Company to
repurchase the Securities, the Securities shall be purchased by the Company on
the applicable Purchase Date, at a purchase price equal to the Contingent
Principal Amount of the Securities on the applicable Purchase Date, at the
option of the Holder thereof, upon:




          (1) delivery to the Paying Agent, by the Holder, of a written notice
of purchase (a “Purchase Notice”) at any time from the opening of
business on the date that is at least 20 Business Days prior to a
Purchase Date until the close of business on the Business Day immediately
preceding such Purchase Date stating:






18






 






          (A) the certificate number of the Security which the Holder
will deliver to be purchased,




          (B) the portion of the Original Principal Amount of the
Security which the Holder will deliver to be purchased, which
portion must be an Original Principal Amount of $1,000 or an
integral multiple thereof,




          (C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in the
Securities, and




          (D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such Purchase
Date, in whole or in part, in shares of Common Stock but such
portion of the Purchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions to payment of
the Purchase Price (or a portion thereof) in Common Stock is not
satisfied prior to the close of business on such Purchase Date, as
set forth in Section 3.08(d), whether such Holder elects (i) to
withdraw such Purchase Notice as to some or all of the Securities
to which such Purchase Notice relates (stating the Original
Principal Amount and certificate numbers of the Securities as to
which such withdrawal shall relate), or (ii) to receive cash
in respect of the entire Purchase Price for all Securities (or
portions thereof) to which such Purchase Notice relates; and




          (2) delivery of such Security to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to
this Section 3.08 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related
Purchase Notice, as determined by the Company.



         If a Holder, in such Holder’s Purchase Notice and in any written notice of
withdrawal delivered by such Holder pursuant to the terms of Section 3.10,
fails to indicate such Holder’s choice with respect to the election set forth
in clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have
elected to receive cash in respect of the Purchase Price for all Securities
subject to such Purchase Notice in the circumstances set forth in such clause
(D).



         The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Original Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.



         Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder as promptly as practicable following the later of the
Purchase Date and the time of delivery of the Security.






19






 





         Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or the office or agency referred to in Section 4.05 the
Purchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw such Purchase Notice at any time prior to the close of business on the
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.10.



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




          (b) Company’s Right to Elect Manner of Payment of Purchase
Price. The Securities to be purchased pursuant to Section 3.08(a)
may be paid for, at the election of the Company, in cash or Common Stock,
or in any combination of cash and Common Stock, subject to the conditions
set forth in Sections 3.08(c) and (d). The Company shall designate, in
the Company Notice delivered pursuant to Section 3.08(e), whether the
Company will purchase the Securities for cash or Common Stock, or, if a
combination thereof, the percentages of the Purchase Price of Securities
in respect of which it will pay in cash or Common Stock; provided
that the Company will pay cash for fractional interests in Common Stock.
For purposes of determining the existence of potential fractional
interests, all Securities subject to purchase by the Company held by a
Holder shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose Securities are purchased pursuant to
this Section 3.08 shall receive the same percentage of cash or Common
Stock in payment of the Purchase Price for such Securities, except (i) as
provided in Section 3.08(d) with regard to the payment of cash in lieu of
fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Securities of a Holder or Holders for Common
Stock because any of the conditions specified in Section 3.08(d) have not
been satisfied, the Company may purchase the Securities of such Holder or
Holders for cash. The Company may not change its election with respect
to the consideration (or components or percentages of components thereof)
to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 3.08(b) or pursuant to
Section 3.08(d) in the event of a failure to satisfy, prior to the close
of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Common Stock.



         At least three Business Days before the Company Notice Date, the Company
shall deliver an Officers’ Certificate to the Trustee specifying:




          (i) the manner of payment selected by the Company,




          (ii) the information required by Section 3.08(e),




          (iii) if the Company elects to pay the Purchase Price,
or a specified percentage thereof, in Common Stock, that the
conditions to such manner of payment set forth in Section
3.08(d) have been or will be complied with, and






20






 






          (iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.08(e).




          (c) Purchase with Cash. On each Purchase Date, at the option
of the Company, the Purchase Price of Securities in respect of which a
Purchase Notice pursuant to Section 3.08(a) has been given, or a
specified percentage thereof, may be paid by the Company with cash equal
to the aggregate Purchase Price of such Securities.




          (d) Payment by Issuance of Common Stock. On each Purchase
Date, at the option of the Company, the Purchase Price of Securities in
respect of which a Purchase Notice pursuant to Section 3.08(a) has been
given, or a specified percentage thereof, may be paid by the Company by
the issuance of a number of shares of Common Stock equal to the quotient
obtained by dividing (i) the amount of cash to which the Securityholders
would have been entitled had the Company elected to pay all or such
specified percentage, as the case may be, of the Purchase Price of such
Securities in cash by (ii) the Market Price of a share of Common Stock,
subject to the next succeeding paragraph.



         The Company will not issue a fractional share of Common Stock in payment
of the Purchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a fraction
of a share shall be determined by multiplying the Market Price by such fraction
and rounding the product to the nearest whole cent. It is
understood that if a Holder elects to have more than one Security
purchased, the number of shares of Common Stock shall be based on the aggregate
amount of Securities to be purchased.



         Upon a payment by Common Stock pursuant to the terms hereof, the Original
Principal Amount and increases in the Contingent Principal Amount and accrued
Tax Original Issue Discount attributable to the period from the Issue Date to
the Purchase Date with respect to the purchased Security shall not be
cancelled, extinguished or forfeited but rather shall be deemed paid in full to
the Holder through the delivery of the Common Stock in exchange for the
Security being purchased pursuant to the terms hereof, and the fair market
value of such Common Stock (together with any cash payments in lieu of
fractional shares of Common Stock) shall be treated as issued, to the extent
thereof, first in exchange for increases in the Contingent Principal Amount and
Tax Original Issue Discount accrued through the Purchase Date, and the balance,
if any, of the fair market value of such shares of Common Stock shall be
treated as issued in exchange for the Issue Price of the Security being
purchased pursuant to the provisions hereof. If the Company elects to purchase
the Securities by the issuance of shares of Common Stock, the Company Notice,
as provided in Section 3.08(e), shall be sent to the Holders (and to beneficial
owners as required by applicable law) not later than the Company Notice Date.



         The Company’s right to exercise its election to purchase the Securities
pursuant to Section 3.08 through the issuance of shares of Common Stock shall
be conditioned upon:




          (1) the Company’s not having given a Company Notice stating its
election to pay entirely in cash for the Securities and its giving of
timely Company Notice of election to purchase all or a specified
percentage of the Securities with Common Stock as provided herein;






21






 






          (2) the shares of Common Stock having been admitted for listing or
admitted for listing subject to notice of issuance on the principal
United States securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a national or
regional securities exchange, admitted for quotation on the National
Association of Securities Dealers Automated Quotation System;




          (3) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act of
1933, as amended (the “Securities Act”), and the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), in each case, if
required;




          (4) any necessary qualification or registration of the Common Stock
under applicable state securities laws or the availability of an
exemption from such qualification and registration; and




          (5) the receipt by the Trustee of an Officers’ Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Common Stock are in conformity with this Indenture and (B) the shares of
Common Stock to be issued by the Company in payment of the Purchase Price
in respect of Securities have been duly authorized and, when issued and
delivered pursuant to the terms of this Indenture in payment of the
Purchase Price in respect of the Securities, will be validly issued,
fully paid and nonassessable and shall be free of any preemptive rights
and any lien or adverse
claim (provided that such Opinion of Counsel may state that, insofar
as it relates to the absence of such preemptive rights, liens and adverse
claims, it is given upon the best knowledge of such counsel), and, in the
case of such Officers’ Certificate, stating that conditions (1), (2), (3)
and (4) above and the condition set forth in the second succeeding
sentence have been satisfied and, in the case of such Opinion of Counsel,
stating that conditions (2), (3) and (4) above have been satisfied.



         Such Officers’ Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Original Principal Amount of
Securities and the Sale Price of a share of Common Stock on each Trading Day
during the period for which the Market Price is calculated. The Company may
pay the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation or by other appropriate means. If the
foregoing conditions are not satisfied with respect to a Holder or Holders
prior to the close of business on the Purchase Date and the Company has elected
to purchase the Securities pursuant to this Section 3.08 through the issuance
of shares of Common Stock, the Company shall pay the entire Purchase Price of
the Securities of such Holder or Holders in cash.




          (e) Notice of Election. The Company’s notice of election to
purchase with cash or Common Stock or any combination thereof shall be
sent to the Holders (and to beneficial owners as required by applicable
law) in the manner provided in Section 13.02 (the “Company
Notice”). The Company Notice shall be sent to the Holders (and to
beneficial owners as required by applicable law) not less than 20 Business Days prior to





22






 






the applicable Purchase Date (the “Company
Notice Date”). Such Company Notice shall state the manner of payment
elected and shall contain the following information:



         In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:




          (1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date equal
to such specified percentage of the Purchase Price of the Securities held
by such Holder (except any cash amount to be paid in lieu of fractional shares);




          (2) set forth the method of calculating the Market Price of the
Common Stock; and




          (3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market risk
with respect to the value of the Common Stock to be received from the
date such Market Price is determined to the Purchase Date.



         In any case, each Company Notice shall include a form of Purchase Notice
to be completed by a Securityholder that wishes to exercise its option to have
the Company repurchase the Securities and shall state:




          (i) the Purchase Price, the Conversion Rate and, to the
extent known at the time of such notice, the amount of
contingent interest, if any,
that will be accrued and payable with respect to the
Securities as of the Purchase Date;




          (ii) whether the Company will pay the Purchase Price in
cash or in Common Stock or any combination thereof,
specifying the percentage of each;




          (iii) the name and address of the Paying Agent and the
Conversion Agent and of the office or agency referred to in
Section 4.05;




          (iv) that Securities as to which a Purchase Notice has
been given may be converted pursuant to Article 11 hereof
only if any applicable Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;




          (v) that Securities must be surrendered to the Paying
Agent or to the office or agency referred to in Section 4.05
to collect payment of the Purchase Price;




          (vi) that the Purchase Price for any Security as to
which a Purchase Notice has been given and not withdrawn will
be paid as





23






 





promptly as practicable following the later of the
Purchase Date and the time of surrender of such Security as
described in (v);




          (vii) the procedures the Holder must follow to exercise
rights under Section 3.08 and a brief description of those
rights;




          (viii) briefly, the conversion rights of the Securities
and that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 9 of the Securities;




          (ix) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal
pursuant to the terms of Section 3.08(a)(1)(D) or Section
3.10);




          (x) that, unless the Company defaults in making payment
of such Purchase Price on Securities surrendered for
purchase, the Contingent Principal Amount will cease to
increase and contingent interest, if any, will cease to
accrue on and after the Purchase Date; and




          (xi) the CUSIP number of the Securities.



         At the Company’s request and upon being provided with a copy of such
Company Notice, the Trustee shall give such Company Notice in the Company’s
name and at the Company’s expense, provided that the Company makes such request
at least 15 days (unless a shorter period shall be acceptable to the Trustee)
prior to the date such Company Notice must be mailed; and provided, further,
that, in all cases, the text of such Company Notice shall be prepared by the
Company.



         Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 Original Principal Amount of Securities, the Company
will issue a press release and publish such determination on the Company’s web
site or, at the Company’s option, otherwise publicly disclose such information.




          (f) Covenants of the Company. All shares of Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any
lien or adverse claim, and the Common Stock will be entitled to the
benefits of the Amended and Restated Rights Agreement adopted December 2,
1997 equally with other shares of Common Stock.




          The Company shall use its reasonable efforts to list or cause to
have quoted any shares of Common Stock to be issued to purchase
Securities on the principal United States securities exchange or
over-the-counter or other domestic market on which any other shares of
the Common Stock are then listed or quoted. The Company will promptly
inform the Trustee in writing of any such listing.






24






 






          (g) Procedure upon Purchase. On or before the Purchase Date,
the Company shall deposit cash (in respect of a cash purchase under
Section 3.08(c) or for fractional interests, as applicable) or shares of
Common Stock, or a combination thereof, as applicable, at the time and in
the manner as provided in Section 3.11, sufficient to pay the aggregate
Purchase Price of all Securities to be purchased pursuant to this Section
3.08. As soon as practicable after the Purchase Date, the Company shall
deliver to each Holder entitled to receive Common Stock through the
Paying Agent, a certificate for the number of full shares of Common Stock
issuable in payment of the Purchase Price and cash in lieu of any
fractional interests. The person in whose name the certificate for
Common Stock is registered shall be treated as a holder of record of shares of Common Stock on the Business Day following the Purchase Date.
Subject to Section 3.08(d), no payment or adjustment will be made for
dividends on the Common Stock the record date for which occurred on or
prior to the Purchase Date.




          (h) Taxes. If a Holder of a Security is paid in Common
Stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of shares of Common Stock. However, the
Holder shall pay any such tax which is due because the Holder requests
the shares of Common Stock to be issued in a name other than the Holder’s
name. The Paying Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the
Holder’s name until the Paying Agent receives a sum sufficient to pay any
tax which will be due because the shares of Common Stock are to be issued
in a name other than the Holder’s name. Nothing herein shall preclude
the Company from withholding or directing the withholding of any tax
required by law or regulations.



         Section 3.09. Purchase of Securities at Option of the Holder upon
Change in Control.




          (a) If on or prior to March 13, 2007 there shall have occurred a
Change in Control, Securities shall be purchased by the Company, at the
option of the Holder thereof, at a purchase price specified in paragraph
7 of the Securities (the “Change in Control Purchase Price”), as of the
date that is no later than 35 Business Days after the occurrence of the
Change in Control (the “Change in Control Purchase Date”), subject to
satisfaction by or on behalf of the Holder of the requirements set forth
in Section 3.09(c).



         A “Change in Control” shall be deemed to have occurred at such time as
either of the following events shall occur:




               (1) any person, including any Affiliate or Associate of the Company,
other than the Company, its Subsidiaries, or their employee benefit
plans, files a Schedule 13D or Schedule TO (or any successor schedule,
form or report under the Exchange Act) disclosing that such person has
become the beneficial owner of 50% or more of the aggregate voting power
of the Common Stock and other capital stock with equivalent voting
rights, or other capital stock into which the Common Stock is
reclassified or changed, provided, however, that a person
shall not be deemed a beneficial owner of, or to own beneficially, (A)
any securities tendered pursuant to a tender or exchange offer





25






 





made by or on behalf of such person or any of such person’s Affiliates or Associates
until such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership (1) arises
solely as a result of a revocable proxy delivered in response to a proxy
or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act, and (2) is not also then reportable
on Schedule 13D (or any successor schedule) under the Exchange Act; or




               (2) there shall be consummated any share exchange, consolidation or
merger of the Company pursuant to which the Common Stock would be
converted into cash, securities or other property in which the holders of
the Common Stock and other capital stock with equivalent voting rights
immediately prior to such share exchange, consolidation or merger, have,
directly or indirectly, less than a majority of the total voting power in
the aggregate of all classes of capital stock of the continuing and
surviving corporation immediately after such share exchange,
consolidation or merger of the Company.



Notwithstanding the foregoing provisions of this Section 3.09, a Change in
Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary, or any person holding Common Stock for
or pursuant to the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or Schedule TO
(or any successor schedule, form or report) under the Exchange Act disclosing
beneficial ownership by it of shares of Common Stock, whether in excess of 50%
or otherwise.



         “Associate” shall have the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.




          (b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial
owners as required by applicable law). The notice shall include a form
of Change in Control Purchase Notice to be completed by the
Securityholder and shall state:




               (1) briefly, the events causing a Change in Control and the date of
such Change in Control;




               (2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.09 must be given;




               (3) the Change in Control Purchase Date;




               (4) the Change in Control Purchase Price;




               (5) the name and address of the Paying Agent and the Conversion
Agent and of the office or agency referred to in Section 4.05;




               (6) the Conversion Rate and any adjustments thereto;






26






 






               (7) that Securities as to which a Change in Control Purchase Notice
is given by the Holder may be converted, if otherwise convertible, only
if the Change in Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;




               (8) that Securities must be surrendered to the Paying Agent or the
office or agency referred to in Section 4.05 to collect payment of the
Change in Control Purchase Price;




               (9) that the Change in Control Purchase Price for any Security as to
which a Change in Control Purchase Notice has been duly given and not
withdrawn will be paid as promptly as practicable following the later of
the Change in Control Purchase Date and the time of surrender of such
Security as described in clause (8), above;




               (10) the procedures the Holder must follow to exercise rights under
this Section 3.09 and a brief description of those rights;




               (11) briefly, the conversion rights of the Securities (including
whether the Securities are then currently convertible);




               (12) the procedures for withdrawing a Change in Control Purchase
Notice;




               (13) that, unless the Company defaults in making payment of such
Change in Control Purchase Price on Securities surrendered for purchase,
the Contingent Principal Amount will cease to increase and contingent
interest, if any, will cease to accrue on and after the Change in Control
Purchase Date; and




               (14) the CUSIP number of the Securities.




          (c) A Holder may exercise its rights specified in Section 3.09(a)
upon delivery of a written notice of purchase (a “Change in Control
Purchase Notice”) to the Paying Agent or to the office or agency referred
to in Section 4.05 at any time prior to the close of business on the
Change in Control Purchase Date, stating:




               (1) the certificate number of the Security which the Holder will
deliver to be purchased;




               (2) the portion of the Original Principal Amount of the Securities
which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and




               (3) that such Security shall be purchased pursuant to the terms and
conditions specified in the Securities.



         The delivery of such Security to the Paying Agent prior to, on or after
the Change in Control Purchase Date (together with all necessary endorsements)
at the offices of the Paying






27






 






Agent or to the office or agency referred to in
Section 4.05 shall be a condition to the receipt by the Holder of the Change in
Control Purchase Price therefor; provided, however, that such
Change in Control Purchase Price shall be so paid pursuant to this Section 3.09
only if the Security so delivered to the Paying Agent or such office or agency
shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice and such Change in Control Purchase
Notice shall not be validly withdrawn by the Holder.



         The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Original Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.



         Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder as promptly as practicable following the later of the
Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent or to the office or agency referred to in Section 4.05 in
accordance with this Section 3.09.



         Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or to the office or agency referred to in Section 4.05 the
Change in Control Purchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Purchase Notice at any time
prior to the close of business on the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent or to the office
or agency referred to in Section 4.05 in accordance with Section 3.10.



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



         Section 3.10. Effect of Purchase Notice or Change in Control Purchase
Notice. Upon receipt by the Paying Agent of the Purchase Notice or
Change in Control Purchase Notice specified in Section 3.08(a) or Section
3.09(c), as applicable, the Holder of the Security in respect of which such
Purchase Notice or Change in Control Purchase Notice, as the case may be, was
given shall (unless such Purchase Notice or Change in Control Purchase Notice
is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price or Change in Control Purchase
Price, as the case may be, with respect to such Security to the Purchase Date
or Change in Control Purchase Date, as the case may be. Such Purchase Price or
Change in Control Purchase Price shall be paid to such Holder, subject to
receipts of funds and/or Common Stock by the Paying Agent, as promptly as
practicable following the later of (x) the Purchase Date or the Change in
Control Purchase Date, as the case may be, with respect to such Security
(provided the conditions in Section 3.08(a) or Section 3.09(c), as applicable,
have been satisfied) and (y) the time of delivery of such Security to the
Paying Agent by the Holder thereof in the manner required by Section 3.08(a) or
Section 3.09(c), as applicable. Securities in respect of which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been given
by the Holder thereof may not be converted pursuant to Article 11 hereof on or
after the date of the delivery of such Purchase Notice or Change in Control






28






 






Purchase Notice, as the case may be, unless such Purchase Notice or Change in
Control Purchase Notice, as the case may be, has first been validly withdrawn
as specified in the following two paragraphs.



         A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent or to the office or agency referred to in
Section 4.05 in accordance with the Purchase Notice or Change in Control
Purchase Notice, as the case may be, at any time prior to the close of business
on the Purchase Date or the Change in Control Purchase Date, as the case may
be, specifying:




               (1) the Original Principal Amount of the Securities with respect to
which such notice of withdrawal is being submitted,




               (2) the certificate number of the Securities in respect of which
such notice of withdrawal is being submitted, and




               (3) the Original Principal Amount, if any, of any such Securities
which remain subject to the original Purchase Notice or Change in Control
Purchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company.



         A written notice of withdrawal of a Purchase Notice may be in the form set
forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.



         There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu of
fractional shares) or 3.09 if there has occurred (prior to, on or after,
as the case may be, the giving, by the Holders of such Securities, of the
required Purchase Notice or Change in Control Purchase Notice, as the case may
be) and is continuing an Event of Default (other than a default in the payment
of the Purchase Price or Change in Control Purchase Price, as the case may be,
with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Securities) in which case, upon such return, the Purchase
Notice or Change in Control Purchase Notice with respect thereto shall be
deemed to have been withdrawn.



         Section 3.11. Deposit of Purchase Price or Change in Control Purchase
Price. Prior to 10:00 a.m. New York City time on the Business Day
following the Purchase Date or the Change in Control Purchase Date, as the case
may be, the Company shall 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
2.04) an amount of money (in immediately available funds if deposited on such
Business Day) or






29






 






Common Stock, if permitted hereunder, sufficient to pay the
aggregate Purchase Price or Change in Control Purchase Price, as the case may
be, of all the Securities or portions thereof which are to be purchased as of
the Purchase Date or Change in Control Purchase Date, as the case may be.
After the Purchase Date or the Change in Control Purchase Date, the Contingent
Principal Amount shall cease to increase, Tax Original Issue Discount, and
contingent interest, if any, shall cease to accrue on such Security, whether or
not such Security is delivered to the Paying Agent.



         Section 3.12. Securities Purchased in Part. Any Security which
is to be purchased only in part shall be surrendered at the office of the
Paying Agent or to the office or agency referred to in Section 4.05 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities, of any authorized denomination as requested by such Holder in
aggregate Original Principal Amount equal to, and in exchange for, the portion
of the Original Principal Amount of the Security so surrendered which is not
purchased.



         Section 3.13. Covenant to Comply With Securities Laws Upon Purchase of
Securities. In connection with any offer to purchase or purchase of
Securities under Section 3.08 or 3.09 hereof (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 (i)
comply with Rule 13e-4 and Rule 14e-1 under the Exchange Act and any other then
applicable tender offer rules, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights
and obligations under Sections 3.08 and 3.09 to be exercised in the time and in
the manner specified in Sections 3.08 and 3.09.



         Section 3.14. Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company any cash or shares of Common Stock
that remain unclaimed as provided in paragraph 14 of the Securities, together
with interest or dividends, if any, thereon (subject to the provisions of
Section 7.01(f)), held by them for the payment of the Purchase Price or Change
in Control Purchase Price, as the case may be; provided, however,
that to the extent that the aggregate amount of cash or shares of Common Stock
deposited by the Company pursuant to Section 3.11 exceeds the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of the
Securities or portions thereof which the Company is obligated to purchase as of
the Purchase Date or Change in Control Purchase Date, as the case may be, then
as promptly as practicable after the Business Day following the Purchase Date
or Change in Control Purchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon (subject to the provisions of Section 7.01(f)).



         Notwithstanding anything in this Indenture to the contrary, all moneys
delivered to the Trustee (in any capacity) for payment to Holders shall remain
uninvested unless otherwise agreed to in writing between the Company and the
Trustee.






30






 





Article IV




COVENANTS




         Section 4.01. Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Original Principal
Amount, Contingent Principal Amount, Tax Original Issue Discount, Redemption
Price, Purchase Price, Change in Control Purchase Price and contingent
interest, if any, shall be considered paid on the applicable date due if on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, cash or securities, if expressly permitted hereunder, sufficient to
pay all such amounts then due.



         The Company shall, to the extent permitted by law, pay interest on overdue
amounts at the per annum rate of interest set forth in paragraph 1 of the
Securities, compounded semi-annually, which interest on overdue amounts (to the
extent payment of such interest shall be legally enforceable) shall accrue from
the date such overdue amounts were originally due and payable.



         Section 4.02. SEC Reports. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual and
quarterly reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act (or any such successor
provisions thereto). The Company also shall comply with the other provisions
of TIA Section 314(a), to the extent such provisions are applicable.



         Section 4.03. Compliance Certificate; Notice of Defaults.




          (a) The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company (beginning with the fiscal
year ending on December 31,
2001) a certificate of the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company stating whether or not, to the knowledge of the signer, the
Company has complied with all conditions and covenants on its part
contained in this Indenture and, if the signer has obtained knowledge of
any default by the Company in the performance, observance or fulfillment
of any such condition or covenant, specifying each such default and the
nature thereof. For the purpose of this Section 4.03, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.




          (b) The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five Business Days
of its becoming aware of such Default or Event of Default.



         Section 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.






31






 





         Section 4.05. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, in such location as
may be required by the rules of any securities exchange or quotation system on
which the Securities may from time to time be listed, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of the Trustee in
The City of New York, which office on the date hereof is located at 450 West
33rd Street, New York, New York 10001, shall be such office or agency for all
of the aforesaid purposes unless the Company shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change of location, of such other office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.



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



         Section 4.06. Calculation of Certain Amounts. (a) The Company
shall file with the Trustee, within 30 days following the end of each calendar
year, a written notice specifying (i) the amount of Tax Original Issue Discount
(including the daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such Tax Original Issue Discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time and (b) the
Company, promptly after each Yield Determination Date, shall file with the
Trustee a written notice specifying the Yield that will be applicable on the
next succeeding Yield Reset Date.



         Section 4.07. Limitation Upon Creation of Liens on Voting Stock of
Certain Subsidiaries.



         The Company will not, and it will not permit any subsidiary at any time
directly or indirectly to, create, assume, incur or permit to exist any
indebtedness for borrowed money secured by a pledge, lien or other encumbrance
(any pledge, lien or other encumbrance being hereinafter in this Section
referred to as a “lien”) on the Voting Stock of any Subsidiary (other than a
Subsidiary which, at the time of incurrence of such secured indebtedness, has a
net worth, as determined in accordance with generally accepted accounting
principles, of less than $3,000,000) without making effective provision whereby
the outstanding securities (and, if the Company so elects, any other
indebtedness ranking on a parity with the Securities), shall be secured equally
and ratably with such secured indebtedness so long as such other indebtedness
shall be so secured; provided, however, that the foregoing
covenant shall not be applicable to liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in






32






 






amount, liens created by or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate proceedings or
which involve claims of less than $1,000,000, or deposits to secure (or in lieu
of) surety, stay, appeal or customs bonds.



         If the Company shall hereafter be required to secure the Securities
equally and ratably with any other indebtedness pursuant to this Section, (i)
the Company will promptly deliver to the Trustee an Officers’ Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that in the opinion of such counsel the foregoing covenant has
been complied with and that any instruments executed by the Company or any
Subsidiary in the performance of the foregoing covenant comply with the
requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture of agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the holders of the Securities so secured.



         Section 4.08. Limitation on Disposition of Voting Stock of, and Merger
and Sale of Assets by, MLPF&S.



         The Company will not:




          (a) sell, transfer or otherwise dispose of any shares of Voting
Stock of MLPF&S or permit MLPF&S to issue, sell, or otherwise dispose of
any shares of its Voting Stock, unless, after giving effect to any such
transaction, MLPF&S remains a Controlled Subsidiary; or




          (b) permit MLPF&S to




               (1) merge or consolidate, unless the surviving company is a
Controlled Subsidiary; or




               (2) convey or transfer its properties and assets substantially as an
entirety to any Person, except to one or more Controlled Subsidiaries.



         Section 4.09. Waiver of Certain Covenants.



         The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 4.07 or 4.08 with respect to the
Securities if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities shall by Act of such
Holders either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.






33






 





Article V




SUCCESSOR CORPORATION




         Section 5.01. When Company May Merge or Transfer Assets. The
Company may consolidate with, or sell, lease or convey all or substantially all
of its properties and assets to, or merge with or into any other Person,
provided that in any such case:




          (a) either the Company shall be the continuing corporation or the
successor Person shall be a Person organized and existing under the laws
of the United States or any State thereof and such successor Person shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of all amounts payable with respect to all the
Securities, according to their terms, and the due and punctual
performance and observance of all of the covenants, conditions and
obligations to be performed by the Company under the Securities and this
Indenture; and




          (b) immediately after giving effect to such merger or consolidation
or such sale, lease or conveyance, and the assumption contemplated above,
the Company or such successor Person shall not be in default in the
performance of any such covenant, condition or obligation.



         In the case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor Person , such successor Person
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 had been named as the Company herein; and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be relieved of any further obligation under this Indenture and
the Securities. Such successor Person thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor Person, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.



         In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.






34






 





         The Trustee, subject to Section 7.01, may receive an Officers’ Certificate
and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption, complies with the
provisions of this Article.



Article VI




DEFAULTS AND REMEDIES




         Section 6.01. Events of Default. An “Event of Default” means any
one of the following events:




          (a) a default in the payment of the Contingent Principal Amount,
Redemption Price, Purchase Price or Change in Control Purchase Price on
any Security when the same becomes due and payable pursuant to the terms
hereof;




          (b) failure of the Company to make any payment of contingent
interest when the same becomes due and payable pursuant to the terms of
Article 10 hereof for a period of 30 days;




          (c) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clauses (a)
or (b) above) upon the receipt of notice of such default from the Trustee
or from Holders of not less than 25% in aggregate Original Principal
Amount of the Securities then outstanding and such failure (or the
failure to obtain a waiver thereof) continues for 60 days after receipt
by the Company of a Notice of Default;




          (d) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:




               (1) commences a voluntary case or proceeding;




               (2) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;




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




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




               (5) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or




               (6) consents to the filing of such petition or the appointment of or
taking possession by a Custodian; or




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






35






 






               (1) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;




               (2) appoints a Custodian of the Company or for any substantial part
of its property; or




               (3) orders the winding up or liquidation of the Company and the
order or decree remains unstayed and in effect for 60 days.



         “Bankruptcy Law” means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors.



         “Custodian” means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.



         Notwithstanding anything herein to the contrary, a Default is not an Event
of Default until the Trustee notifies the Company or the Holders of at least
25% in aggregate Original 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 (b) or clause (c) 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 Company shall deliver to the Trustee, within five (5) days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under clause (b) or clause (c) above, its status and what action the
Company is taking or proposes to take with respect thereto.



         Section 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(d) or (e)) occurs and is
continuing, the Trustee by Notice to the Company or the Holders of at least 25%
in aggregate Original Principal Amount of the Securities at the time
outstanding by notice to the Company and the Trustee, may declare the
Contingent Principal Amount through the date of such declaration, and any
accrued and unpaid contingent interest through the date of such declaration, on
all the Securities to be immediately due and payable. Upon such a declaration,
such Contingent Principal Amount, and such accrued and unpaid contingent
interest, if any, shall be due and payable immediately. If an Event of Default
specified in Section 6.01(d) or (e) occurs and is continuing, the Contingent
Principal Amount, and any accrued and unpaid contingent interest, on all the
Securities to the date of the occurrence of such Event of Default shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Original Principal Amount of the Securities at the time outstanding,
by notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of the Contingent Principal Amount and
any accrued and unpaid contingent interest that have become due solely as a
result of acceleration and if all amounts due to the Trustee under Section 7.06






36






 






have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.



         Section 6.03. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Contingent Principal
Amount on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.



         The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.



         Section 6.04. Waiver of Past Defaults. The Holders of a majority
in aggregate Original Principal Amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except (1)
an Event of Default described in Section 6.01(a), (2) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected or (3) a Default which constitutes a failure to convert
any Security in accordance with the terms of Article 11. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent
or other Default or impair any consequent right. This Section 6.04 shall be in
lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby
expressly excluded from this Indenture, as permitted by the TIA.



         Section 6.05. Control by Majority. The Holders of a majority in
aggregate Original Principal Amount of the Securities at the time outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred
on the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.



         Section 6.06. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:




          (a) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;




          (b) the Holders of at least 25% in aggregate Original Principal
Amount of the Securities at the time outstanding make a written request
to the Trustee to pursue the remedy;






37






 






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




          (d) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or indemnity;
and




          (e) the Holders of a majority in aggregate Original Principal Amount
of the Securities at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.



         A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.



         Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Contingent Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price or contingent interest, if
any, in respect of the Securities held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, and to
convert the Securities in accordance with Article 11, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
such Holder.



         Section 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.06.



         Section 6.09. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or its creditors, the
Trustee (irrespective of whether the Contingent Principal Amount, Redemption
Price, Purchase Price, Change in Control Purchase Price or contingent interest,
if any, in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any such
amount) shall be entitled and empowered, by intervention in such proceeding or
otherwise,




          (a) to file and prove a claim for the whole amount of the
Contingent Principal Amount, Redemption Price, Purchase Price, Change in
Control Purchase Price or contingent interest, if any, 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 or any other amounts due the Trustee under Section
7.06) and of the Holders allowed in such judicial proceeding, and




          (b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;






38






 





and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.06.



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



         Section 6.10. Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:




FIRST: to the Trustee for amounts due under Section 7.06;




SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Contingent Principal Amount, Redemption Price,
Purchase Price, Change in Control Purchase Price or contingent
interest, if any, as the case may be, ratably, without preference
or priority of any kind, according to such amounts due and payable
on the Securities; and




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



         The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.



         Section 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10%
in aggregate Original Principal Amount of the Securities at the time
outstanding. This Section 6.11 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 6.12. Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or other
law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the
Contingent Principal






39






 






Amount, Redemption Price, Purchase Price, Change in
Control Purchase Price or contingent interest, if any, delivering Common Stock
upon a conversion pursuant to Article 11 or paying the cash equivalent thereof,
in respect of Securities, or any interest on such amounts, as contemplated
herein, or 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 VII




TRUSTEE




         Section 7.01. Rights of Trustee.




          (a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person and
shall incur no liability in its reliance thereon. The Trustee need not
investigate any fact or matter stated in the document.




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




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




          (d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.




          (e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any
loss, liability or expense.




          (f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee (acting in any capacity hereunder) shall be under no liability
for interest on any money received by it hereunder.



         All rights and immunities granted to the Trustee under this Indenture
shall include the Trustee acting in any capacity under this Indenture.



         Section 7.02. 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 its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.09 and 7.10.






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         Section 7.03. Trustee’s Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act or in the
Indenture or the Securities (other than its certificate of authentication), or
the determination as to which beneficial owners are entitled to receive any
notices hereunder.



         Section 7.04. Notice of Defaults. The Trustee shall, within 90
days after the occurrence of any Default, mail to all Holders of Securities, as
the names and addresses of such Holders appear on the books of registry of the Company, notice of all
Defaults of which the Trustee shall be aware, unless such Defaults shall have
been cured or waived before the giving of such notice; provided
that, except in the case of a Default described in Section 6.01(a) or
6.01(b), the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee
of directors or Trust Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of Securities.



         Section 7.05. Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such May
15 that complies with TIA Section 313(a), if required by said Section. The
Trustee also shall comply with TIA Section 313(b).



         A copy of each report at the time of its mailing to Securityholders shall
be provided to the Company and shall be submitted to the SEC and each stock
exchange on which the Securities are listed. The Company agrees promptly to
notify the Trustee whenever the Securities become listed on any stock exchange
and of any delisting thereof.



         Section 7.06. Compensation and Indemnity. The Company agrees:




          (a) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder (which
compensation shall not (to the extent permitted by law) be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);




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




          (c) to indemnify each of the Trustee, its officers, directors,
employees and agents, or any predecessor Trustee for, and to hold it
harmless against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based upon, measured or determined by
the income of the Trustee), incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses
of defending itself against any





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claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.



         The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (c)
of this Section 7.06, within a reasonable amount of time after a Trust Officer
of the Trustee becomes aware of such claim or liability. To secure the
Company’s payment obligations in this Section 7.06, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the
Trustee.



         The Company’s payment obligations pursuant to this Section 7.06 shall
survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(d) or (e), the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law. The provisions of this Section shall survive the termination
of this Indenture.



         Section 7.07. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation
shall be effective until a successor Trustee has accepted its appointment
pursuant to this Section 7.07. The Holders of a majority in aggregate Original
Principal Amount of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee
(subject to the consent of the Company, such consent not to be unreasonably
withheld). The Company shall remove the Trustee if:




          (a) the Trustee fails to comply with Section 7.09;




          (b) the Trustee is adjudged bankrupt or insolvent;




          (c) a receiver or other public officer takes charge of the Trustee
or its property; or




          (d) the Trustee otherwise becomes incapable of acting.



         If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint, by resolution of
its Board of Directors, a successor Trustee that meets the requirements of
Section 7.09.



         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 successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided
for in Section 7.06.



         If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate Original Principal Amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.






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         If the Trustee fails to comply with Section 7.09, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.



         Section 7.08. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another Person, the resulting,
surviving or transferee Person without any further act shall be the successor
Trustee.



         Section 7.09. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) shall be deemed incorporated herein.



         Section 7.10. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.



Article VIII




DISCHARGE OF INDENTURE




         Section 8.01. Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits
with the Trustee cash or, if expressly permitted by the terms hereof,
securities sufficient to pay at the Stated Maturity, the Purchase Date, the
Change in Control Purchase or the Redemption Date, the Contingent Principal
Amount, the Purchase Price or contingent interest (if any shall be due and
unpaid), the Change in Control Purchase Price or the Redemption Price, as the
case may be, of all outstanding Securities (other than Securities replaced
pursuant to Section 2.07), and if, in either case, the Company has paid all
other sums payable hereunder by the Company (including, without limitation,
sums payable by delivery of shares of Common Stock pursuant to Section 3.08),
then this Indenture shall, subject to Section 7.06, 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 8.02. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any money or securities held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; provided, however, that the Trustee or such Paying
Agent, before being required to make any such return, may, at the expense of
the Company, cause to be published once in The Wall Street Journal or another daily






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newspaper of national circulation or mail to each such Holder
notice that such money or securities remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing, any unclaimed money or securities then remaining will be returned to
the Company. 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 with respect to such money
or securities for that period commencing after the return thereof.



Article IX




AMENDMENTS




         Section 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:




          (a) to cure any ambiguity, omission, defect or inconsistency;
provided, however, that such amendment does not materially
adversely affect the rights of any Securityholder;




          (b) to comply with Article 5 or Section 11.14;




          (c) to provide for uncertificated Securities in addition to or in
place of certificated Securities so long as such action shall not
adversely affect the interests of the Holders of the Securities in any
material respect;




          (d) to make any change that does not materially adversely affect the
rights of any Securityholder;




          (e) to add to the covenants or obligations of the Company hereunder
or to surrender any right, power or option herein conferred upon the
Company;




          (f) to secure the Company’s obligations under the Securities and
this Indenture; or




          (g) increase the contingent interest to be paid to Holders; or




          (h) make any change to the Original Principal Amount of Securities
whose Holders must consent to an amendment or supplement to this
Indenture.




          (i) to make any change to comply with the TIA, or any amendment
thereafter, or any requirement of the SEC in connection with the
qualification of this Indenture under the TIA or any amendment thereof.



         Section 9.02. With Consent of Holders. With the written consent of
the Holders of at least a majority in aggregate Original Principal Amount of
the Securities at the time






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outstanding, the Company and the Trustee may amend
this Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment or supplement to this Indenture or the
Securities may not:




          (a) alter the manner or rate of accrual or payment of the Contingent
Principal Amount or contingent interest on any Security;




          (b) make any Security payable in money or securities other than that
stated in the Security;




          (c) make any reduction in the Original Principal Amount, Contingent
Principal Amount, Redemption Price, Purchase Price or Change in Control
Purchase Price with respect to any Security;




          (d) make any change that adversely affects the right to convert any
Security (including the right to receive cash in lieu of Common Stock
except as set forth in Section 9.01(e));




          (e) make any change that adversely affects the right to require the
Company to purchase the Securities pursuant to Sections 3.08 and 3.09
hereof;




          (f) impair the right of a Holder to institute a suit for the
enforcement of any payment with respect to, or conversion of, the
Securities;



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



         After an amendment under this Section 9.02 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.



         Section 9.03. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA as then in effect.



         Section 9.04. Revocation and Effect of Consents, Waivers and
Actions. Until an amendment or waiver becomes effective, a consent to it
or any other action by a Holder of a Security hereunder is a continuing consent
by the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder’s
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder’s Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or
action becomes effective, it shall bind every Securityholder, except as
provided in Section 9.02.



         Section 9.05. Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and






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



         Section 9.06. Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.01) shall be fully protected in relying
upon, an Officers’ Certificate
and an Opinion of Counsel stating that such amendment is authorized or
permitted by this Indenture.



         Section 9.07. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.



Article X




CONTINGENT INTEREST




         Section 10.01. Contingent Interest. Commencing on June 1, 2007,
the Company shall make contingent interest payments to the holders of
Securities, as set forth in Section 10.02 below, during any six month period
from June 1 to November 30 and from December 1 to May 31 (each a “Semiannual
Period”) if, but only if, the LYONs Market Price of one Security
during the relevant Measurement Period equals or exceeds 120% of the Contingent
Principal Amount of such Security as of the May 31st or November 30th preceding
the relevant Semiannual Period. During any Semiannual Period when contingent
interest is payable pursuant to this section, each contingent interest payment
due and payable on each $1,000 Original Principal Amount of Security shall be
calculated for each of the first three months and the second three months of
the applicable Semiannual Period, and in each instance shall equal the greater
of (i) the sum of all regular cash dividends paid by the Company per share on
the Common Stock during the applicable three months of such Semiannual Period
multiplied by the Conversion Rate or (ii) $0.16 multiplied by 13.8213.



         As used in this Article 10 “Measurement Period” means the five
Trading Days ending on the third scheduled Trading Day immediately preceding
the start of the relevant Semiannual Period. Notwithstanding the above, if the
Company should declare a dividend for which the record date for such dividend
(the “Common Stock Record Date”) falls prior to the first day of a
Semiannual Period, but the payment date for such dividend falls within such
Semiannual Period, then the “Measurement Period” shall mean the five
Trading Days ending on the third Trading Day immediately preceding such Common
Stock Record Date. “LYONs Market Price”, means,






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as of any date of determination, the average of the secondary market bid quotations per $1,000
Original Principal Amount of Securities obtained by the Bid Solicitation Agent
for $10 million Original Principal Amount of Securities at approximately 4:00
p.m., New York City time, on such determination date from three independent
nationally recognized securities dealers (none of which shall be an Affiliate
of the Company) selected by the Company; provided, however, if
(a) at least three such bids are not obtained by the Bid Solicitation Agent or
(b) in the Company’s reasonable judgment, the bid quotations are not indicative
of the secondary market value of the Securities as of such determination date,
then the LYON Market Price for such determination date shall equal the product
of (i) the Conversion Rate in effect as of such determination date multiplied
by (ii) the Average Sale Price of the Common Stock for the five trading days
ending on such determination date, appropriately adjusted to take into account
the occurrence, during the period commencing on the first of such trading days
during such five trading day period and
ending on such determination date, of any event described in Section
11.06, 11.07 or 11.08 (subject to the conditions set forth in Sections 11.09
and 11.10) hereof.



         The Contingent Principal Amount of the Securities will continue to accrue
at the applicable Yield whether or not contingent interest payments are made.



         Section 10.02. Payment of Contingent Interest; Contingent Interest
Rights Preserved.



         If payable, contingent interest shall be paid on the payment date for the
related Common Stock dividend or, if the Company does not pay a regular cash
dividend on its Common Stock during a Semiannual Period, on the last day of
such Semiannual Period (in each case, a “Contingent Interest Payment
Date”). Contingent Interest payments on any Security that are payable, and
are punctually paid or duly provided for, on any Contingent Interest Payment
Date shall be paid to the person who is the holder of that Security at the
close of business on the relevant Common Stock Record Date or, if the Company
does not pay a regular cash dividend on its Common Stock during a Semiannual
Period, to the person who is the holder of that Security on the 15th day
preceding the last day of such Semiannual Period (each, a “Contingent Interest
Record Date”). Each payment of contingent interest on any Security shall be
paid in same-day funds by transfer to an account maintained by the payee
located inside the United States. In the case of a global Security, interest
payable on any Contingent Interest Payment Date will be paid to the Depositary
for the purpose of permitting DTC to credit the interest received by it in
respect of such global Security to the accounts of the beneficial owners
thereof.



         Upon determination that Holders of Securities will be entitled to receive
contingent interest during a Semiannual Period, on or prior to the start of
such Semiannual Period, the Company will issue a press release and publish such
information on its website for a period of not less than 120 days or, at the
Company’s option, otherwise publicly disclose such information.



         Section 10.03. Bid Solicitation Agent.



         The Bid Solicitation Agent shall solicit bids from securities dealers
which the Company indicates are willing to bid for the Securities. The Company
initially appoints the Trustee to act as the Bid Solicitation Agent. The
Company may change the Bid Solicitation Agent at its






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discretion, provided, however, the Bid Solicitation Agent may not be an Affiliate of the Company.



Article XI




CONVERSION




         Section 11.01. Conversion Privilege. A Holder of a Security may
convert such Security into shares of Common Stock at any time during the period
stated in paragraph 9 of the Securities, subject to the provisions of this
Article 11. The number of shares of Common Stock issuable upon conversion of a
Security per $1,000 of Original Principal Amount thereof shall be determined in
accordance with the provisions of paragraph 9 in the Securities. The number of
Shares issuable upon conversion of a Security per $1,000 of Original Principal
Amount thereof shall equal 13.8213, subject to adjustment.



         A Holder may convert a portion of a Security if the portion is $1,000
Original Principal Amount or an integral multiple of $1,000 Original Principal
Amount. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.



         “Time of Determination” means the time and date of the earlier of
(i) the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 11.07 or 11.08
applies and (ii) the time (“Ex-Dividend Time”) immediately prior to the
commencement of “ex-dividend” trading for such rights, warrants or options or
distribution on the New York Stock Exchange or such other national or regional
exchange or market on which the Common Stock is then listed or quoted.



         Section 11.02. Conversion Procedure. To convert a Security, a
Holder must satisfy the requirements in paragraph 9 of the Securities. The
date on which the Holder satisfies all those requirements is the conversion
date (the “Conversion Date”). As soon as practicable after the Conversion
Date, the Company shall deliver to the Holder, through the Conversion Agent, a
certificate for the number of full shares of Common Stock issuable upon the
conversion and cash in lieu of any fractional share determined pursuant to
Section 11.03. The Company shall determine such full number of shares and the
amounts of the required cash with respect to any fractional share, and shall
set forth such information in a certificate delivered to the Conversion Agent.
The Conversion Agent shall have no duties under this paragraph unless and until
it has received such certificate.



         The person in whose name the certificate is registered shall be treated as
a stockholder of record on and after the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the person or persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender shall be effective to constitute the person or
persons entitled to receive such shares of Common Stock as the record holder or
holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such






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conversion shall be at the Conversion Rate in effect on the date that such Security shall
have been surrendered for conversion, as if the stock transfer books of the
Company had not been closed. Upon conversion of a Security, such person shall
no longer be a Holder of such Security.



         Holders may surrender a Security for conversion by means of book-entry
delivery in accordance with paragraph 9 of the Securities and the regulations
of the applicable book entry facility.



         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 11. On conversion of a Security, that portion of accrued Tax Original
Issue Discount and increases in the Contingent Principal Amount attributable to
the period from the Issue Date of the Security through the Conversion Date and
(except as provided below) accrued contingent interest, if any, with respect to
the converted Security shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through
delivery of the Common Stock (together with the cash payment, if any, in lieu
of fractional shares) in exchange for the Security being
converted pursuant to the provisions hereof; and the fair market value of
such shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for accrued Tax Original Issue Discount and the increase in Contingent
Principal Amount from the Issue Date through the Conversion Date and accrued
contingent interest, and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the provisions
hereof.



         If the Holder converts more than one Security at the same time, the number
of shares of Common Stock issuable upon the conversion shall be based on all
Securities converted.



         A Security surrendered for conversion based on (a) the Common Stock price
may be surrendered for conversion until the close of business on the Business
Day immediately proceeding March 13, 2032, (b) a credit downgrade may be
surrendered for conversion until the close of business on any Business Day
during the period of the credit downgrade as more fully described in paragraph
9 of the Security, (c) the Security being called for redemption may be
surrendered for conversion at any time prior to the close of business on the
second Business Day immediately preceding the Redemption Date, and (d) upon the
occurrence of certain corporate transactions more fully described in paragraph
9 of the Security may be surrendered for conversion at any time from and after
the date which is 15 days prior to the anticipated effective date of such
transaction until 15 days after the actual date of such transaction, and if
such day is not a Business Day, the next occurring Business Day following such
day.



         Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.



         Section 11.03. Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall






49






 






be determined, to the nearest 1/1,000th of a share, by multiplying the Sale Price of the Common
Stock, on the last Trading Day prior to the Conversion Date, of a full share by
the fractional amount and rounding the product to the nearest whole cent.



         Section 11.04. Taxes on Conversion. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder’s name. The
Conversion Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder’s name until the Conversion
Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder’s name. Nothing herein
shall preclude the Company from any tax withholding or directing the
withholding of any tax required by law or regulations.



         Section 11.05. Company to Provide Stock. The Company shall,
prior to issuance of any Securities under this Article 11, and from time to
time as may be necessary, reserve out of its
authorized but unissued Common Stock a sufficient number of shares of
Common Stock to permit the conversion of the Securities.



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



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



         Section 11.06. Adjustment for Change in Capital Stock. If, after
the Issue Date of the Securities, the Company:




          (a) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock or shares of other capital stock of the
Company;




          (b) subdivides its outstanding shares of Common Stock into a greater
number of shares;




          (c) combines its outstanding shares of Common Stock into a smaller
number of shares; or




          (d) issues by reclassification of its Common Stock any shares of its
capital stock (other than rights, warrants or options for its capital
stock);



then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of capital
stock of the Company which such Holder would have owned






50






 






immediately following such action if such Holder had converted the Security immediately prior to such
action.



         The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.



         If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares or other units of two or more classes of capital
stock of the Company, the Conversion Rate shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any such
class or series of capital stock as is contemplated by this Article 11 with
respect to the Common Stock, on terms comparable to those applicable to Common
Stock in this Article 11.



         Section 11.07. Adjustment for Rights Issue.



If after the Issue Date, the Company distributes any rights, warrants or
options to all holders of its Common Stock entitling them, for a period
expiring within 60 days after the record date for such distribution, to
purchase shares of Common Stock at a price per share less than the Sale Price
of the Common Stock as of the Time of Determination, the Conversion Rate shall
be adjusted in accordance with the formula:



	 	 	 
	R’ = R x

	 	(O + N)
	

	 	 
	

	 	(O + [(N x P)/M)]







         where:



         R’ = the adjusted Conversion Rate.



         R = the current Conversion Rate.



         O = the number of shares of Common Stock outstanding on the record date
for the distribution to which this Section 11.07 is being applied.



         N = the number of additional shares of Common Stock offered pursuant to
the distribution.



         P = the offering price per share of the additional shares.



         M = the Average Sale Price, minus, in the case of (i) a distribution to
which Section 11.06(d) applies or (ii) a distribution to which Section 11.08
applies, for which, in each case, (x) the record date shall occur on or before
the record date for the distribution to which this Section 11.07 applies and
(y) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.07 applies, the
fair market value (on the record date for the distribution to which this
Section 11.07 applies) of:






51






 






          (1) the capital stock of the Company distributed in respect of each
share of Common Stock in such Section 11.06(d) distribution; and




          (2) the assets of the Company or debt securities or any rights,
warrants or options to purchase securities of the Company distributed in
respect of each share of Common Stock in such Section 11.08 distribution.



         The Board of Directors shall determine fair market values for the purposes
of this Section 11.07.



         The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 11.07 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when
such rights, warrants or options expire, then the Conversion Rate shall
promptly be readjusted to the Conversion Rate which would then be in effect had
the adjustment upon the issuance of such rights, warrants or options been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.



         No adjustment shall be made under this Section 11.07 if the application of
the formula stated above in this Section 11.07 would result in a value of R’
that is equal to or less than the value of R.



         Section 11.08. Adjustment for Other Distributions. Subject to
11.08(b), if, after the Issue Date of the Securities, the Company distributes
to all holders of its Common Stock any of its assets excluding distributions of
capital stock or debt securities or any rights, warrants or options to purchase
securities of the Company (including securities or cash, but excluding (x)
distributions of capital stock referred to in Section 11.06 and distributions
of rights, warrants or options referred to in Section 11.07 and (y) cash
dividends or other cash distributions that are paid out of consolidated current
net earnings or earnings retained in the business as shown on the books of the
Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends) the Conversion Rate shall be adjusted, subject to
the provisions of Section 11.08(c), in accordance with the formula:



	 	 	 
	R’ =

	 	R x M
	 

	 	 
	 
	 	M - F







where:




         R’ = the adjusted Conversion Rate.



         R = the current Conversion Rate.



         M = the Average Sale Price, minus, in the case of a distribution to which
Section 11.06(d) applies, for which (i) the record date shall occur on or
before the record date for the distribution to which this Section 11.08 applies
and (ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.08






52






 






applies, the fair market value (on the record date for the distribution to which this
Section 11.08 applies) of any capital stock of the Company distributed in
respect of each share of Common Stock in such Section 11.06(d) distribution.



         F = the fair market value (on the record date for the distribution to
which this Section 11.08 applies) of the assets, securities, rights, warrants
or options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 11.08 is being applied (including, in the
case of cash dividends or other cash distributions giving rise to an
adjustment, all such cash distributed concurrently).



         The Board of Directors shall determine fair market values for the purposes
of this Section 11.08.



         The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 11.08 applies.



         For purposes of this Section 11.08, the term “Extraordinary Cash Dividend”
shall mean the amount of any cash dividend or distribution with respect to the
Common Stock that, together with the aggregate amount of other cash dividends
on the Common Stock to be aggregated with
such cash dividend in accordance with the provisions of this paragraph,
equals or exceeds the threshold percentage set forth in item (i) below. For
purposes of item (i) below, the “Ex-Dividend Measurement Period” with respect
to a cash dividend on the Common Stock shall mean the 365 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect to such
cash dividend, and the “Relevant Cash Dividends” with respect to a cash
dividend on the Common Stock shall mean the cash dividends on the Common Stock
with Ex-Dividend Times occurring in the Measurement Period.




(i) If, upon the date prior to the Ex-Dividend Time with respect to
a cash dividend on the Common Stock, the aggregate amount of such
cash dividend together with the amounts of all Relevant Cash
Dividends equals or exceeds on a per share basis the sum of (a) 5%
of the Sale Price of the Common Stock on the last Trading Day
preceding the date of declaration by the Board of Directors of the
cash dividend or distribution with respect to which this provision
is being applied, and (b) the quotient of the amount of any
contingent interest paid on a Security during the Ex-Dividend
Measurement Period and divided by the conversion rate in effect on
the payment date of such relevant Contingent Interest Payment Date,
then such cash dividend together with all Relevant Cash Dividends,
shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section
11.08, the value of “F” shall be equal to (y) the aggregate amount
of such cash dividend together with the amount of all Relevant Cash
Dividends, minus (z) the aggregate amount of all Relevant Cash
Dividends for which a prior adjustment in the Conversion Rate was
previously made under this Section 11.08.






53






 






In making the determinations required by item (i) above, the amount
of cash dividends paid on a per share basis and the amount of any
Relevant Cash Dividends specified in item (i) above, shall be
appropriately adjusted to reflect the occurrence during such period
of any event described in Section 11.06.




          (a) If, after the Issue Date, the Company pays a dividend or makes a
distribution to all holders of its Common Stock consisting of capital
stock of any class or series, or similar equity interests, of or relating
to a Subsidiary or other business unit of the Company, the Conversion
Rate shall be adjusted in accordance with the formula:



R’ = R x (1 + F/M)




where:




         R’ = the adjusted Conversion Rate.



         R = the current Conversion Rate.



         M = the average of the Sale Prices of the Common Stock for the ten (10)
Trading Days commencing on and including the fifth Trading Day after the date
on which “ex-dividend trading” commences for such dividend or distribution on
The New York Stock Exchange or such other national or regional exchange or
market which such securities are then listed or quoted (the “Ex-Dividend
Date”).



         F = the fair market value of the securities distributed in respect of
each share of Common Stock for which this Section 11.08(a) applies shall mean
the number of securities distributed in respect of each share of Common Stock
multiplied by the average of the Sale Prices of those securities distributed
for the ten (10) Trading Days commencing on and including the fifth Trading Day
after the effectiveness of the Ex-Dividend Date.




          (b) In the event that, with respect to any distribution to which
Section 11.08(a) or (b) would otherwise apply, the difference between
“M-F” is less than $1.00 or “F” is equal to or greater than “M”, then the
adjustment provided by Section 11.08(a) shall not be made and in lieu
thereof the provisions of Section 11.14 shall apply to such distribution.



         Section 11.09. When Adjustment May Be Deferred. No adjustment in
the Conversion Rate need be made unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Rate. Any adjustments
that are not made shall be carried forward and taken into account in any
subsequent adjustment.



         All calculations under this Article 11 shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be.



         Section 11.10. When No Adjustment Required. No adjustment need
be made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14
if Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to






54






 






be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in
the transaction. Such participation by Securityholders may include
participation upon conversion provided that an adjustment shall be made at such
time as the Securityholders are no longer entitled to participate.



         No adjustment need be made for rights to purchase Common Stock pursuant to
a Company plan for reinvestment of dividends or interest.



         No adjustment need be made for a change in the par value or no par value
of the Common Stock.



         To the extent the Securities become convertible pursuant to this Article
11 into cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.



         Notwithstanding any provision to the contrary in this Indenture, no
adjustment shall be made in the Conversion Rate to the extent, but only to the
extent, such adjustment results in the following quotient being less than the
par value of the Common Stock: (i) the Contingent Principal Amount as of the
date such adjustment would otherwise be effective divided by (ii) the
Conversion Rate as so adjusted.



         No adjustment will be made pursuant to this Section 11 which would result,
through the application of two or more provisions hereof, in the duplication of
any adjustment.



         Section 11.11. Notice of Adjustment. Whenever the Conversion
Rate is adjusted, the Company shall promptly mail to Securityholders a notice
of the adjustment. The Company
shall file with the Trustee and the Conversion Agent such notice and a
certificate from the Company’s independent public accountants briefly stating
the facts requiring the adjustment and the manner of computing it. Upon
receipt by it of such notice, the Conversion Agent will promptly mail such
notice to Securityholders at the Company’s expense. The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect to
any such certificate except to exhibit the same to any Holder desiring
inspection thereof.



         Section 11.12. Voluntary Increase. The Company from time to time
may increase the Conversion Rate by any amount for any period of time.
Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice of
the increase. The Company shall mail the notice at least 15 days before the
date the increased Conversion Rate takes effect. The notice shall state the
increased Conversion Rate and the period it will be in effect.



         A voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.






55






 





         Section 11.13. Notice of Certain Transactions. If:




          (a) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or




          (b) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or




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



then the Company shall mail to Securityholders and file with the Trustee and
the Conversion Agent a notice stating the proposed record date for a dividend
or distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at
least 15 days before such date. Failure to file or mail the notice or any
defect in it shall not affect the validity of the transaction.



         Section 11.14. Reorganization of Company; Special Distributions.
If the Company is a party to a transaction subject to Section 5.01 (other than
a sale of all or substantially all of the assets of the Company in a
transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash, property or other assets of the
Company or any other person) or a merger or binding share exchange which
reclassifies or changes its outstanding Common Stock, the person obligated to
deliver securities, cash or other assets upon conversion of Securities shall
enter into a supplemental indenture. If the issuer of securities deliverable
upon conversion of Securities is an Affiliate of the successor Company, that
issuer shall join in the supplemental indenture.



         The supplemental indenture shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which
such Holder would have received immediately after the consolidation, merger,
binding share exchange or transfer if such Holder had converted the Security
immediately before the effective date of the transaction, assuming (to the
extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.



         If this Section applies, neither Section 11.06 nor 11.07 applies.



         If the Company makes a distribution to all holders of its Common Stock of
any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that, but for the provisions of Section
11.08(c), would otherwise result in an adjustment in the Conversion Rate
pursuant to the provisions of Section 11.08, then, from and after the record
date for determining the holders of Common Stock entitled to receive the
distribution, a Holder of a Security that converts such Security in accordance
with the provisions of this Indenture shall






56






 






upon such conversion be entitled to receive, in addition to the shares of Common Stock into
which the Security is convertible, the kind and amount of securities, cash
or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of Common Stock entitled to receive the
distribution.



         Section 11.15. Company Determination Final. Any determination
that the Company or the Board of Directors must make pursuant to Section 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.



         Section 11.16. Trustee’s Adjustment Disclaimer. The Trustee has
no duty to determine when an adjustment under this Article 11 should be made,
how it should be made or what it should be. The Trustee has no duty to
determine whether a supplemental indenture under Section 11.14 need be entered
into or whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company’s failure to
comply with this Article 11. Each Conversion Agent (other than the Company or
an Affiliate of the Company) shall have the same protection under this Section
11.16 as the Trustee.



         Section 11.17. Simultaneous Adjustments. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06(d), 11.07 or 11.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 11.06,
second, the provisions of Section 11.08 and, third, the provisions of Section
11.07.



         Section 11.18. Successive Adjustments. After an adjustment to
the Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.



         Section 11.19. Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of
Securities pursuant to this Article 11 shall be entitled to receive the
appropriate number of Rights, if any, and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the Rights or by the terms of any other
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a “Rights Agreement”). Provided that such
Rights Agreement requires that each share of Common Stock issued upon
conversion of Securities at any time prior to the distribution of separate
certificates representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 11, there shall
not be any adjustment to the conversion privilege or Conversion Rate as a
result of the issuance of Rights, the distribution of separate certificates
representing the Rights, the exercise or redemption of such Rights in
accordance with any such Rights Agreement, or the termination or invalidation
of such Rights.






57






 





Article XII




PAYMENT OF CONTINGENT INTEREST




         Section 12.01. Contingent Interest Payments. If applicable,
contingent interest on any Security that is payable, and is punctually paid or
duly provided for, on any Contingent Interest Payment Date shall be paid to the
person in whose name that Security is registered at the close of business on
the record date specified in Section 10.02 (“Regular Record Date”) at
the office or agency of the Company maintained for such purpose. Each
installment of contingent interest on any Security shall be paid in same-day
funds by transfer to an account maintained by the payee located inside the
United States. In the case of a Global Security, contingent interest payable
on any applicable payment date will be paid to the Depositary, with respect to
that portion of such Global Security held for its account by Cede & Co. for the
purpose of permitting such party to credit the interest received by it in
respect of such Global Security to the accounts of the beneficial owners
thereof.



         Section 12.02. Defaulted Interest. Any contingent interest on any
Security that is payable, but is not punctually paid or duly provided for,
within 30 days following any Contingent Interest Payment Date (herein called
“Defaulted Interest”, which term shall include any accrued and unpaid interest
that has accrued on such defaulted amount in accordance with paragraph 1 of the
Securities), shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company at its election
in each case, as provided in clause (a) or (b) below:




          (a) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Securities are registered at the close
of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
(the “Special Record Date”) for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than ten (10) days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities at his address as it appears on the list of Securityholders
maintained pursuant to Section 2.05 not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to be published at
least once in The Wall Street Journal, but such





58






 





publications shall not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Securities are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant
to the following clause (b).




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



         Section 12.03. Interest Rights Preserved. Subject to the
foregoing provisions of this Article 12 and Section 2.06, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to contingent
interest accrued and unpaid, which were carried by such other Security.



Article XIII




MISCELLANEOUS




         Section 13.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required or deemed to be included in this Indenture by the TIA, the required or
deemed provision shall control.



         Section 13.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:




          if to the Company:




Merrill Lynch & Co., Inc.

222 Broadway, 17th Floor

New York, New York 10038

Attention: Secretary




with a copy to:




Merrill Lynch & Co., Inc.

4 World Financial Center, 18th Floor

New York, New York 10080

Attention: Treasurer






59






 






          if to the Trustee:




JPMorgan Chase Bank

450 West 33rd Street

New York, New York 10001

Attention: Institutional Trust Services



         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 given to a Securityholder shall be mailed by
first-class mail to the Securityholder at the Securityholder’s address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.



         Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.



         If the Company mails a notice or communication to the Securityholders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.



         Section 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).



         Section 13.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:




          (a) an Officers’ Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and




          (b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.



         Section 13.05. Statements Required in Certificate or Opinion. Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:




          (a) a statement that each person making such Officers’ Certificate
or Opinion of Counsel has read such covenant or condition;






60






 






          (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers’ Certificate or Opinion of Counsel are based;




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




          (d) a statement that, in the opinion of such person, such covenant
or condition has been complied with.



         Section 13.06. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



         Section 13.07. Rules By Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of the Securityholders. The Registrar, Conversion Agent and the Paying
Agent may make reasonable rules for their functions.



         Section 13.08. [Reserved].



         Section 13.09. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.



         Section 13.10. No Recourse Against Others. A director, Officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.



         Section 13.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.



         Section 13.12. Multiple Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.



         Section 13.13. References. All section references are to sections
of this Indenture unless specified otherwise.






61






 





         Section 13.14. Calculations. The Company shall be solely
responsible for making all calculations called for under the Securities and
this Indenture. Such calculations include, but are not limited to, the
calculations under Articles 3, 4, 6,10, 11 and 12 hereof. The Company
covenants to make all such calculations in good faith. Absent manifest error,
such calculations shall be final and binding on Holders. The Company shall
promptly provide a schedule of all its calculations to the Trustee. The
Trustee shall always be entitled to assume that the Company has
acted in good faith, and may rely on and shall be fully protected and
shall incur no liability in relying on any calculation performed by the Company
under or pursuant to the Indenture.



         Section 13.15. Tax Matters.




          (a) Tax Treatment. The parties hereto hereby agree, and each Holder
by its purchase of a Security hereby agrees:




               (1) to treat the Securities as indebtedness of the Company for all
tax purposes;




               (2) to treat the Securities as indebtedness that are subject to the
special regulations governing contingent payment debt instruments that
are contained in U.S. Treasury Regulation section 1.1275-4; and




               (3) to treat any payment to and receipt by a Holder of Common Stock
upon conversion of a Security, or upon a redemption of a Security where
the Company elects to pay in Common Stock, as a contingent payment under
Treasury Regulation section 1.1275-4(b) that will result in an adjustment
under Treasury Regulation section 1.1275-4(b)(3)(iv) and Treasury
Regulation section 1.1275-4(b)(6).




          (b) Comparable Yield and Projected Payment Schedule. Solely for
purposes of applying Treasury Regulation section 1.1275-4 to the
Securities:




               (1) for United States Federal income tax purposes, the Company shall
accrue interest with respect to outstanding Securities as original issue
discount according to the “noncontingent bond method,” as set forth in
Treasury Regulation Section 1.1275-4(b);




               (2) the Company has determined that the comparable yield, as defined
in Treasury Regulation section 1.1275-4(b)(4)(i), for the Securities is
5.714%, compounded semiannually;




               (3) the Company has determined that the projected payment schedule,
as defined in Treasury Regulation section 1.1275-4(b)(4)(ii), for the
Securities consists of the projected payment schedule referred to in (5)
below;




               (4) the Company acknowledges and agrees, and each Holder and any
beneficial holder of a Security, by its purchase of a Security shall be
deemed to acknowledge and agree, that (i) the comparable yield and the
projected payment schedule are determined on the basis of an assumption
of linear growth of stock price and a





62






 





constant dividend yield, (ii) the comparable yield and the projected payment schedule are not determined
for any purpose other than for the purpose of applying Treasury
Regulation section 1.1275-4(b)(4) to the Securities and (iii) the
comparable yield and the projected payment schedule do not constitute a
projection or representation regarding the actual amounts payable on the
Securities; and




               (5) the projected payment schedule, as defined in Treasury
Regulation section 1.1275-4(b)(4)(ii) for the Securities is set forth in
Annex 1 hereto.






63






 





SIGNATURES




         IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.

	 	 	 	 	 
	 	MERRILL LYNCH & CO., INC.

 	 
	 	By:  	/s/ John C. Stomber
 	 
	 	 	Name:  	John C. Stomber 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK

 	 
	 	By:  	/s/ Natalie B. Pesce
 	 
	 	 	Name:  	Natalie B. Pesce 	 
	 	 	Title:  	Trust Officer 	 
	 







 






 





ANNEX 1




Projected Payment Schedule*




	 	 	 
	Quarterly Period Ending	 	Projected Payment per LYON
	 
	 	 

	June 1, 2002
	 	—

	September 1, 2002
	 	—

	December 1, 2002
	 	—

	March 1, 2003
	 	—

	June 1, 2003
	 	—

	September 1, 2003
	 	—

	December 1, 2003
	 	—

	March 1, 2004
	 	—

	June 1, 2004
	 	—

	September 1, 2004
	 	—

	December 1, 2004
	 	—

	March 1, 2005
	 	—

	June 1, 2005
	 	—

	September 1, 2005
	 	—

	December 1, 2005
	 	—

	March 1, 2006
	 	—

	June 1, 2006
	 	—

	September 1, 2006
	 	—

	December 1, 2006
	 	—

	March 1, 2007
	 	—

	June 1, 2007
	 	—

	September 1, 2007
	 	—

	December 1, 2007
	 	—

	March 1, 2008
	 	—

	June 1, 2008
	 	—

	September 1, 2008
	 	—

	December 1, 2008
	 	—

	March 1, 2009
	 	—

	June 1, 2009
	 	—

	September 1, 2009
	 	—

	December 1, 2009
	 	—

	March 1, 2010
	 	—

	June 1, 2010
	 	—








_______________________





	*	 	The comparable yield and the schedule of projected payments are determined
on the basis of an assumption of constant growth rate of the stock price and a
constant dividend growth rate and are not determined for any purpose other than
for the determination of interest accruals and adjustments thereof in respect
of the Securities for United States federal income tax purposes. The
comparable yield and the schedule of projected payments do not constitute a
projection or representation regarding the amounts payable on Securities.









A-1-1






 





	 	 	 
	Quarterly Period Ending	 	Projected Payment per LYON
	 
	 	 

	September 1, 2010
	 	—

	December 1, 2010
	 	—

	March 1, 2011
	 	—

	June 1, 2011
	 	—

	September 1, 2011
	 	—

	December 1, 2011
	 	—

	March 1, 2012
	 	—

	June 1, 2012
	 	—

	September 1, 2012
	 	—

	December 1, 2012
	 	—

	March 1, 2013
	 	—

	June 1, 2013
	 	—

	September 1, 2013
	 	—

	December 1, 2013
	 	—

	March 1, 2014
	 	—

	June 1, 2014
	 	—

	September 1, 2014
	 	—

	December 1, 2014
	 	—

	March 1, 2015
	 	—

	June 1, 2015
	 	—

	September 1, 2015
	 	—

	December 1, 2015
	 	—

	March 1, 2016
	 	5.13

	June 1, 2016
	 	5.45

	September 1, 2016
	 	5.45

	December 1, 2016
	 	5.45

	March 1, 2017
	 	5.45

	June 1, 2017
	 	5.78

	September 1, 2017
	 	5.78

	December 1, 2017
	 	5.78

	March 1, 2018
	 	5.78

	June 1, 2018
	 	6.14

	September 1, 2018
	 	6.14

	December 1, 2018
	 	6.14

	March 1, 2019
	 	6.14

	June 1, 2019
	 	6.52

	September 1, 2019
	 	6.52

	December 1, 2019
	 	6.52

	March 1, 2020
	 	6.52

	June 1, 2020
	 	6.92

	September 1, 2020
	 	6.92

	December 1, 2020
	 	6.92

	March 1, 2021
	 	6.92











A-1-2






 





	 	 	 
	Quarterly Period Ending	 	Projected Payment per LYON
	 
	 	 

	June 1, 2021
	 	7.35

	September 1, 2021
	 	7.35

	December 1, 2021
	 	7.35

	March 1, 2022
	 	7.35

	June 1, 2022
	 	7.81

	September 1, 2022
	 	7.81

	December 1, 2022
	 	7.81

	March 1, 2023
	 	7.81

	June 1, 2023
	 	8.29

	September 1, 2023
	 	8.29

	December 1, 2023
	 	8.29

	March 1, 2024
	 	8.29

	June 1, 2024
	 	8.81

	September 1, 2024
	 	8.81

	December 1, 2024
	 	8.81

	March 1, 2025
	 	8.81

	June 1, 2025
	 	9.35

	September 1, 2025
	 	9.35

	December 1, 2025
	 	9.35

	March 1, 2026
	 	9.35

	June 1, 2026
	 	9.93

	September 1, 2026
	 	9.93

	December 1, 2026
	 	9.93

	March 1, 2027
	 	9.93

	June 1, 2027
	 	10.55

	September 1, 2027
	 	10.55

	December 1, 2027
	 	10.55

	March 1, 2028
	 	10.55

	June 1, 2028
	 	11.20

	September 1, 2028
	 	11.20

	December 1, 2028
	 	11.20

	March 1, 2029
	 	11.20

	June 1, 2029
	 	11.89

	September 1, 2029
	 	11.89

	December 1, 2029
	 	11.89

	March 1, 2030
	 	11.89

	June 1, 2030
	 	12.63

	September 1, 2030
	 	12.63

	December 1, 2030
	 	12.63

	March 1, 2031
	 	12.63

	June 1, 2031
	 	13.41

	September 1, 2031
	 	13.41

	December 1, 2031
	 	13.41

	March 1, 2032
	 	13.41

	March 13, 2032
	 	4,559.34











A-1-3






 





EXHIBIT A




[FORM OF FACE OF GLOBAL SECURITY]




         FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF
ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE
ISSUE DATE IS MARCH 13, 2002, AND THE YIELD TO MATURITY FOR PURPOSES OF
ACCRUING ORIGINAL ISSUE DISCOUNT IS 5.714% PER ANNUM. THE HOLDER OF THIS
SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN
REQUEST FOR SUCH INFORMATION TO: MERRILL LYNCH & CO., INC., CORPORATE
SECRETARY’S OFFICE, 222 BROADWAY, 17TH FLOOR, NEW YORK, NEW YORK 10038.



         THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR THE INDIVIDUAL DEBT SECURITIES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.



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






 






 





[FORM OF REVERSE SIDE OF LYON]

MERRILL LYNCH & CO., INC.

Liquid Yield OptionTM Note due 2032

(Zero Coupon-Floating Rate-Senior)




	 	 	 
	No. R-

	 	CUSIP: 590188 A73
	Issue Date: March 13, 2002
	 	 
	Original Principal Amount: $
	 	 
	Issue Price: $1,000.00 for each $1,000 Original
	 	 
	Principal Amount
	 	 







         MERRILL LYNCH & CO., INC., a Delaware corporation, promises to pay to Cede
& Co. or registered assigns, on March 13, 2032 the Contingent Principal Amount
of this Security on such date. This Security is issued with an Original
Principal Amount of MILLION DOLLARS ($          ).



         This Security shall not bear interest except as specified on the reverse
side of this Security. The Contingent Principal Amount of this Security, will
accrue as specified on the reverse side of this Security. This Security is
convertible as specified on the reverse side of this Security.






A-2






 





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


	 	 	 	 	 
	Dated: March 13, 2002 	MERRILL LYNCH & CO., INC.

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





TRUSTEE’S CERTIFICATE OF
  

AUTHENTICATION



JPMORGAN CHASE BANK,

as Trustee, certifies that this

is one of the Securities referred

to in the within-mentioned Indenture.



	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 
	 	 	 	 
	 




Dated: March 13, 2002






A-3






 





Liquid Yield OptionTM Note due 2032

(Zero Coupon-Floating Rate-Senior)





	1.	 	Interest.





         This Security shall not bear interest, except as specified in paragraph 5
hereof. At Stated Maturity, the Holder of this Security will receive the
Contingent Principal Amount of this Security on such date, which for each
$1,000 Original Principal Amount will be equal to such Original Principal
Amount of $1,000 per Security increased daily by the applicable Yield as
provided in the Indenture. If the Contingent Principal Amount hereof or any
portion of such Contingent Principal Amount is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 6 hereof, upon the date
set for payment of the Purchase Price or Change in Control Purchase Price
pursuant to paragraph 7 hereof or upon the Stated Maturity of this Security) or
if contingent interest, if any, due hereon or any portion of such contingent
interest is not paid when due in accordance with paragraph 5 hereof, then in
each such case the overdue amount shall, to the extent permitted by law, bear
interest at the then applicable Yield, compounded semi-annually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand. The accrual of
such interest on overdue amounts shall be in lieu of, and not in addition to
any subsequent increase in the Contingent Principal Amount.



         The Contingent Principal Amount of each Security will accrue daily at the
applicable Yield applied to the Contingent Principal Amount as of the day
preceding the most recent Yield Reset Date, commencing on June 13, 2002.
Regardless of the level of 3-month LIBOR, the Yield will never be less than
zero and, after March 13, 2007, the Yield will not exceed 5.5% per annum. The
Yield will be calculated using the actual number of days elapsed between the
Yield Reset Dates divided by 360.




	2.	 	Method of Payment.





         Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Contingent Principal Amount, Redemption Prices,
Purchase Price, Change in Control Purchase Prices and at Stated Maturity to
Holders who surrender Securities to a Paying Agent to collect such payments in
respect of the Securities. In addition, the Company will pay contingent
interest, if any. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may make such cash payments by check
payable in such money.




	3.	 	Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.





         Initially, JPMorgan Chase Bank, a banking corporation organized and
existing under the laws of the State of New York, (the “Trustee”), will act as
Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent. The
Company may appoint and change any Paying Agent,






A-4






 






Conversion Agent, Registrar or co-registrar or Bid Solicitation Agent without notice, other than
notice to the Trustee, except that the Company will maintain at least one
Paying Agent in the State of New York, City of New York, Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar. None of the Company, any of its
Subsidiaries or any of their Affiliates shall act as Bid Solicitation Agent.




	4.	 	Indenture.





         The Company has issued the Securities under an Indenture dated as of March
13, 2002 (the “Indenture”), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Securities themselves and the Trust Indenture Act
of 1939, as in effect from time to time (the “TIA”). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the TIA for a statement of those terms.



         The Securities are unsecured and unsubordinated obligations of the Company
limited to $2,300,000,000 aggregate Original Principal Amount (subject to
Section 2.07 of the Indenture) and will rank equally in right of payment to all
the Company’s present and future unsecured and unsubordinated indebtedness.
The Indenture does not limit other indebtedness of the Company, secured or
unsecured.




	5.	 	Contingent Interest.





         Subject to the conditions of the Indenture and the accrual and record date
provisions specified in this paragraph 5, the Company shall pay contingent
interest to the Holders during any six-month period (a “Contingent Interest
Period”) from June 1 to November 30 and from December 1 to May 31, with the
initial six-month period commencing after June 1, 2007, if the average LYON
Market Price for the Measurement Period with respect to such Contingent
Interest Period equals 120% or more of the Contingent Principal Amount of a
Security accrued thereon to the day immediately preceding the first day of the
relevant Contingent Interest Period.



         Contingent interest, if any, will accrue and be payable on such days and
to holders of this Security as of such record dates as provided in Section
10.02 of the Indenture. The Contingent Principal Amount will continue to
increase at the applicable Yield whether or not contingent interest is paid.



         The amount of contingent interest payable per $1,000 Original Principal
Amount hereof in respect of either the first three-month period or the second
three-month period any Contingent Interest Period shall equal the greater of
(x) $0.16 multiplied by 13.8213 and (y) the sum of all Regular Cash Dividends
paid by the Company per share of Common Stock during that three-month period of
the applicable Contingent Interest Period multiplied by the number of shares of
Common Stock into which $1,000 Original Principal Amount of a Security is
convertible pursuant to paragraph 9 hereof as of the accrual date for such
contingent interest.






A-5






 





         Upon determination that Holders will be entitled to receive contingent
interest during a Contingent Interest Period the Company shall issue a press
release and publish such information
on its web site on the World Wide Web for a period of not less than 120
days or, at the Company’s option, otherwise publicly disclose such information.




	6.	 	Redemption at the Option of the Company.





         No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at a Redemption Price equal to the Contingent Principal Amount
of the Securities on the Redemption Date, provided that the Securities are not
redeemable prior to March 13, 2007.




	7.	 	Purchase by the Company at the Option of the Holder.





         Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on March 13, 2005, 2007, 2012, 2017, 2022 and 2027 at a price
equal to the Contingent Principal Amount of the Securities on the Purchase
Date, upon delivery of a Purchase Notice containing the information set forth
in the Indenture, at any time from the opening of business on the date that is
at least 20 Business Days prior to such Purchase Date until the close of
business on the Business Day immediately preceding such Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in
the Indenture.



         The Purchase Price may be paid, at the option of the Company, in cash or
by the issuance and delivery of shares of Common Stock of the Company, or in
any combination thereof.



         At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase all or a portion of
the Securities in integral multiples of $1,000 Original Principal Amount held
by such Holder no later than 35 Business Days after the occurrence of a Change
in Control of the Company occurring on or prior to March 13, 2007 for a Change
in Control Purchase Price for each $1,000 Original Principal Amount of such
Securities equal to the Contingent Principal Amount on the Change in Control
Purchase Date, which Change in Control Purchase Price shall be paid in cash.



         Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent
a written notice of withdrawal within the times and otherwise in accordance
with the provisions of the Indenture.



         If cash (and/or securities if permitted under the Indenture) sufficient to
pay the Purchase Price or Change in Control Purchase Price, as the case may be,
of all Securities or portions thereof to be purchased as of the Purchase Date
or the Change in Control Purchase Date, as the case may be, is deposited with
the Paying Agent on the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Contingent Principal Amount shall cease to increase,
and contingent interest, if any, shall cease to accrue on such Securities (or
portions thereof) immediately after such Purchase Date or Change in Control
Purchase Date, as the case may be, and the Holder thereof shall have no other
rights as such (other than the right to receive the






A-6






 






Purchase Price or Change in Control Purchase Price, as the case may be, if any, upon surrender of such
Security).




	8.	 	Notice of Redemption.





         Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
the Holder’s registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to or on the Redemption Date,
immediately after such Redemption Date, the Contingent Principal Amount shall
cease to increase, and contingent interest, if any, shall cease to accrue on
such Securities or portions thereof. Securities in denominations larger than
$1,000 of Original Principal Amount may be redeemed in part but only in
integral multiples of $1,000 of Original Principal Amount.




	9.	 	Conversion.





         Subject to the provisions of this paragraph 9 and the terms of the
Indenture and notwithstanding the fact that any other condition to conversion
has not been satisfied, Holders may surrender this Security for conversion into
shares of Common Stock at any time at their option until the close of business
on the Business Day immediately preceding March 13, 2032 if, as of the last day
of any calendar quarter beginning with the quarter ending on June 30, 2002, the
Sale Price of the Common Stock for at least 20 Trading Days in a period of 30
consecutive Trading Days ending on the last Trading Day of such quarter is more
than 120% of the accreted conversion price per share of Common Stock on the
last day of such quarter. Securities subject to conversion pursuant to the
condition to conversion contained in this paragraph will remain convertible
notwithstanding changes to the Sale Price of the Common Stock after such
Securities are deemed convertible.



         The “accreted conversion price” per share of Common Stock as of any day
equals the quotient of:




	 	•	 	the Contingent Principal Amount of $1,000
Original Principal Amount of Securities on that day, divided
by
	 
	 	•	 	the number of shares of Common Stock issuable
upon conversion of $1,000 Original Principal Amount of
Securities on that day.





         Subject to the provisions of this paragraph 9 and the Indenture and
notwithstanding the fact any other condition to conversion has not been
satisfied, Holders may convert the Securities into Common Stock on a Conversion
Date during any period in which the credit rating assigned to the Securities by
a Rating Agency is reduced to or below the Applicable Rating. “Rating Agency”
means (1) Moody’s Investors Service, Inc. and its successors
(“Moody’s”), (2) Standard & Poor’s Credit Market Services, a division of
The McGraw-Hill Companies Inc., and its successors (“Standard & Poor’s”)
and (3) Fitch, Inc. (“Fitch”) and its successors. “Applicable Rating”
means (1) Baa1, in the case of Moody’s (or its equivalent under any successor
ratings categories of Moody’s), (2) BBB+, in the case of Standard & Poor’s (or
its equivalent under any






A-7






 






successor ratings categories of Standard & Poor’s),
(3) BBB+ in the case of Fitch (or its equivalent under any successor ratings
categories of Fitch) or (4) the equivalent in respect of ratings categories of
any Rating Agencies which are successors to Moody’s, Standard & Poor’s or
Fitch.



         Subject to the provisions of this paragraph 9 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, a Holder may convert into Common Stock a Security or portion of a
Security which has been called for redemption pursuant to paragraph 6 hereof,
even if the Security, or any portion thereof, is not subject to conversion by
the Holder, provided such Securities are surrendered for conversion prior to
the close of business on the second Business Day immediately preceding the
Redemption Date.



         Subject to the provisions of this paragraph 9 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, in the event that the Company declares a dividend or distribution
described in Section 11.07 of the Indenture, or a dividend or a distribution
described in Section 11.08 of the Indenture where the fair market value of such
dividend or distribution per share of Common Stock, as determined in the
Indenture, exceeds 15% of the Sale Price of the Common Stock on the Trading Day
immediately preceding the date of declaration for such dividend or
distribution, the Securities may be surrendered for conversion beginning on the
date the Company gives notice to the Holders of such right, which shall not be
less than 20 days prior to the Ex-Dividend Time for such dividend or
distribution, and Securities may be surrendered for conversion at any time
thereafter until the close of business on the Business Day prior to the
Ex-Dividend Time or until the Company announces that such dividend or
distribution will not take place. No adjustment to the Conversion Rate or the
ability of the Holders to convert this Security will be made if the Company
provides, as permitted in the Indenture, for Holders to participate in the
transaction without conversion or in other cases specified in the Indenture.



         Subject to the provisions of this paragraph 9 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, in the event the Company is a party to a consolidation, merger or
binding share exchange pursuant to which the Common Stock would be converted
into cash, securities or other property as set forth in Section 11.14 of the
Indenture, the Securities may be surrendered for conversion at any time from
and after the date which is 15 days prior to the date of the anticipated
effective time of such transaction announced by the Company until 15 days after
the actual effective date of such transaction, and at the effective time of
such transaction the right to convert a Security into Common Stock will be
deemed to have changed into a right to convert it into the kind and amount of
cash, securities or other property which the holder would have received if the
holder had converted its Security immediately prior to the transaction.



         A Security in respect of which a Holder has delivered a Purchase Notice or
Change in 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 the terms of the Indenture.






A-8






 





         The initial Conversion Rate is 13.8213 shares of Common Stock per $1,000
Original Principal Amount, subject to adjustment for certain events described
in the Indenture or this paragraph 9. The Company will deliver cash or a check
in lieu of any fractional share of Common Stock due to a Holder, taking into
account all Securities converted by a Holder at the same time.



         Contingent interest, if any, will not be paid on Securities that are
converted; provided, however that Securities surrendered for
conversion during the period from the close of business on the applicable
record date to the opening of business on the date on which such contingent
interest is payable shall be entitled to receive such contingent interest
payable on such Securities on the date on which such contingent interest is
payable and (except Securities with respect to which the Company has mailed a
notice of redemption) Securities surrendered for conversion during such periods
must be accompanied by payment of an amount equal to the contingent interest
with respect thereto that the registered Holder is to receive.



         To convert a Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Company or the
Trustee and (4) pay any transfer or similar tax, if required.



         A Holder may only convert a portion of a Security pursuant to the terms of
this paragraph 9 and in accordance with the Indenture if the Original Principal
Amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
herein and in the Indenture. On conversion of a Security, increases in the
Contingent Principal Amount attributable to the period from the Issue Date
through the Conversion Date, accrued Tax Original Issue Discount and (except as
provided above) accrued contingent interest with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through the delivery of the
Common Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Security being converted pursuant to the terms
hereof; and the fair market value of such shares of Common Stock (together with
any such cash payment in lieu of fractional shares) shall be treated as issued,
to the extent thereof, first in exchange for the increases in the Contingent
Principal Amount accrued through the Conversion Date, accrued Tax Original
Issue Discount and accrued contingent interest, and the balance, if any, of
such fair market value of such Common Stock (and any such cash payment) shall
be treated as issued in exchange for the Issue Price of the Security being
converted pursuant to the provisions hereof.



         Pursuant to the terms and conditions of the Indenture, the Conversion Rate
will be adjusted for dividends or distributions on Common Stock payable in
Common Stock or other capital stock of the Company; subdivisions, combinations
or certain reclassifications of Common Stock; distributions to all holders of
Common Stock of certain rights to purchase Common Stock for a period expiring
within 60 days at less than the Sale Price of the Common Stock at the Time of
Determination; and distributions to such holders of assets or debt securities
of the Company or certain rights to purchase securities of the Company
(excluding certain cash dividends or






A-9






 






distributions). However, no adjustment need be made if Securityholders may participate in the transaction or in
certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.



         If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the
Indenture, the right to convert a Security into Common Stock may be
changed into a right to convert it into securities, cash or other assets of the
Company or another person.



         The Conversion Rate will not be adjusted for increases in the Contingent
Principal Amount or any contingent interest.




	10.	 	[Reserved.]






	11.	 	Defaulted Interest.





         Except as otherwise specified with respect to the Securities, any
contingent interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date or accrual date
for contingent interest, as the case may be, by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company as provided for
in Section 12.02 of the Indenture.




	12.	 	Denominations; Transfer; Exchange.





         The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Original Principal Amount and integral multiples of
$1,000 Original Principal Amount. A Holder may transfer or exchange Securities
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities in respect of which a Purchase
Notice or Change in Control Purchase Notice has been given and not withdrawn
(except, in the case of a Security to be purchased in part, the portion of the
Security not to be purchased) or any Securities for a period of 15 days before
the mailing of a notice of redemption of Securities to be redeemed.




	13.	 	Persons Deemed Owners.





         The registered Holder of this Security may be treated as the owner of this
Security for all purposes.




	14.	 	Unclaimed Money or Securities.





         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 laws. After






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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.




	15.	 	Amendment; Waiver.





         Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Original Principal Amount of the
Securities at the time outstanding and (ii) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate Original
Principal Amount of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the
Company’s obligations under this Security or to add to the Company’s covenants
for the benefit of the Securityholders or to surrender any right or power
conferred, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA, or as necessary in connection
with the registration of the Securities under the Securities Act.




	16.	 	Defaults and Remedies.





         If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate Original Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Securities becoming due and payable
immediately upon the occurrence of such Events of Default.



         Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Original Principal Amount of the Securities at the time outstanding may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing Default (except a Default in
payment of amounts specified in clause (i) or (ii) above) if it determines that
withholding notice is in their interests.




	17.	 	Trustee Dealings with the Company.





         Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its respective Affiliates and may otherwise deal with
the Company or its respective Affiliates with the same rights it would have if
it were not Trustee.






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	18.	 	No Recourse Against Others.





         A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.




	19.	 	Authentication.





         This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee’s Certificate of Authentication on the other
side of this Security.




	20.	 	Abbreviations.





         Customary abbreviations may be used in the name of a Securityholder 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 Gift to Minors
Act).




	22.	 	GOVERNING LAW.





         THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.







         The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture.



Merrill Lynch & Co., Inc.

222 Broadway, 17th Floor

New York, New York 10038

Attention: Secretary




with a copy to:




Merrill Lynch & Co., Inc.

4 World Financial Center 18th Floor

New York, New York 10080

Attention: Treasurer






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ASSIGNMENT FORM




To assign this Security, fill in the form below:



I or we assign and transfer this Security to














(Insert assignee’s soc. Sec. or tax ID no.)















(Print or type assignee’s name, address

and zip code)




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



Date:                                         






CONVERSION NOTICE




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

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



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














(Insert other person’s soc. sec. or tax ID no.)















(Print or type other person’s name, address

and zip code)




Your

Signature:                                         *


(Sign exactly as your name appears on the

other side of this Security)









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





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